Two Recent GAO Decisions Demonstrate the Importance of Knowing How an Agency Plans to Evaluate the Past Performance and Experience of the Contracting Team

GAO recently published two bid protest decisions that address the issue of when contractors may rely on the past performance or experience of a contractor’s teaming partners, and how agencies can restrict that reliance. These two decisions demonstrate the importance of thoroughly reviewing solicitations to see how an agency plans to evaluate past performance and the experience of partners, teammates, and subcontractors.

The first decision, Ekagra Partners, LLC, discussed the limits an agency can place on the experience projects submitted by mentor-protégé joint ventures (JVs). The Ekagra protest challenged GSA’s solicitation terms for the One Acquisition Solution for Integrated Services (OASIS) IDIQ contract. Only small businesses (or mentor-protégé JVs) could compete for the contract.

The RFP had two limitations regarding the submission of relevant experience projects. First, the solicitation provided that where a small business mentor-protégé JV submitted a proposal, the JV could rely on the experience of the large business mentor firm for only a portion of the required experience. Second, the solicitation restricted JV offerors from forming a contractor teaming arrangement in which the offeror relied on the experience of subcontractors that were not one of the JV members. As for the first restriction, GAO found no basis to sustain the protest, but sustained the protest for the second on the grounds that the restriction was unreasonable.

Ekagra argued that the first restriction was inconsistent with statutory and regulatory provisions regarding mentor-protégé small business joint ventures, and that the agency did not provide a reasonable explanation for the restriction. GAO agreed with GSA and SBA’s argument that nothing in statute or regulation prohibits an agency from limiting the experience that may be submitted by one of the members of a mentor-protégé JV. GAO further concluded that GSA offered a reasonable justification for the restriction: allowing a mentor-protégé joint venture to “rely primarily upon the qualifications of their Other Than Small team members’ experience, without any limitation or restriction,” would give the JV a “fundamentally unfair competitive advantage” over small businesses that are not part of such joint ventures.

GAO sustained the protestor’s argument as to the second restriction. The restriction stated that individual prime contractors could rely on the experience of their subcontractors but that JVs could not rely on the experience of their subcontractors. GSA’s justification for the limitation was that inclusion of the challenged term was reasonable because it avoided “significant administrative burdens” in assessing the offerors documentation. GAO found this justification insufficient and the restriction unreasonable.

The second GAO decision, Apogee Engineering, LLC, considered a protest in which an agency highly evaluated a company that had relied on its subcontractor for experience with one important element of the solicited work. GAO rejected the protestor’s argument that it was improper for the agency to consider the subcontractor’s past performance, stating that the RFP failed to address or prohibit the evaluation of subcontractor past performance. The FAR states that past performance evaluations should take into account the past performance of subcontractors that will perform major or critical aspects of a requirement. As such, GAO found that the agency reasonably considered the subcontractor’s experience by assigning an “exceptional” rating to the offeror’s experience/past performance.