Agency Could Only Consider Past Contracts From the Last Five Years. Could It Consider a Contract Mostly Performed Before the Five-Year Window?

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The solicitation required experience references from the last five years. The awardee submitted a reference that had mostly been performed before the five-year window. But GAO said this was ok because performance had extended into the solicitation’s five-year period. 

LPE Strategy, LLC, GAO B-421723, B-421723.3 
  • Experience of Prime Contractor – The solicitation required at least one experience reference from the offeror that would be the prime contractor for the requirement. The protester argued the awardee, which was a joint venture, could not meet this requirement. GAO disagreed. When an agency evaluates the experience of small business joint ventures, the experience of the venture members may be considered experience of the venture. Here, both the joint venture members had performed on predecessor or related contracts with similar requirements. These qualified as experience of the company that would be prime contractor. 
  • Misrepresentation – The protester alleged the awardee had misrepresented its experience when it said one of the joint venture members had been the incumbent contracts. GAO didn’t think this amounted to a misrepresentation. That member performed most of the work under the predecessor contract. 
  • Stale Experience Reference – The solicitation stated the agency would only consider experience references performed in the five years after January 2018. The awardee submitted a contract it had performed in 2017 and part of 2018. The protester argued the agency should not have considered this contract because the protester had not distinguished between activities performed in 2017 and 2018. GAO didn’t see a problem. The solicitation required that recent experience be performed within the last five years. The contract submitted by the awardee may have been partly performed before the five-year window, but it extended into the window. The agency did not err by considering it. 
  • Protester’s Technical Approach – The protester argued the agency had undervalued and not appreciated the strengths of its technical approach. GAO rejected this argument, noting the protester received the highest possible technical rating. 

The protester is represented by Sonia Tabriz, Stuart W. Turner, and Julia Swafford of Arnold & Porter Kaye Scholer, LLP. The awardee is represented by Edward J. Tolchin of Offit Kurman, P.A. The agency is represented by Eno-Obong J. Essien and Martin McEnrue of the Department of Health and Human Services. GAO attorneys Glenn G. Wolcott and Christina Sklarew participated in the decision. 

–Case summary by Craig LaChance, Senior Editor