United States: A Lethal Combination For Bid Protests: Overall Past Performance Ratings Can Be Greater Than The Sum Of Its Individual Past Performance Ratings

On Oct. 28, 2021, the U.S. Government Accountability Office (GAO) released its decision in Jacobs Technology, Inc., B-420016, B-4210016.2 (Oct. 28, 2021). Jacobs Technology, Inc. (Jacobs) protested an agency's evaluation of the awardee's past performance because the agency's overall rating of the awardee's past performance was higher than the ratings given to the awardee's individual past performance references. The GAO denied the protest.

The Solicitation

The National Aeronautics and Space Administration (NASA) issued a FAR Part 15 Request for Proposal (RFP) for a single award, indefinite delivery/indefinite quantity contract for testing operations. Award was to be made on a best-value, tradeoff basis through an evaluation of technical proposals, past performance, and price. NASA established a competitive range of two, including Jacobs. Thereafter, NASA awarded the contract to the other offeror as it had a higher-rated and lower-priced proposal than Jacobs. Jacobs challenged the award on the basis of unreasonable past performance and technical evaluations.

With respect to past performance evaluations, the RFP stated that the past performance of offerors would be evaluated for recency, relevance, and performance. The adjectival rating scheme for the relevance of past performance included: very relevant, relevant, somewhat relevant, or not relevant. The agency planned to assign an overall past performance confidence rating of very high, high, moderate, low, or very low.

Notably, the RFP had two conflicting instructions with respect to past performance as part of a joint venture. One of the instructions stated that NASA would examine the extent to which each offeror or team member performed the underlying work of a reference. Another instruction specifically stated that past performance as part of a joint venture would be evaluated on the entirety of the work performed by the joint venture.

The Awardee's Past Performance Proposal and Ratings

The awardee submitted six total past performance references, two of which were performed as part of a joint venture. NASA gave a cumulative rating of "very relevant" for all of the awardee's past performance references. However, NASA evaluated each of the awardee's individual past performance references with a lower rating of "relevant." NASA gave the awardee a past performance confidence rating of "very high."

The Decision

Jacobs made a number of arguments; none of which persuaded the GAO to sustain its protest.

As to the awardee's joint venture past performance references, NASA found both joint venture contracts to be recent and relevant and gave both references excellent past performance ratings. Jacobs objected saying that NASA should have considered only the awardee's portion of the joint venture contracts. The agency, however, relied on that part of the instructions allowing it to evaluate the entirety of the joint venture contract, not just an offeror's potion. The GAO found Jacobs argument unpersuasive.

The GAO's most interesting response focused on NASA's evaluation of the awardee's past performance. Jacobs argued that the overall past performance rating given to the awardee — i.e., very relevant — could not be greater than its parts — i.e., each of the individual past performance references was only rated relevant. Jacobs argued that each reference was smaller in dollar value and not as relevant in terms of scope and complexity. NASA did assess each of the awardee's references individually, but then "concluded that the references, taken together, demonstrated effort of essentially the same content, complexity, and size as the procurement at issue" – and together were very relevant. GAO disagreed with Jacobs' argument and found that NASA's aggregating of the references to be unobjectionable.

Conclusion

In short, when faced with an awardee whose overall past performance relevancy exceeds those of its individual past performance ratings, the GAO has shown deference to the agency in making this determination. The sum can exceed the total of its parts in past performance evaluations.

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