Given how much emphasis federal procurement law properly places on fairness, it can be easy to assume that government buyers must do everything necessary to ensure a fair procurement. But that’s not always the case. For example, as the recent Government Accountability Office (GAO) decision in Yulista Tactical Services LLC, B-417317.3; B-417317.5; B-417317.6 (January 15, 2020) reminds us, purchasing agencies need only take reasonable steps to obtain complete past performance information about an offeror. If its reasonable efforts are not successful, the agency can still proceed with the procurement and make a valid award decision based on the information it has.
In Yulista, the U.S. Army awarded a contract to Tyonek Global Services, LLC (Tyonek) for aviation support services at the Redstone Test Center. The request for proposals (RFP) contemplated the award of a cost-plus fixed-fee level-of-effort contract on a best-value tradeoff basis considering five evaluation factors: technical; past performance; experience; transition plan; and cost/price. Only proposals rated acceptable or higher in every non-cost/price factor were eligible for award.
The agency received multiple timely proposals, including those from Tyonek and Yulista. After initial proposal evaluations, discussions with offerors, and evaluations of final proposal revisions, the contracting officer (CO), acting as the source selection authority, concluded that Tyonek’s proposal offered the best value to the government based on its evaluation of submissions under the RFP’s stated evaluation factors and found that the advantages in Tyonek’s proposal identified under the agency’s technical subfactors evaluation warranted the price premium, as compared to lower-priced offerors like Yulista.
After being informed of the award to Tyonek and receiving a debriefing, Yulista protested, arguing, among other things, that the agency’s past performance evaluation improperly failed to consider poor performance by Tyonek’s major subcontractor on an identified prior contract.
With respect to the past performance factor, the RFP required offerors to provide information regarding recent and relevant contracts. Tyonek’s proposal disclosed shortcomings in performance of a prior contract by a company it was proposing to use as its major subcontractor, but Yulista argued that the Army did not consider any information about the subcontractor’s problematic performance as part of its past performance evaluation. The agency explained, however, that its attempts to obtain a past performance questionnaire (PPQ) for the subject contract from the CO were not successful. Thus, the Army argued, it did not have the information from the government customer necessary to determine whether Tyonek’s subcontractor would successfully perform the requirement and for that reason did not consider the contract in its past performance evaluation.
The GAO sided with the agency, finding no basis to question the agency’s conclusion not to evaluate the contract in question. It also reiterated that “[t]here is no legal requirement that all past performance, or even all past performance references listed in an offeror’s proposal, be included in a valid review of past performance.” Instead, according to the GAO, what matters is “whether the evaluation is conducted fairly, reasonably, and in accordance with the stated evaluation criteria, and whether it is based upon relevant information sufficient to reach a reasonable conclusion.” Furthermore, “[a]n agency is only required to make a reasonable effort to contact an offeror’s references, and, where that effort proves unsuccessful, it is unobjectionable for the agency to evaluate an offeror’s past performance based on fewer than the maximum possible number of references the agency could have received.”
Here, the record showed that Tyonek sent a PPQ to the CO for the problematic contract, but the CO did not return the PPQ. The agency also reviewed Contractor Performance Assessment Reporting System (CPARS) reports and did not find any CPARS rating for this contract. Nor did it find any CPARS reports for Tyonek or any negative CPARS reports for Tyonek’s major subcontractor. Given all this, the GAO held that “it was not unreasonable for the agency to conclude that it could not determine whether the major subcontractor would successfully perform the requirement without qualitative performance information.”
Furthermore, the Army rated Tyonek’s past performance “acceptable” based on past performance information provided about Tyonek under another contract—and Yulista did not challenge the agency’s evaluation of that contract. Thus, the GAO held the protester did not demonstrate that the agency’s past performance evaluation was unreasonable.
The primary takeaway here is simple: don’t make your protest dependent on past performance information that may not have been obtained by the agency despite its reasonable efforts. This decision provides another important reminder for offerors: if you want to ensure that the evaluating agency learns about your positive past performance, you need to take affirmative steps to help make that happen (e.g., give the CO a heads-up that the PPQ is coming and follow-up to confirm it is submitted).