Government Contracts Government Waived Material Solicitation Requirement
Wednesday, April 10, 2019

Government Waived Material Solicitation Requirement

By Government Contracts Editorial Staff

The Comptroller General sustained a protest of a task order award for network sustainment and deployment support because the past experience evaluation was unreasonable. The past experience factor considered the vendor’s experience in carrying out work that was relevant in scope, size, and duration to the requirements in the task order request. The TOR defined similar in duration “as a requirement that has at least been ongoing for more than one year, has had at least one (1) option exercised, and at least one (1) [contractor performance assessment reporting system (CPARS)] evaluation has been completed for the first year.” After a vendor commented in Q&A that the requirement “seem[ed] unduly restrictive,” the government responded that it would “accept a past performance questionnaire on experience where an offeror performed over one (1) year on a project and had one (1) option exercised, if an annual [CPARS] evaluation was not completed for that base year and the end of the base year was not more than [120 days] prior to the … [TOR] response due date.” The protester argued the government should not have considered one of the awardee’s past experience examples because the contract did not meet the solicitation’s duration requirements. The example, a contract performed by the awardee’s proposed subcontractor, was in the third option year, but it did not have a completed CPARS evaluation.

Error Not De Minimis. The government maintained the example met the duration requirement because the contract had several exercised option years, and any error was de minimis because it would “not affect [the awardee’s] ability to meet the [TOR] requirements.” However, the record showed the government improperly relaxed the past experience requirement. The TOR clearly advised vendors that a contract would be considered similar in duration only if it had at least one CPARS evaluation completed for the first year. The government later advised vendors that it would accept a PPQ, rather than a CPARS evaluation, if the contract was still within 120 days of the end of the base year, but the government never advised vendors that it would waive this 120-day period if it felt that the example otherwise met the TOR’s duration requirements. Further, the error was not simply de minimis because it had a substantial impact on what examples could be submitted to demonstrate past experience. Finally, but for the error, the government might have rated the protester’s past experience more favorably than the awardee’s. Such a change would have required the government to perform a best-value tradeoff, which could have resulted in a different source selection decision. The Comptroller General recommended the government consider its needs and, if appropriate, amend the solicitation, or conduct a new evaluation. (AlliantCorps, LLC, 34 CGEN ¶116,320)

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