Blogs

Posted on Monday, April 22, 2019

Incumbents Competing for Follow-on Contract Should Assume Nothing

A recent decision of the Government Accountability Office (GAO) shows that incumbent contractors bidding on a follow-on contract cannot assume that the government’s evaluators will use their personal knowledge of an incumbent’s previous performance and automatically fill in informational blanks an incumbent might leave in its follow-on proposal. Although evaluators can properly use their personal knowledge of an offeror in limited areas like past performance, they cannot assume the incumbent would use a technical approach that is not described in its proposal.   

After the United States Customs and Border Protection (CBP) issued a solicitation for maintenance and repair services, the incumbent, EMCOR Government Services, submitted a proposal that the agency determined to be the best value. Native Energy & Technology, Inc. (NET) protested to GAO arguing that CBP unreasonably credited EMCOR’s higher-priced proposal with strengths that were nowhere to be found in its proposal. One of CBP’s counter-arguments was that its evaluators could rely on their own knowledge of the awardee’s performance of the incumbent contract to assume or infer that the awardee would perform the new contract in the same manner and thereby provide features that CBP evaluated as strengths. 

GAO disagreed. Agencies must generally evaluate proposals based on material in the proposal. There are a few exceptions. “For example, agency evaluators may reasonably rely on their personal knowledge of an offeror’s past performance in the evaluation of certain matters, such as past performance, experience, or technical acceptability.” But there are limits. Agencies cannot “assume or infer that an offeror will perform a contract using a specific technical approach that is not included in the offeror’s proposal and cite that approach or benefit as a discriminator in favor of award.” Nor can an agency “give incumbent contractors favorable evaluations due solely to their incumbency or the agency’s assumption that an incumbent contractor will inherently perform the contract in a superior manner to a non-incumbent offeror.”

In this case, GAO sustained NET’s protest because three strengths on which CBP based its award to EMCOR were “strengths” that CBP “improperly inferred or assumed were part of EMCOR’s technical approach based on the evaluators’ personal knowledge of the awardee’s performance of the incumbent contract.”

This decision is just another example of the importance of an offeror’s attention to detail.  When it comes to writing a technical proposal, an offeror must spell out its technical approach. If it’s not within the four corners of the document, the agency cannot give an offeror credit for it.    

Native Energy & Technology, Inc., B-416783, December 13, 2018.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, events, and more. This post was published in the April 2019 Monthly Insights newsletter. To sign up for Monthly Insights, please click here.

Terry O’Connor is a Partner at Berenzweig Leonard. Terry and Stephanie Wilson  lead the firm’s Government Contracts practice. Terry can be reached at  toconnor@berenzweiglaw.com.