“But First, Are You Experienced?”: Agency Justified in Rejecting Proposal Due to Lack of Corporate Experience; NIKA Technologies, Inc., GAO B-418563


Protest challenging agency’s evaluation of corporate experience is denied. The protester alleged the agency applied unstated criteria when it penalized the company for lacking preventative maintenance experience even though the corporate experience criteria did not mention the words “preventative maintenance.” But GAO found that preventative maintenance was about 75 percent of the contract. The solicitation discussed preventative maintenance throughout. References to “maintenance” in the corporate experience criteria clearly encompassed “preventative maintenance.” The protester also argued that the agency disparately evaluated proposals because other awardees lacked preventative maintenance experience. But GAO rejected this, finding the awardees actually possessed significant experience with preventative maintenance.

The Army Corps of Engineers posted a solicitation seeking specialized medical operations and maintenance services. The solicitation contemplated the award of multiple IDIQ contracts. NIKA Technologies, Inc. submitted a proposal in response to the solicitation. The Corps, however, eliminated NIKA, finding its proposal unacceptable under the solicitation’s corporate experience factor. NIKA protested.

NIKA first argued that the Corps applied unstated criteria in evaluating its experience. The Corps found that NIKA had failed to demonstrate acceptable preventative maintenance experience. NIKA, however, argued that the corporate experience factor made no mention of “preventative maintenance.”

GAO was unpersuaded. A solicitation is not required to identify every aspect of each factor that might be taken into account; rather, agencies may reasonably take into account considerations, even if unstated, that are reasonably related or encompassed by the evaluation criteria. Here, while the corporate experience criteria did not specifically state the words “preventative maintenance,” preventative maintenance encompassed about 75 percent of the performance contemplated under the contract. The solicitation defined “maintenance” as including preventative maintenance. Indeed, the solicitation separated defined “preventative maintenance.” The Performance Work Statement identified numerous requirements for preventative maintenance. The solicitation clearly put offerors on notice that preventative maintenance was a large component of the required performance.

Indeed, GAO continued, the corporate experience factor expressly required “operations and maintenance” services, which by their very nature, include preventative maintenance services. The evaluation factor required maintenance services in supporting facilities and equipment maintenance services. Preventative maintenance was clearly related to and encompassed by these broad requirements.

Next, NIKA claimed that the Corps failed to consider the experience of one of its subcontractors. NIKA contended that the offeror submitting its proposal was “Team NIKA,” which was comprised of NIKA and its subcontractors. Accordingly, the experience of NIKA’s subcontractors should have been attributed to NIKA.

But GAO found that this argument contravened the solicitation. The corporate experience factor expressly stated that both the prime  and all key subcontractors had to have acceptable maintenance experience. Thus, regardless of how the term “offeror” was defined, the solicitation required that each member of any proposed team had to have experience. The Corps was not required to attribute experience from one team member to another.

NIKA further contended that the evaluation of its corporate experience was unreasonable because the company actually possessed the experience required by the solicitation. GAO reasoned that offerors were required to have preventative maintenance experience. In its proposal, NIKA claimed that it had merely “designed customized preventative maintenance programs.” GAO concluded that designing a preventative maintenance program that is subsequently implemented by an agency is not the same as actually performing preventative maintenance.

Finally, NIKA alleged that the Corps disparately evaluated proposals because two other firms that did not have preventative maintenance experience were awarded contracts. GAO, however, found that both of these other offerors had performed the full spectrum of operational and maintenance services, including preventative maintenance.

NIKA is represented by Anuj Vohra, David B. Robbins, James G. Peyster, and Tyler S. Brown of Crowell & Moring, LLP. Intervenor, J&J Worldwide Service is represented by Adam K. Lasky of Oles, Morrison, Rinker & Baker, LLP. The agency is represented by Tamar Gerhart of the Army. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.

GAO - NIKA Technologies, Inc.