Government Contracts RFQ Effectively Penalized Subcontractor Experience
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Thursday, January 14, 2021

RFQ Effectively Penalized Subcontractor Experience

By Government Contracts Editorial Staff

The Comptroller General sustained a protest of the terms of a request for quotations for unexploded ordnance clearance services because the RFQs’ relevant experience and past performance evaluation criteria did not accurately capture the government’s intent. The RFQ, issued as a service-disabled veteran-owned small-business set-aside, provided for an evaluation under price, technical, and past performance factors, with relevant experience to be considered as a technical subfactor. During Q&A, the government clarified that it would limit the evaluation of relevant experience and past performance to instances where the offeror had performed as a prime contractor or as a member of a joint venture. The protester argued these requirements were unduly restrictive of competition, and experience gained as a subcontractor should have been adequate to satisfy the requirements. The government responded that it was seeking to ensure that only the offeror’s relevant experience and past performance would be evaluated and it did not want to consider subcontractor experience or past performance because there was no way to ensure an offeror would use any particular subcontractor.

Unintended Result. However, the government misunderstand the protester’s position and the meaning of the challenged provisions. As written, the RFQ precluded an evaluation of relevant experience and past performance gained as a subcontractor. Thus, even if an offeror had previously performed the same services at the same location of performance, its relevant experience and past performance would not be considered if the offeror performed those services as a subcontractor. This “[wa]s an irrational result, and one apparently not intended by the [government].” The RFQ “both disadvantage[d] the protester—because it [could not] demonstrate its experience and past performance gained as a subcontractor—and fail[ed] to fulfill the [government’s] objective—to evaluate only the relevant experience and past performance of the firm that will actually perform the requirement.” The Comptroller General recommended the government revise the RFQ and allow the submission of revised quotations. (AES UXO, LLC, 35 CGEN ¶117,031)

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