Government Contracts Awardee Properly Credited with Affiliate’s Past Performance
Wednesday, July 31, 2019

Awardee Properly Credited with Affiliate’s Past Performance

By Government Contracts Editorial Staff

Crediting an awardee with the past performance of its corporate affiliate was appropriate because the awardee’s discussions responses showed the affiliate’s resources would be meaningfully involved in performing the contract for commercial protective security officer services. In the second round of discussions, the contracting officer told the awardee it was unclear whether it was proposing to use the same personnel as were performing the work for the incumbent contractor, which was a corporate affiliate of the awardee. After more email exchanges, the evaluators determined the awardee’s affiliate would have meaningful involvement in performance through personnel who were performing the incumbent contract, and they assigned both the protester and the awardee past performance ratings of “highly acceptable.” In the selection decision, the source selection authority judged both offerors’ past performance as providing very little performance risk, but the SSA ultimately concluded the awardee’s past performance had a “slight edge” through the incumbent’s more directly relevant performance. The SSA also found payment of a 0.63 percent price premium was appropriate due to the awardee’s advantages in past performance and management approach. According to the protester, the government should not have considered the incumbent’s contract, because the awardee did not include the contract in its past performance submission.

Reasonable Basis. The Comptroller General denied the protest, finding the record supported the government’s decision to consider the affiliate’s past performance and its conclusion that the awardee’s past performance provided a slight edge over the protester. The protester’s initial omission of the incumbent contract did not prevent the government from considering the contract, regardless of whether the performance record was positive or negative, so long as the government had a reasonable basis to attribute the incumbent’s performance to the awardee. Here, the awardee’s final proposal revision and discussions responses provided a reasonable basis for the government to conclude the affiliate’s resources—including incumbent personnel in significant roles—would be involved in the awardee’s performance, and therefore the affiliate’s incumbent past performance could be considered. The record provided no basis to question the evaluation of the awardee’s past performance as highly acceptable or the SSA’s judgment that the awardee’s past performance was superior to the protester’s as a result. The record also provided ample support for the reasonableness of the source selection rationale. (Universal Protection Service, LP, 34 CGEN ¶116,449)

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