GAO Delineates Boundary Between Technical Experience and Past Performance

The protester claimed the agency evaluated past performance even though the solicitation didn't contain a past performance factor. But GAO found the agency had not evaluated past performance. Rather, the agency considered the protester’s federal experience as part of the technical evaluation to assess how the awardee would staff and perform the contract. 

American Tech Solutions, LLC, GAO B-422212; B-42212.2 

• Technically Equal – The protester challenged an award. The protester argued the agency erred in finding that the protester and awardee were technically equal. But GAO noted the protester and awardee received the same adjectival ratings, yet the agency had not found them technically equal. The record showed the agency had identified and considered differences between each vendor’s approach. 
• Contractor Acquired Property – The protester said the agency erred in not evaluating contractor-acquired property as part of the price evaluation. GAO found the protester had misread the solicitation. The solicitation did not require vendors to propose or the agency to evaluate prices of contractor-acquired property. Rather, vendors were supposed to include contractor-acquired property under a program management CLIN.  
• Past Performance – The protester contended the agency improperly considered the awardee’s past performance even though the solicitation did not have a past performance factor. GAO rejected the argument. The agency had considered the awardee’s federal experience as part of the technical evaluation. This was relevant to how the awardee would staff and perform the contract. But nothing in the evaluation discussed the quality of the awardee’s past performance.  

The protester is represented by David B. Dempsey of Dempsey Law, PLLC. The awardee is represented by Joseph M. Goldstein of Shutts & Bowen LLP. The agency is represented by Margaret M. Talbot-Bedard and Debra J. Talley of the Army. GAO attorneys Charmaine A. Stevenson and John Sorrenti participated in the decision. 

--Case summary by Craig LaChance, Senior Editor