Agency Not Obligated to Seek Out Additional Information to Mitigate Concerns Identified in Past Performance Evaluation; Wolff & Mueller Government Services GmbH & Co. KG, GAO B-419181, B-419181.2


Protest challenging agency’s evaluation of management approach and past performance is denied. The protester objected to a weakness assessed to its proposed personnel because the personnel referenced in the evaluation were from a different proposal. It turned out the agency had used a template from another evaluation and neglected to delete the information concerning an evaluation of the protester in a difference procurement. But GAO found that the protester was not prejudiced by the error because its proposal in this case contained the same weakness identified in the left-over template information. The protester also argued that the agency had a duty to consider additional information that could have mitigated negative past performance information. GAO, however, that the protester had a chance to explain negative past performance in its proposal. The agency had no obligation seek out additional mitigating information.

The Army Corps of Engineers issued a solicitation seeking real property services at U.S facilities in the western part of Germany, Belgium and the Netherlands. Wolff & Mueller Government GmbH and JV JOC Germany BMS (BMS) submitted proposals. The Corps found that BMS had a higher-rated proposal and was more capable of successfully performing the work. The Corps selected BMS for award. Wolff protested.

Wolff objected to weaknesses assigned to its management approach. The Corps assessed Wolff a weakness for including personnel who lacked required quality control and occupational safety training. But the personnel cited in the evaluation were actually from a different Wolff proposal. At the same time the Corps issued the solicitation for western Germany, it had also issued a solicitation for real property support in eastern Germany. Wolff had submitted proposals in response to both solicitations. The evaluation of Wolff’s western Germany proposal referred to individuals referenced in the company’s eastern Germany proposal.

The Corps conceded the error, noting that the evaluators had used the template from the evaluation of eastern Germany proposals but failed to delete some of the information from that evaluation. Nevertheless, the Corps, asserted this mistake did not change the evaluation. Wolff’s proposal for western Germany had the same weaknesses as the eastern Germany proposal—some of the individuals proposed lacked required training.

GAO found the agency’s explanation persuasive, reasoning that Wolff had not been harmed by the agency’s cut-and-paste error. Both the western and eastern proposals had identical weaknesses. Even if the agency had referenced the correct proposal in the evaluation, it would not have improved Wolff’s chance of receiving the award.

Wolff attempted to argue that the weakness assessed to its personnel was unreasonable because the RFP did not require all personnel to have up to date at the time of proposal submission. GAO disposed of this by noting that the RFP specifically stated that the agency would evaluate the extent to which proposed personnel meet specification requirements.

Next, Wolff challenged a weakness assessed to its organizational chart. The agency found that the lines of authority were not clear, and that the generic use of subcontractors were not connected with the prime’s personnel. Additionally, the Corps found, Wolff had one position reporting to a quality control manager when the solicitation required that position to report to the program manager.

Wolff claimed the weakness was unreasonable because the RFP did not require offerors to identify key subcontractors. GAO, however, found that the weakness was not assessed based on a failure to identify subcontractors; rather, the proposal did not identify clear lines of authority for the subcontractors. The RFP required offerors to clearly delineated the lines of authority. The agency reasonably found that the confusing lines of authority for subcontractors merited a weakness.

As to the position that reported to the wrong manager, Wolff argued that its proposal contained an explanatory note the elucidated how that position would eventually report to a senior project official. But GAO found that the explanatory note conflicted with the organizational chart. The Corps reasonably found that the chart failed to delineate the lines of authority in a logical manner.

Wolff also complained about the Corps’ past performance evaluation. Wolff identified five past performance references in its proposal. But the agency identified concerns with references Wolff had not provided. In particular, the Corps was concerned about a letter from another contracting officer on a different Wolff contract that expressed concerns regarding Wolff’s performance of Corps contracts in Europe. Wolff alleged that the Corps had given too much weight to this letter without also considering countervailing arguments that Wolff provided in correspondence to that contracting officer.

As an initial matter, GAO found that contrary to Wolff’s contentions, the company’s low past performance rating was not based solely on the letter. Wolff also had a spat of negative CPARS ratings on other contracts.

Moreover, GAO found, the Corps did not have an obligation to consider additional countervailing information. The FAR requires agencies to allow offerors to provide information on problems identified in past performance references. Here, the RFP allowed offerors to address negative past performance information in their proposals. And Wolff used its proposal to address concerns with its past performance. Beyond this, however, GAO found, agencies are not required to provide a further opportunity to address past performance where, as here, there are no discussions. The Corps was not obligated to seek out or consider additional correspondence that detailed information the protester either did or could have addressed in its proposal.

Wolff is represented by Seamus Curley and Chelsea L. Goulet of Stroock & Stroock & Lavan LLP. The agency is represented by Jason Shippy, Katherine D. Denzel, Leslie M. Reed, and Maureen A. McAndrew of the Army. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.

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