Agency’s Duty to Consider “Close-at-Hand” Past Performance Information Cannot Remedy Offeror’s Failure to Include Performance Information in Proposal; INTELiTEAMS, Inc., GAO B-418123.4


Protest alleging bad faith and challenging agency’s evaluation is denied. The protester alleged the agency was biased and that it evaluated proposals in a manner designed to select the awardee. GAO found that the protester’s allegations were based on supposition and did not demonstrate bad faith. The protester also objected to a weakness it received for not providing required past performance information. The protester claimed that it had performed previous contracts for the agency, so procurement officials could have just asked their colleagues about the protester’s performance. GAO reasoned that while agencies have a duty to consider past performance information they may be aware of, this duty could not cure a failure to submit required past performance information. In this case, the protester had failed to submit basic past performance information required by the solicitation.

The FBI posted an RFQ for administrative and program support staff. INTELiTEAMS, Inc. and IntelliWare Systems, Inc., submitted the lowest-price quotes. The FBI determined that the disadvantages assigned to INTELiTEAMS’s quote presented an exceptionally high risk. The FBI determined that IntelliWare’s higher-rated higher-priced proposal represented the best value. INTELiTEAMS protested.

INTELiTEAMS alleged that the agency’s actions in the procurement were motivated by bad faith. Essentially, INTELiTEAMS contended that the FBI evaluated quotes in such a way that only IntelliWare could be selected for award. But GAO reasoned that government officials are presumed to act in good faith. GAO will not attribute unfair motives to procurement officials on the basis of supposition. The burden of proving bad faith is a heavy one. Here, INTELiTEAMS had not presented evidence of bias or bad faith. The company’s view that its poor evaluation could only result from bias is not sufficient to prove bad faith.

INTELiTEAMS complained that the FBI ignored information in the quote and in the agency’s possession concerning the company’s past performance. INTELiTEAMS conceded that some of its past clients did not submit a completed past performance template to the agency. But INTELiTEAMS asserted that it included information, and that the FBI should have contacted those clients itself. Indeed, INTELiTEAMS noted that one of its former clients was the FBI, so procurement officials could have easily reached out to their colleagues to ask about INTELiTEAMS’s performance.

GAO noted that agencies sometimes have an obligation to consider past performance information about which they are aware. But that obligation is not intended to remedy a vendor’s failure to include information in its own quotation. In this case, INTELiTEAMS failed to provide the most basis past performance information—like contract numbers—for its references, and did not include additional information that may have assisted the FBI in identifying the referenced contracts.

INTELiTEAMS noted that the FBI allowed vendors to submit past performance templates that they had used for different FBI solicitations. INTELiTEAMS claimed that it had submitted templates from other solicitations. But GAO found that the INTELiTEAMS’s quote did not include previously submitted past performance templates.

INTELiTEAMS next argued that a deficiency assessed to its quote under the past performance factor was an improper nonresponsibility determination. INTELiTEAMS contended that because it was a small business, the FBI should have referred the deficiency to the SBA under the certificate of competency program. But GAO found that the deficiency was not a responsibility determination. Rather, the FBI assigned the deficiency because INTELiTEAMS failed to include all the information required by the solicitation. There was not need to refer this issue to the SBA.

INTELiTEAMS objected to a weakness it received for failing to include a transition plan. INTELiTEAMS claimed it submitted a transition plan. GAO found that the INTELiTEAMS’s quote merely discussed platitudes about the difficulties of replacing incumbent staff. The quote did not actually discuss how contract duties would be transferred from one vendor to another. Indeed, the quote did not even mention the word “transition.”

INTELiTEAMS further alleged that the FBI unreasonably assigned a weakness to its proposal for failing to include key personnel resumes. GAO found that INTELiTEAMS actually did not include the resumes, so the weakness was warranted.

Lastly, INTELiTEAMS contended that the best value tradeoff was flawed because the FBI neither acknowledged nor evaluated price. GAO rejected this argument finding that the FBI evaluated price by comparing quotes to a government estimate. GAO also noted the SSA qualitatively evaluated proposals and reasonably found that IntelliWare submitted a far superior quote. While INTELiTEAMS’s price was lower, its price was consistent with the agency’s determination that the company lacked an understanding of solicitation requirements.

INTELiTEAMS is represented by Jerry Mannes. The intervenor, IntelliWare, is represented by Damien C. Specht, Rachel K. Plymale, and Caitlin A. Crujido of Morrison & Foerster, LLP. The agency is represented by Michael P. Giordano and Kelli Beene of the Department of Justice. GAO attorneys Heather Self and Peter H. Tran participated in the preparation of the decision.