1. All Points International Distributors, Inc., B-405954, December 16, 2011

Link: GAO Opinion

Agency: General Services Administration

Disposition: Protest denied.

Keywords: Past Performance; Past Performance Information Retrieval System (PPIRS)

General Counsel P.C. Highlight: The existence of positive past performance is irrelevant if it is not available to the Contracting Officer pursuant to the solicitation which in this case was the Past Performance Information Retrieval System (PPIRS).

GAO denies the protest of All Points International Distributors, Inc. (API), regarding the issuance of a delivery order to another offeror, under a request for quotations (RFQ), issued by the General Services Administration(GSA), for soft shelters and related equipment for the United States Sustainment Command, 580^th Signal Company in Bagram, Afghanistan.

API protests the agency's evaluation of its past performance as unacceptable contending that its performance on previously completed projects has been exceptional. The protester contends that GSA's best value determination was flawed because the agency improperly reviewed only a single example of API's past performance despite the fact that GSA knew API had performed many similar contracts in the past. GAO states that the evaluation of past performance is a matter of agency discretion, and GAO will review the evaluation only to ensure that it was reasonable and consistent with the solicitation's stated evaluation criteria and applicable statutes and regulations. The evaluation by its very nature is subjective; an offeror's disagreement with the agency's evaluation judgments does not demonstrate that those judgments are unreasonable.

The contracting officer, consistent with the terms of the RFQ, considered available Past Performance Information Retrieval System (PPIRS) data for both vendors. The information in PPIRS for API indicated that API's past performance had been poor. That report also indicated that API was given the opportunity to respond to this assessment but did not do so. Moreover, the protester does not argue that the information in the PPIRS is inaccurate nor does the protester attempt to explain its prior performance. Although API generally suggests that it has other examples of positive past performance that were ignored by the agency, it has not identified those examples nor asserted that this information was included in the PPIRS. In short, the protester has provided no basis to question the reasonableness of the agency's findings that its unfavorable recent performance of similar work suggests that similar incidences of delinquent delivery could be anticipated under this contract, which may increase the ultimate cost of performance for the agency. The protest is denied.

2. Commandeer Construction Company LLC, B-405771, December 29, 2011

Link: GAO Opinion

Agency: Department of Veterans Affairs

Disposition: Protest sustained.

Keywords: SDVOSB; CVE; VIP Database; Set-aside

General Counsel P.C. Highlight: Just as an offeror is bound by the terms of the RFP, the government is also bound. When the VA said it would fast-track verification for a SDVOSB if awarded it is not relevant if the intent was only for those already listed in the VIP Database.

GAO sustains the protest of Commandeer Construction Company LLC (CCC), where its bid was rejected under a Department of Veterans Affairs (VA) invitation for bids (IFB), issued as a set-aside for service-disabled veteran-owned small businesses (SDVOSB), for renovation of an existing medical facility in Chillicothe, Ohio.

CCC asserts that the agency improperly rejected its bid without reviewing its SDVOSB status under the fast track verification process set forth in the deviation clause included in the solicitation. In addition, CCC contends that it was misled into participating in this procurement by the solicitation clause, which indicates, in CCC's view, that any apparent successful offeror--even those not currently listed in the VIP database--would be eligible for fast track verification of its status. GAO states that although procuring agencies have broad discretion regarding selection of the evaluation criteria to be applied, they are required to disclose all evaluation factors and significant subfactors in order for offerors to meaningfully compete on an equal basis. An agency may not induce offerors to prepare and submit proposals based on one premise, then make source selection decisions based on another.

Here, the solicitation's deviation clause provided an opportunity for "the apparent successful offeror, unless currently listed as verified in the [VIP]," to have its SDVOSB status reviewed under the fast track process. While the agency asserts that this language was only intended to apply to firms already listed in the VIP, but not yet verified, the solicitation clause does not, on its face, indicate that qualification. Indeed, as discussed above, based on the language of the clause, even the contract specialist was prepared to include CCC in the fast track process. GAO agrees with CCC's contention that the language "unless currently listed as verified" could mean either: (1) firms that are listed, but not verified; or (2) firms that are not listed at all. Thus, under the solicitation clause, either of these types of firms is entitled to a fast track verification review. Since CCC is not yet listed as verified, and since CCC is the low bidder here, CCC is entitled to the expedited verification review. Accordingly, GAO finds the agency's refusal to consider CCC's bid under the fast track process to be inconsistent with the IFB's evaluation criteria, and GAO sustains the protest on this basis.

GAO recommends that the agency review CCC's SDVOSB status to determine whether the company can be verified. If the protester is properly verified at the end of this review, and if the protester is otherwise found to be responsible, the agency, consistent with the terms of the solicitation clause, should award it the contract. GAO also recommends that the protester be reimbursed its costs of filing and pursuing the protest, including reasonable attorneys' fees. The protest is sustained.

3. Pacific Lock Company, B-405800, December 27, 2011

Link: GAO Opinion

Agency: Defense Logistics Agency

Disposition: Protest denied.

Keywords: Prejudice; Domestic Production Requirement; Reliance on the Proposal

General Counsel P.C. Highlight: An agency is required to rely on the proposal. The government is only required to verify compliance with a solicitation requirement when it has reason to believe that offeror will not provide compliant products.

GAO denies the protest of Pacific Lock Company, regarding the issuance of a delivery order under a request for quotations (RFQ), issued by the Defense Logistics Agency (DLA), for 6,000 padlock sets.

Pacific Lock protests that the awardee will not provide a domestic end item. In this regard, the Pacific Lock contends that, based on its industry knowledge, the awardee does not manufacture locks in the United States. GAO states that when a vendor responds to a solicitation by representing that it will furnish products that comply with a solicitation's domestic production requirements, the vendor is contractually obligated to comply with such representation. Absent a basis to question a vendor's representation in this regard, the agency may properly rely on the representation in making its source selection decision. However, where an agency has reason to believe that the firm will not provide compliant products, the agency should go beyond the firm's representations to verify compliance, and GAO will review a procuring agency's actions to ensure that the agency's assessments and conclusions were reasonable.

Pacific Lock has not shown that the agency had any reason to question the awardee's representation, given that nothing on the face of its quotation indicated that the firm would not provide a domestic part.

The protester also complains that agency extended from 90days to 180 days the time for delivery in the order issued to the awardee. The agency responds that it extended the delivery schedule to accommodate product verification testing. GAO states that it need not resolve this dispute because Pacific Lock does not show that it was prejudiced by the agency's actions. Competitive prejudice is an essential element of a viable protest, and where the protester fails to demonstrate prejudice, GAO will not sustain a protest. Here, Pacific Lock does not state what it would have done differently had it been aware that the agency would accept a longer delivery schedule for the locks. The protest is denied.