The solicitation said vendors could submit one past performance reference from “a Teaming Partner (subcontractor).” The protester said the awardee violated this limitation by submitting a reference from a Contractor Teaming Arrangement (CTA) partner and a subcontractor. But GAO denied the protest, finding the limitation only applied to subcontractors, and a CTA member is not a subcontractor.
MindPoint Group, LLC, GAO B-421869.2, B-421869.3
- CTA Member v. Subcontractor – The solicitation stated vendors could submit three past performance references. One of the references could be from “a named Teaming Partner (subcontractor).” The protester said the awardee has not complied with this limitation. The protester reasoned this limitation meant an offeror could only submit one reference from an entity other than the one submitting the offer. But the awardee had submitted a reference from a CTA member and a subcontractor.
- CTA Members and Subcontractors Are Different – GAO rejected the protester’s argument. GAO reasoned that because the word “subcontractor” appeared in a parenthetical, it was reasonably understood to clarify the preceding phrase, “Teaming Partner.” Thus, by including the parenthetical, the agency had effectively defined Teaming Partner to mean subcontractor. GAO invoked the legal canon noscitur a sociis—a word is given more precise meaning by its neighboring words. Moreover, GAO noted, the solicitation was released under FAR subpart 8.4 to contractors holding an FSS contract. In FSS procurements, a CTA member is considered a co-prime contractor, not a sub.
- Teaming Structure – The protester argued it should have received an additional strength for its teaming structure. GAO didn’t see it. The protester argued its teaming structure exceeded solicitation requirements, but it had not explained which requirement it exceeded.
- Disparate Treatment – The protester contended the agency disparately evaluated proposals when it gave both the awardee and the protester a strength for their management programs. But the protester argued the agency had unfairly downgraded the protester’s strength to a minor strength. GAO, however, found this argument was factually incorrect. The agency had assigned minor strengths to both the protester and the awardee.
The protester is represented by Tracye Winfrey Howard and Jennifer Eve Retener of Wiley Rein LLP. The awardee is represented by James C. Fontana of the Fontana Law Group, PLLC and David R. Warner and Heather Mims of Warner, PLLC. The agency is represented by Alex Con of the Federal Retirement Thrift Investment Board. GAO attorneys Raymond Richards and John Sorrenti participated in the decision.
–Case summary by Craig LaChance, Editor in Chief
