Monday, June 5, 2017

The Government is Not Going to Make Your Proposal Adequate For You

In March 2016, the Defense Threat Reduction Agency (DTRA) published an RFP to provide support for its mission of threat reduction. There were a number of evaluation factors to be evaluated including one related to past performance. The solicitation directed offerors to identify past performance references for the prime offeror and for each of its critical subcontractors including the submission of a present and past performance questionnaire (PPPQ) for each reference.

DTRA established a competitive range of four offerors, including Battelle and Leidos and thereafter opened discussions by sending evaluation notices (ENs) to each competitive range offeror. Among the ENs provided to Battelle was one that notified Battelle that two PPPQs were not received. During oral discussions that followed, DTRA once again mentioned the two missing PPPQs.

In October 2016, the four bidders submitted final proposal revisions (FPRs) however Battelle's FPR did not include any additional past performance references and the missing PPPQs were never submitted to DTRA. When assigning past performance ratings, DTRA gave Leidos a "substantial confidence" rating for past performance but gave Battelle only a "satisfactory confidence" rating.

When the contract was ultimately awarded to Leidos, Battelle protested the award based on a number of factors including its contention that DTRA's evaluation of past performance was improper because DTRA did not fully consider certain of Battelle's subcontractor's' most recent/relevant past performance. Specifically, Battelle asserted that DTRA's only needed to "Google" the contract's name or other project information in order to have obtained the required PPPQ or DTRA could have gone to the subcontractor's website and reviewed publicly-available information regarding the subcontractor's past performance as a proxy for the required PPPQ.

That kind of rationale never flies in a bid protest situation. The Government is not about to go out and independently generate data that was required to have been submitted as part of a prospective contractor's proposal submission. In this case, the solicitation specifically provided that each offeror ensure that each of the offeror's past performance references complete a PPPQ and further elaborated that the responsibility to send out and track the completion of the PPPQs rests solely with the offeror. Further, DTRA brought the omission to Battelle's attention not once, but twice prior to the date that FPRs were due.

You can read the entire decision by clicking here.

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