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No Prejudice For Failure to Evaluate Incumbents' Performance

A protest of four contract awards for architect-engineer services was denied by the Court of Federal Claims because the protester did not show it was prejudiced by the government's failure to collect performance information from the incumbent contractors or the source selection authority's improper analysis. The solicitation for A-E services to support disaster relief contemplated the award of up to four indefinite-delivery/indefinite-quantity contracts. In administering the contracts awarded under the prior solicitation, the government did not prepare past performance evaluations of the contractors, as set forth in FAR 42.1502. FAR 42.1502 requires the government to prepare, "at the time the work under the contract or order is completed," past performance evaluations "for each [A-E] services contract of $30,000 or more." This failure, which "violated explicit law," adversely affected the government's evaluation under the part performance factor and the cost-estimating subfactor in the successor procurement.

Performance Not Defective

However, the protester did not show the incumbents would have fared poorly on the cost-estimating and past performance evaluations. Government Accountability Office and inspector general reports "set out trenchant criticisms" of the government's actions, but they did not point to defects in the past performance of any particular incumbent. As observed by GAO, "the reports simply do not provide any direct indication that the problems associated with [the government's] cost estimating issues were due to poor performance by the [incumbent] contractors." Further, although the government's weighting, evaluations, and rankings in the successor procurement seemed to be skewed to the protester's detriment, there was no basis for concluding the overall outcome was arbitrary. The SSA's irrational ranking of proposals, which did not rank the protester for the three most important factors and did not rank other offerors for at least one of those factors, did not adversely affect the procurement. A complete analysis would have ranked the protester fifth under the first and second most important factors and sixth or seventh under the third most important factor. Even if the SSA's rankings were complete, the four original awardees would still have received the awards. ( Vanguard Recovery Assistance, JV v. U.S., et al., FedCl, 56 CCF 79,695)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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