The protester alleged the agency ignored the awardee’s lack of past performance or experience. COFC rejected the argument. FAR 15.304(c)(3)(iii) does not require contracting officers to evaluate past performance if they document the reason it was not appropriate to do so. Furthermore, the solicitation did not require the evaluation of past performance.
Thales USA, Inc. v. United States, COFC No. 24-1187
- Protest – The agency awarded a contract for a portable air navigation system. The protester, a disappointed offeror, claimed the agency unequally evaluated the proposals and used a flawed price evaluation with unequal discussions.
- Experience/Past Performance – The protester claimed the agency ignored the awardee’s lack of experience or past performance. COFC rejected this argument because neither experience nor past performance were stated evaluation criteria. Additionally, under the FAR, past performance did not need to be evaluated if the contracting officer documents the reason it was not an appropriate evaluation factor for the acquisition. FAR 15.304(c)(3)(iii).
- Unequal Treatment – The protester contended the agency conducted unequal evaluations by holding it to a higher standard than the awardee. The agency had identified a risk that the awardee may not be able to comply with the solicitation’s delivery schedule. Yet, the protester argued, the agency “blindly accepted” the awardee’s response that it resolved any weaknesses while assigning a weakness to the protester. COFC found this and other arguments of unequal treatment unavailing. The court laid out specifics on how the proposals materially differed. The disparate treatment was due to materially different proposals.
- Price Realism – The protester also claimed the agency conducted “no actual analysis” for its price realism findings. Based on the record, COFC found that the agency followed the evaluation criteria stated in the RFP and utilized an authorized method of determining price realism. Additionally, the RFP only required one method of analysis, but the agency utilized three. This suggested an abundance of reasoned analysis.
- Unequal Discussions – Finally, the protester averred the agency instructed it to increase its pricing in several areas. Only after the protester revised its prices did the agency request additional information. The awardee decided not to revise its prices. COFC concluded that different approaches by offerors in response to identical evaluation notices do not provide support for an argument of unequal discussions.
The protester was represented by Jessica C. Abrahams, Lora A. Brzezynski, Dana B. Pashkoff, Brianna L. Silverstein, and Michelle Y. Francois of Faegre Drinker Biddle & Reath LLP. The agency was represented by Alexander S. Brewer, Brian M. Boynton, Patricia M. McCarthy, and Albert S. Iarossi of DOJ; and Josephine R. Farinelli of the Air Force. The intervenor-defendant was represented by Sharon L. Larkin and James M. Larkin of the Larkin Law Group LLP.
— Case summary by Joshua Lim, Assistant Editor.
