Protest the challenging agency’s decision to use an LPTA source selection scheme is denied, where the requirements were mature and primarily commercial in nature and where the agency set specific standards for technical acceptability. Protest grounds challenging the agency’s decision not to evaluate past performance also are denied, where the agency concluded that a past performance evaluation would provide no beneficial information to the source selection authority because offerors with limited or no past performance cannot be evaluated negatively and because a negative assessment in an SDVOSB set-aside would require a referral to the Small Business Administration for a Certificate of Competency determination.
Data Monitor Systems Inc. challenged the terms of an Air Force solicitation for base operations and support services, arguing that the agency erred by: establishing a lowest-price, technically-acceptable source selection scheme, declining to consider past performance as an evaluation factor, and failing to provide sufficient information to allow offerors to compete on a common basis.
First, argued that the agency’s selection of an LPTA selection scheme, rather than a best-value tradeoff approach, was inappropriate for the procurement, which involves complex and mission-critical services, including complex requirements for fuel transportation and handling, issuing firearms to deploying personnel, airfield management activities, and specialized weather services. According to the protester, these services are not appropriate for an LPTA procurement, especially when the agency will not consider past performance.
In response, the agency explained that the services are mature requirements for defined, primarily commercial services. Because the work must be accomplished in accordance with various Air Force Instructions and Technical Orders, the agency argued the work does not lend itself to the tradeoff process because there is little room for innovation.
GAO found the agency, during the planning process, had considered whether an LPTA scheme was appropriate, and that the terms of the solicitation are consistent with the agency’s conclusions. Many of the individual elements of the PWS reference specific Air Force Instructions or other guidance and many require very specific levels of performance, and personnel with specific minimum qualifications, certifications, or credentials. GAO found that while the PWS contemplated complex services, it also provided extremely detailed minimum requirements for the performance of those services for technical acceptability. Accordingly, GAO found the selection of an LPTA evaluation and selection scheme to be reasonable.
Next, the protester argued the agency’s decision not to consider past performance is an impermissible attempt to reduce its administrative burden by avoiding the SBA certificate of competency process. The protester also disputed the agency’s contention that past performance has not historically been a distinguishing factor in prior procurements, noting that past performance has, in fact, been a relevant distinguishing factor in other comparable procurements, which it identified.
GAO found the agency executed a D&F documenting its conclusion that considering past performance would not provide any significant information for the source selection authority. The D&F identified three reasons for this conclusion: (1) offerors with limited or unknown past performance cannot be evaluated favorably or unfavorably, which in an LPTA context compels an acceptable rating; (2) in an SDVOSB set-aside, negative assessments of past performance would necessitate a referral to the SBA for a Certificate of Competency; and (3) past performance evaluations in two recent similar contracting efforts had not provided a meaningful basis to distinguish between offerors.
As a preliminary matter, GAO explained that pass/fail evaluations of capability issues, such as past performance, are tantamount to responsibility determinations, with the result that a rating of “unacceptable” in these areas is the same as a determination of non-responsibility. For an LPTA procurement, such a finding would be referred to SBA for a COC determination. As a result, GAO has previously questioned the value of including past performance as a separate evaluation factor precisely because the past performance evaluation is ultimately reduced to a matter of the firm’s responsibility, which will be evaluated, in any case, after source selection.
In support of its position, the protester identifies two other allegedly similar contracts in which an LPTA selection scheme was employed and the Air Force terminated or modified the contracts due to alleged poor performance. Although the protester argued that an evaluation of past performance or a best-value tradeoff selection scheme would have prevented these allegedly undesirable outcomes, it did not provide any evidence supporting that claim or linking the evaluation criteria in those procurements to the outcomes. GAO found this speculative argument provided no basis to question the agency’s decision.
Finally, the protester argued the agency did not define its needs in a manner that would permit offerors to compete on a common basis, and that the agency has impermissibly withheld information in its possession which is vital to contract performance. Specifically, the protester contends that the agency has not: (1) provided full repair histories on several items of high-value government-furnished equipment, (2) not included the protester’s conformed rates from the incumbent contract in the RFP, and (3) provided erroneous or misleading estimated data with respect to labor hours.
First, GAO found that the RFP included estimated maintenance workload data (expressed in labor hours and in dollars) for government furnished vehicles, which includes estimated maintenance on the GFE in question. Further, offerors were given an opportunity for a site visit and two rounds of questions to clarify any areas of doubt. While the RFP did not provide a firm cap on an offeror’s maintenance costs, it did provide certain stop-loss or amortization provisions which outlined circumstances in which the contractor’s liability for repair would be limited or would result in the government replacing the GFE at the government’s expense. While the protester argued that these provisions are inadequate, GAO found it did not explain why the complete definition of such risk is vital to performance of the contract or address why the detailed estimated workload data provided in the RFP is not sufficient to allow offerors to compete on a common basis.
In relation to the absence of its conformed wage rates from the RFP, the protester argued that its incumbent contract’s wage conformances are most probably the minimum wages that the Department of Labor would approve. According to the protester, if its competitors are not informed of the prior contract’s wage conformances, they may underestimate the cost of those employees and underbid the protester because of their lack of knowledge.
GAO explained that there is no obligation for the agency to include an incumbent’s conformed rates in the solicitation, which incorporated FAR clause 52.222-41, which provides adequate procedures for offerors to estimate labor costs and compete on an equal basis. Accordingly, GAO found no basis to object to the agency’s decision not to include the conformed wage rates.
Finally, the protester argued that the agency provided erroneous or misleading estimated workload data for certain categories of labor hours. According to the protester, while the RFP claims that estimates of over-and-above workload outside of core hours are based on historical data, the data provided by the agency is inconsistent with the protester’s own historical data. However, GAO found the protester had not demonstrated any errors in the data provided by the agency. The agency used historical data from the past 15 years in preparing the estimates, while the protester has only been the incumbent for the previous 5 years and drew its comparative data from those years. GAO found that the different data sources could easily account for any perceived incongruities. Further, the protester did not provide the data supporting its argument, and instead relied on a handful of examples drawn from the most recent year of workload data.
Data Monitor Systems Inc. is represented by Robert S. Gardner, Angeline R. Burke, and Laura A. Gardner of the Robert S. Gardner Law Office. The government is represented by Alexis J. Bernstein and Captain Justin D. Haselden, Department of the Air Force. GAO attorneys Michael Willems, Eric Ransom, and Edward Goldstein participated in the preparation of the decision.