If You Argue a Competitor’s Past Performance Reference Differs from the Solicitation, Be Sure to Provide Some Examples of the Differences

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The protester alleged the agency erred in finding one of the awardee’s past performance references similar to the solicitation’s SOW. The protester argued that the two contracts were materially different. But the court noted that the protester had not provided any examples of differences between the contracts. In fact, after comparing the contracts itself, the court opined that the contracts were not that different. The agency had not erred in finding them similar.

ACI Technologies, Inc. v. United States, COFC 21-2340C


The Navy posted an RFP seeking a contractor to operate and manage the agency’s Electronics Manufacturing Center. Only two offerors, ACI Technologies and Pennsylvania State University (PSU) responded to the RFP. After evaluating proposals, the Navy determined the PSU’s proposal represented the best value. ACI filed a protest with the Court of Federal Claims

Court’s Analysis

Past Performance

ACI contended that the Navy unreasonably concluded that PSU’s work on another contract was identical to the RFP’s SOW. ACI contended that the reference was materially different because it involved electro-optics work while the SOW for the RFO involved electronics manufacturing.

But the court found that ACI had failed to cite any specific differences between the past PSU contract and the RFP’s SOW. Rather, it seemed to the court, ACI wanted the court to do its job for it. The court opined that if the two contracts were really different, then ACI would have been quick to demonstrate it. The court ultimately compared the two contracts and found them strikingly similar; they required the same management, operation, and activities. The Navy did not err in finding the contract relevant.

Cost Realism

The Navy adjusted ACIs’ overhead rates so that they confirmed to rates on file with the DCAA. ACI complained that the Navy should not have made this adjustment without first giving ACI notice and an opportunity to respond.

The court, however, found that the Navy did not need to provide notice of the adjustment. The differing rates did not amount to a deficiency or significant weakness, so the Navy was not required to conduct discussions. What’s more, ACI had not shown that it was improper for the Navy to rely on the most recent rates. Most fatal to ACI, however, was the fact that even if the Navy had used ACI’s old rates, it still would have had a higher price than PSU and would not have received the contract.

Technical Evaluation

ACI also objected to the technical evaluation, challenging weaknesses assessed to its proposal and strengths assessed to PSU. The court found that ACI’s objections amounted to disagreement with the Navy’s evaluation conclusions. The court declined to second guess the Navy on the “minutiae of the procurement process.”

ACI is represented by Todd M. Garland and Jonathan D. Shaffer of Smith Pachter McWhorter PLC. The intervenor, PSU, is represented by Robert Charles Rutherford Jr of Pennsylvania State University. The government is represented by Jimmy S. McBirney, Eric P. Bruskin, Patricia M. McCarthy, and Brian Boynton of the Department of Justice as well as Stephanie J. Quade of the Navy.

COFC - ACI Technologies