What Have You Done for Me Lately? Agency Reasonably Considered Protester’s Issues on Incumbent Contract in Assessing Past Performance; MAXIMUS Federal Services, Inc., GAO B-419487.2, B-419487.3

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Protest challenging the evaluation of proposals is denied. The protester claimed the agency improperly credited the awardee with corporate experience. Contrary to the protester’s contentions, however, GAO found that the agency properly considered experience references from the awardee’s subcontractors and that those references satisfied the solicitation’s definition of “recent.” The protester objected to the evaluation of its past performance, alleging the agency focused too much on issues the protester on the incumbent contract. GAO found the evaluation reasonable. Performance on the incumbent contract was a good indicator of performance on the current requirement. The protester complained about an upward adjustment in its costs, but GAO found the adjustment was proper because the protester had omitted costs for several CLINs.

The Social Security Administration SSA issued an RFP seeking program management support for the Ticket-to-Work program—a program that provides disability beneficiaries with options for employment services. The SSA received proposals from Maximus Federal Services and Cognosante, LLC. The agency awarded the contract to Cognosante, finding that its proposal superior to Maximus’ under the non-price factor, and that this superiority justified a price premium. Maximus protested.

Maximus contended the SSA misevaluated Cognosante under the RFP’s corporate experience factor. The RFP allowed offerors to submit experience references from subcontractors that would be performing “major aspects of the project.” Maximus argued that the SSA had accepted experience references from Cognosante’s subcontractors without considering whether those subcontractors would perform major aspects of the requirement.

But the record showed that the SSA had reasonably concluded that these subcontractors would be performing major requirements. The RFP required offerors to demonstrate experience in nine specific tasks. Two of Cognosante’s subcontractors demonstrated experience in several of the specified tasks. While one of the other subcontractors only had experience in one of the tasks, GAO found that the SSA had reasonably determined that the task was one of the major aspects of the requirement. The RFP did not define a “major aspect.” In the absence of a definition, Maximus had not demonstrated that the agency erred in finding the task a major requirement.

Maximus also alleged that the SSA erred in considering two of Cognosante’s experience references because they did not meet the solicitation’s requirements for recent performance. The RFP stated that if an offeror submitting an ongoing contract as an experience reference, that contract had to be ongoing for at least one year as of the closing date of the solicitation to be considered “recent.” Maximus contended that two of Cognosante’s references had not been ongoing for a year as of the RFP’s closing date.

GAO found the SSA’s consideration of Cognosante’s references unobjectionable. While one of the references had not been ongoing for a year when initially submitted, the SSA had reopened the solicitation via an amendment. This reopening date extended the closing date, which meant the submitted reference had been ongoing for a year prior to the solicitation closing. As to the other reference Maximus complained about, GAO determined that even if it was not “recent,” Maximus had not been prejudiced by the evaluation error.  If the two strengths Cognosante received for this reference had been removed, the company still had a technically superior proposal. The competitive standing of the offerors would not change.

Maximus objected to the evaluation of its own past performance. The company complained that the SSA failed to consider past performance information supplied during discussions to address adverse past performance issues. GAO found that the SSA had actually considered this information; it simply concluded that the information did not alleviate the agency’s concerns.

Maximus further alleged that the SSA was too focused on problems that the company had performing the incumbent contract. GAO noted the agency was entitled to rely on past performance information derived from the incumbent contract. Given the strong similarities between the prior performance and the current requirement, Maximus’ performance on the incumbent was a strong indicator of its performance in this effort. What’s more, the record showed that the SSA did not ignore the positive aspects of Maximus’ performance on the incumbent contract.

Maximus contended the SSA failed to engage in meaningful discussions concerning proposed personnel. The technical evaluation team had noted that some of Maximus’s key personnel were carried over from the incumbent contract, which, as noted, had performance issues. Maximus alleged that this concern with key personnel constituted adverse past performance information and thus should have been raised during discussions.

GAO rejected Maximus’s contentions. The concerns about the use of certain key personnel for an upcoming requirement did not equate to past performance information. Past performance information concerns a contractor’s historical performance, not future or intended performance. Thus, there was no need to raise these issues in discussions. What’s more, it was apparent for the record that the concerns played no role in the award decision. These concerns did not amount to a weakness of deficiency, and the contracting officer made no mention of these concerns in the trade-off analysis.

Lastly, Maximus objected to the cost realism analysis, arguing that the SSA had improperly adjusted Maximus’ costs upwards. GAO found this argument meritless. Maximus did not include costs for the for all the CLINs for one of the tasks. Maximus contended that under the incumbent contract, it had only incurred these costs sporadically. But GAO reasoned that this historical experience did not give Maximus a license to omit these costs. Maximus failed to provide required cost information; the agency reasonably added those costs.

Maximus is represented by Brian A. Darst of Odin Feldman Pittleman PC. The intervenor, Cognosante, is represented by Alexander B. Ginsberg and Meghan D. Doherty of Pillsbury Winthrop Shaw Pittman LLP. The agency is represented by Dorothy M. Guy, Brandon Dell’Aglio, and Jonathan Meyer of the Social Security Administration. GAO attorneys Michael P. Grogan, Evan D. Wesser, and Edward Goldstein participated in the preparation of the decision.

GAO - MAXIMUS Federal Services