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The protester argued that the agency muffed the past performance evaluation in several different ways. The court agreed. The agency (1) didn’t apply its own criteria for assessing the scope of past references, (2) failed to explain why it determined references that were smaller than the solicitation were similar in size, and (3) failed to evaluate the past performance of a subcontractor performing a major part of the contract. The court also found that the agency tanked the evaluation of professional compensation and the best value decision. The court enjoined the award and ordered a do-over. 

Management & Training Corporation v. United States, COFC No. 22-560C

Background

The Department of Labor (DOL) issued a solicitation for the operation of a jobs center in Georgia. Six offerors, including Management & Training Corporation (MTC) and Odle Management Group, LLC, submitted proposals. DOL determined that Odle’s second lowest-priced proposal offered the best value to the government. MTC protested the award with GAO, but that protest was denied. MTC then filed a protest with the Court of Federal Claims.

Analysis 

Scope of Past Performance References

The solicitation provided that relevance of offerors’ past performance references would be based, in part, on whether the scope of those projectes was similar to the work required by the solicitation. MTCt alleged the agency erred in assessing the scope of each offeror’s past performance. The evaluation stated that a scope was similar if it included center operations, outreach and admissions, and career transition services. But, MTC argued, the agency determined that projects that only met one of the three criteria were similar in scope. For instance, the agency found that a standalone contract to simply operate a center without outreach and admissions was determined to be similar in scope.

The court agreed with the MTC. Once the agency defined scope as including three different criteria, it was improper for the agency to then find contracts that did not include all three criteria to be relevant.

Size of Past Performance References

The solicitation also stated that relevance of past performances references would be based on the similarity in size to the solicitation. Here, size was defined by the number of expected students at the job center—that is 732. MTC contended that DOL found that several contracts with smaller students,—say 153— were similar in size. 

The court believed MTC had a point. There was nothing in the administrative record explaining why a center with only a few hundred students was similar in size to 732 contemplated by the solicitation. Without an adequate explanation as to why these past contracts were relevant, the court could not conclude that the size assessment was rationally supported.

Subcontractor Past Performance

The solicitation stated that DOL would also consider the past performance of proposed subcontractors that will perform major or critical aspects of the contract. MTC reasoned that Odle had proposed a subcontractor to perform the outreach and admissions portion of the contract, but that DOL had not evaluated the past performance of this subcontractor. The government argued that it didn’t have to evaluate the subcontractor’s past performance because outreach and admissions was not a major part of the contract.

The court did not find the government’s argument credible. Throughout the solicitation, DOL had made clear that it wanted a jobs center with outreach and admissions. Indeed, outreach and admissions was a technical subfactor, indicating it was an important part of the contract. The DOL would not have awarded a contract to an offeror that did not include outreach and admissions in its proposal. In short, the agency should have evaluated the past performance of a subcontractor performing outreach and admissions.

Unequal Treatment

In addition to its past performance argument, MTC asserted a unique unequal treatment argument. The conventional unequal treatment argument alleges that the agency evaluated the protester’s proposal differently from the awardee’s. But in this case, MTC argued DOL evaluated other offerors differently from Odle’s. MTC reasoned that had the agency assessed the same weakness to Odle that it assessed to other offerors, Odle would have received a lower rating, leading to MTC’s being rated higher overall.

The court, however, noted that MTC had not cited authority showing a protester can prevail because an agency disparately evaluated the proposals of other offerors. Moreover, even if this theory was viable, the court did not see how MTC had been prejudiced. MTC’s argument assumed  that correcting the disparate treatment would require the assignment of additional weaknesses to Odle. DOL, however, could also rectify the disparate treatment by retracting the weaknesses assessed to other offerors in which case MTC would not have the highest-rated proposal.

Professional Compensation

The solicitation incorporated FAR 52.222-46, which requires an agency to evaluate professional compensation plans to ensure offerors can hire and retain quality professional services. MTC argued that DOL had not assessed whether professional compensation plans had satisfied all the requirements set forth in FAR 52.222-46.

The court agreed. FAR 52.22-46 requires the agency to compare proposed professional compensation to the compensation being paid the incumbent. There was no evidence DOL made this comparison. 

Best Value Determination

Lastly, the court found that the agency had botched the best value determination by not explaining why the benefits of MTC’s proposal did not merit its higher price. Indeed, the court noted that that agency had found that Odle’s proposal was technically superior or even equal to MTC’s. The SSA had just concluded, without much analysis, that Odle offered the greatest overall benefit.

MTC is represented by Alex P. Hontos. The intervenor, Odle, is represented by John E. McCarthy, Jr., The government is represented by Bret R Vallacher of the Department of Justice.