A recent bid protest at the Government Accountability Office (“GAO”) reinforces the idea that there is a big difference between evaluation criteria in a solicitation, and instructions in the solicitation on how to prepare an offer. Tech Systems, Inc., B-421838.3, & .4, June 4, 2024.
The Army issued a solicitation for logistics support services at Schofield Barracks, HI. Evaluation was to be made on a lowest priced, technically acceptable basis, with technical, past performance and price as the evaluation factors. Tech Systems challenged both past performance and cost evaluations, but this blog only deals with the past performance issue. The issue related primarily to past performance of a joint venture where the solicitation required “a justification as to why the contractor can claim the past performance by explaining how the contractor will draw upon the past performance from the joint venture or predecessor company [and explain how the joint venture or predecessor company will have meaningful involvement in contract performance].” Tech Systems protested that this required offerors to include information that was not provided in the awardee’s proposal. The Agency, however, argued that there were specific criteria for evaluators to consider, and evaluators needed to make reasonable determinations about performance history. The Army reasonably determined that the awardee had done so, and the awardee’s proposal merited a rating of “substantial confidence.”
In denying Tech System’s protest, the GAO noted that the evaluation criteria on how the agency was required to evaluate a joint venture's contract performance submitted on behalf of one member of the joint venture. GAO therefore gave due deference to the agency’s broad discretion to determine whether a particular contract was relevant to the past performance evaluation-and the Army did so.
In the decision denying this protest, GAO noted that “information requirements provided in the instructions portion of a solicitation are not the same as evaluation criteria; rather than establishing minimum evaluation standards, solicitation instructions generally provide guidance to assist offerors or vendors in preparing and organizing proposals. The information required by Section L of a solicitation does not have to correspond to the evaluation criteria in Section M.” The GAO concluded that without clear direction in the solicitation, GAO could not conclude that the agency’s evaluation of past performance was unreasonable or inconsistent with the solicitation.
Takeaway: While agencies must adhere to Section M (evaluation criteria), there is not a similar requirement that every specific instruction be read as literally. In fact, it is probably best to adhere as closely as possible to both Section M and Section L (Instructions to Offerors)
For other helpful suggestions on government contracting, visit:
Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.
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