The protester argued the decision to exclude its proposal amounted to a responsibility determination that should have been referred to the SBA. GAO found the exclusion was based on the protester’s failure to explain its approach, not its ability to perform. Referral to SBA wasn’t required.
Yang Enterprises, Inc., GAO B-421331.3, B-421331.4
- Exclusion from Competitive Range – The agency excluded the protester from the competitive range. The agency found the protester’s proposal was not among the highest rates due to technical deficiencies and a low past performance rating.
- Relevance of Past Contract – The protester objected to the past performance evaluation. The protester submitted four past performance references. But the agency also considered another contract the protester hadn’t submitted. The protester argued this other contract was not relevant because it only met one of the solicitation’s relevance criteria. GAO didn’t see a problem. The agency had discretion in assessing relevancy. Indeed, two of the protester’s submitted references only satisfied one of the relevancy criteria.
- Performance Improvement – The agency identified past performance problems on the contract the protester didn’t submit. The protester argued the agency hadn’t considered how its performance improved on that contract. GAO found the agency’s assessment reasonable. The past performance records didn’t suggest a linear progression of performance improvements.
- Unstated Criteria – The protester contended the agency placed undue weight on a past contract because it was the only contract on which the protester had performed as prime. The protester contended the solicitation had not stated extra weight would be given to projects performed as a prince. GAO rejected the argument. Even if a solicitation does not state a preference for past performance as a prime, an agency may reasonably take such information into account in a past performance evaluation.
- Technical Evaluation – The agency found the protester’s technical proposal unacceptable. The protester objected. But GAO found the protester hadn’t contested most of the deficiencies assessed to its technical proposal. As to the deficiencies the protester challenged, GAO found the agency’s conclusions reasonable.
- Responsibility Determination – The protester contended the rejection of its proposal amounted to a responsibility determination. The protester reasoned it was a small business, so the agency should’ve referred the matter to SBA for a certificate of competency determination. When an agency finds a small business unacceptable due to its ability to perform, that is a non-responsibility determination. It should be referred to SBA. But when any agency finds a proposal unacceptable due a failure to explain or demonstrate a technical approach, the agency has not made a responsibility determination. Here, the agency found the protester unacceptable due to a failure to explain. Referral to SBA was unnecessary.
The protester is represented by Aron C. Beezley, Lisa A. Markman, and Patrick R. Quigley of Bradley Arant Boult Cummings LLP. The agency is represented by Colonel Frank Yoon, Lawrence M. Anderson, and Jeffrey R. Clark of the Air Force. Nathaniel S. Canfield and Evan D. Wesser participated in the decision.
–Case summary by Craig LaChance, Senior Editor
