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Friday, January 3, 2014

Of performances past

Evaluating performance is a delicate task; so much nuance and shades of grey. The choices are not the easy ones: good, bad or ugly. More like superlatives: good, better, best.

The following GAO decision illustrates the care that must be undertaken to conduct past performance evaluation, and the limited scope a bidder has to complain.

It also illustrates how our federal government works right up to the New Year.

Matter of: IJC Corporation, B-408950, December 31, 2013
IJC Corporation (IJC), a service-disabled veteran-owned small business concern in Windham, New Hampshire, protests the Department of Agriculture’s award of a contract to Drainpipe Plumbing and Solar, of Pahoa, Hawaii, under request for proposals (RFP) No. AG-9AD6-S-13-0004, for plumbing work at Laupahoehoe Science and Education Center, Hilo, Hawaii. The protester asserts that the agency improperly evaluated IJC’s past performance.

The contract requirement includes the excavation and backfill of approximately 1,950 linear feet of trench; the supply and installation of various water lines, two water catchment tanks, and sewer lines; the preparation and coordination for various electrical conduits, as needed; and the complete pressure testing of all water lines prior to backfill. The RFP provided for the award of a fixed-price contract to the offeror whose proposal represents the best value to the government, considering price and past performance, with price being more important.

Past performance references were to be evaluated for recency, relevancy, and quality.

The possible relevancy ratings were relevant, somewhat relevant, and not relevant.

Possible quality ratings were exceptional, very good, satisfactory, marginal, unsatisfactory, and not applicable.

To determine the quality of contract performance, the RFP provided that the government would contact some of each offeror’s customers on past similar projects to ask whether: the offeror was capable, efficient, and effective; the offeror’s performance conformed to the terms and conditions of its contract; the offeror finished within the contract time; the offeror was reasonable and cooperative during performance; and the offeror was committed to customer satisfaction. Id. Based on these ratings, the agency would develop an overall confidence assessment--reflecting the agency’s determination of whether the offeror could perform as proposed and described in the statement of work (SOW)--of substantial, satisfactory, or marginal confidence.

The protestor's past performances references were indicated by this table:

In contrast, the agency evaluated two of Drainpipe’s cited past performance references for plumbing contracts as recent, relevant, and satisfactorily completed. Id. In addition, the contracting officer had “direct personal knowledge” of two prior Drainpipe contracts, at least one of which was for plumbing work, and both of which were “successfully completed on time.”

IJC was given an overall confidence assessment of marginal, while Drainpipe received an overall assessment of substantial.

IJC’s proposed price was $138,353, slightly lower than Drainpipe’s proposed price of $147,937. The contracting officer determined that Drainpipe’s higher past performance confidence assessment warranted that firm’s price premium, and award was made to Drainpipe. The protester asserts that the agency should have permitted IJC the opportunity to respond to this negative past performance information, and claims that had it known the kind of reference this customer would supply, IJC would not have used this contract as a past performance reference.

Our Office will examine an agency’s evaluation of an offeror’s past performance only to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations, because determining the relative merit or relative relevance of an offeror’s past performance is primarily a matter within the agency’s discretion. A protester’s disagreement with the agency’s judgment is insufficient to establish that an evaluation was improper.

Where award is made without discussions, offerors may be given the opportunity to clarify certain aspects of proposals, such as the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond. As we have previously recognized, however, agencies are not required to request clarifications in the context of an award, such as the one here, made without discussions.

IJC also asserts that the work performed under contract -0036 should have been evaluated as relevant, rather than somewhat relevant, because both contract -0036 and the current requirement included the installation of a catchment tank. As noted above, the statement of work for the current requirement contained more than just the installation of a catchment tank; it also included the excavation and backfill of approximately 1,950 linear feet of trench, the supply and installation of various water lines and sewer lines, the preparation and coordination for various electrical conduits, and the complete pressure testing of all water lines prior to backfill. We see no basis in this record to question the agency’s conclusion that contract -0036 was only “somewhat relevant” to the work at issue here.

The protester asserts that, because contract -0388 included “trenching, soil erosion controls, the installation of piping in the trench, [and] backfilling the trench,” the agency unreasonably evaluated it as “not relevant.” The contracting officer, however, explains that, while the current requirement includes some trenching and backfill work, it is estimated to be 20 percent or less of the contract effort. In answering the agency, the protester concedes that the current requirement is only 21 percent trenching, but disagrees with the agency’s claims about the extent of the plumbing involved in the current work.

Even if we agreed with the protester that contract -0388 should be viewed as somewhat relevant, the fact remains that on its other somewhat relevant contract (-0036), performed in Hilo, its performance was reasonably rated as marginal. In addition, the reference advised the agency that it would not use IJC for future projects. Under these circumstances, we see no prejudice to the protester from any such possible error in the relevancy rating assigned for contract -0388. See ITT Corp.-Electronic Sys., B-402808, Aug. 6, 2010, 2010 CPD ¶ 178 at 7 (prejudice is an essential element of every viable protest, and where none is shown or otherwise evident we will not sustain a protest, even where a protester may have shown that an agency's actions arguably were improper.)

Finally, the protester challenges the agency’s best value determination, asserting that it “seems unwarranted” for the agency to expend “more of the taxpayers’ [funds] than is necessary.”

A protester’s assertion that it should have received the award solely because of its low price, however, fails to state a valid basis for protest where, as here, the RFP provided that award would be based on technical factors as well as on cost. In any case, we find the agency’s best value determination here to be reasonable. As indicated above, Drainpipe cited in its proposal two past performance references for plumbing contracts that were found to be relevant with a satisfactory quality rating, and the contracting officer was aware of a third Drainpipe contract for plumbing that was “successfully completed on time” and a fourth contract not primarily for plumbing work that was also “successfully completed on time.” Drainpipe accordingly received a confidence assessment of “substantial.” In contrast, IJC had no contracts that were deemed relevant, one past performance reference that was deemed “somewhat relevant” but for which IJC’s performance was reasonably rated as marginal, and a fourth contract with satisfactory performance but that was but no better than “somewhat relevant.”
In these circumstances there is no basis for us to question the contracting officer’s determination that it was worth a price premium of approximately 7 percent to obtain the superiority of Drainpipe’s performance record.

The protest is denied.

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