Remembrance of Things Past: Evaluators Not Required to Consider Subcontractor’s Past Performance on a Contract Just Because Agency Had Staff that Remembered the Performance; Yulista Tactical Services LLC, GAO B-417317.3 et al.

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Protest challenging the agency’s technical, past performance, and experience evaluations is denied. The protester argued it should have received multiple strengths for its key personnel, but GAO found the one strength it received was reasonable. The protester also contended that the agency should have considered past performance of the awardee’s subcontractor on another contract because the information was close at hand,  and the agency had staff who likely remembered the performance. GAO found that the agency did not err in not considering that past contract. The contract had been with a different procuring activity, and the evaluators in this procurement were not aware of that other contract. Finally, although the protester argued that the agency’s evaluation of the awardee’s experience was flawed, GAO found that the argument was really a challenge to an ambiguous solicitation term. Because the challenge was raised after the proposal deadline, it was untimely.

The Army awarded a contract for aviation support services to Tyonek Global Services, LLC. An unsuccessful offeror, Yulista Tactical Services, protested, alleging that the Army muffed the evaluation under the solicitation’s technical, past performance, and experience factors.

Yulista contended the technical evaluation was flawed because its proposal should have received multiple strengths for each of its key personnel instead of a “single, generic” strength. Yulista also argued that its proposal should have received an adjectival rating of Good rather than Acceptable because it met the requirements for a Good rating.

GAO found that while Yulista disagreed with the number of strengths and adjectival ratings it received, it had not asserted that the Army overlooked any aspect of its approach or otherwise erred in evaluating its proposal. The record confirmed that the Army found that Yulista’s key personnel deserved a strength but not any additional strengths. As to the adjectival rating, GAO reasoned that there is no legal requirement that an agency must award the highest possible rating to a proposal simply because it contains strengths and no weaknesses.

Next, Yulista asserted that Tyonek’s past performance proposal improperly discussed prior contracts in addition to those it had submitted for evaluation. But GAO found that these contracts were only briefly referenced in Tyonek’s proposal. Moreover, the Army only evaluated past performance based the contract offered for evaluation and did not rely on other contracts referenced in the proposal.

Yulista further argued that the Army erred by failing to evaluate the past performance of one of Tyonek’s subcontractors on one of the submitted contracts. The agency had contacted the contracting officer for that contract to obtain information about the subcontractor’s performance. The CO never responded, so the Army did not consider that contract as part of the past performance evaluation .

GAO reasoned that there is no legal requirement that an agency review all the past performance references in a proposal. An agency is only required to make a reasonable effort to contract an offeror’s references. Where that effort is unsuccessful, the agency is permitted to evaluate past performance based on the other references it received.

Yulista contended that the Army should have still considered the contract because it was an Army contract for essentially the same services, and the Army had staff who would have remembered the performance. GAO, however, found that this contract was not “too close at hand” such that the Army had an obligation to consider it. The previous contract had been with a different procuring activity. None of the evaluators for this procurement were personally aware of the subcontractor’s performance on that other contract.

Finally, Yulista challenged the Army’s evaluation under the solicitation’s experience factor. The solicitation required offerors to demonstrate that they had experience in competency areas identified on an Experience Form. The Experience Form, however, identified four overarching competency areas as well as 32 competency areas associated with specific PWS tasks.

Yulista argued that the Army had improperly credited Tyonek with experience in a competency area. The Army argued that it had credited Tyonek based on a chart in the Tyonek’s proposal that identified the experience that Tyonek and its subcontractor had in the four competency areas identified in the solicitation. Yulista argued the Army’s reliance on the chart was flawed because the it only identified four competency areas instead of the 32 tasks set forth in the solicitation.

GAO found that the Army and Yulista were both right. Based on the language of the solicitation, the competency areas could either be the four overarching areas or the 32 tasks. Thus, the solicitation contained a patent ambiguity regarding the competency areas. Although Yulista characterized its protest as a challenge to the evaluation, it was in reality a challenge to the terms of the evaluation. Any challenge to the terms of a solicitation must be raised before the proposal deadline. Accordingly, Yulista’s arguments concerning the competency areas were untimely.

Yulista is represented by Amy L. O’Sullivan, Olivia L. Lynch, and Stephanie L. Crawford, of Crowell & Moring LLP. The intervenor, Tyonek, is represented by Jeffery M. Chiow, Lucas T. Hanback, Stephen L. Bacon, and Deborah N. Rodin of Rogers Joseph O’Donnell, PC. The agency is represented by Captain Jeremy D. Burkhart, Stephen Hernandez, and Scott N. Flesch of the Army. GAO attorneys Lois Hanshaw and Amy B. Pereira participated in the preparation of the decision.

GAO - Yulista Tactical Services