Government Contract Attorney Lawyers Bid Protest Claims Disputes Changes REA Terminations Delays: Government Contract Attorneys Lawyers Protests Claims Protests Disputes

GAO Sustains Protest Under a Reverse Auction Using

Posted on December 3rd, 2014 by

In the bid protest of FitNet Purchasing Alliance, B-410263, the GAO held that the Government improperly rejected a proposal based on past performance under a solicitation using’s reverse auction procedures.  Although the protestor submitted the lowest priced, technically acceptable proposal, the Government rejected it because of alleged poor past performance. The protestor argued this was wrong because, as a small business, the Government should have asked the SBA for a Certificate of Competency first.

The GAO agreed and noted that, when the Government rejects a proposal solely based on a pass/fail basis for past performance, it must obtain a Certificate of Competency from the SBA. In reaching this decision, the GAO noted that a rating of “unacceptable” for past performance under a pass/fail evaluation criteria is tantamount to a small business responsibility determination, which is reserved for the SBA under Certificate of Competency procedures.

The GAO also noted that the Contracting Officer’s past performance evaluation was fatally flawed and not contemporaneously documented.  The Contracting Officer said she relied on an “Alert” flag in the protestor’s FedBid Activity Card as one sign of poor past performance.  The Contracting Officer admitted she did not investigate what this alert meant or why it was put there.  The GAO therefore held that “the agency’s reliance on the Activity Card was unreasonable.”

The GAO also held that the evaluation criteria was unclear.  While this issues was untimely, the GAO felt compelled to address it.  The Government argued that the procurement was a best value type based on’s boilerplate provision that states:

Award will be made to the responsible Seller whose offer conforming to the solicitation will be most advantageous to the Buyer on the basis of price, technical capability, delivery and past performance.

The GAO ruled that the above language did not mean the procurement was a best value type.   Especially since the factors of price, technical capability, delivery and past performance can all be considered in  a lowest priced, technically acceptable, procurement as well.

This decision should stand as a wake up call to the Government.  While use of may be appropriate in certain circumstances, the Government must tailor the solicitation evaluation terms to its specific requirements rather than rely on boilerplate terms and conditions posted on  Indeed, I believe it is the Government’s inherent duty to do so in order to protect the integrity of the procurement system.

FitNet Purchasing Alliance, B-410263 (November 26, 2014)


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