JCS Solutions, LLC

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.

Decision

Matter of: JCS Solutions, LLC

File: B-422249

Date: March 13, 2024

DIGEST

Protest alleging the terms of the solicitation improperly provide for a lowest-price, technically acceptable source selection process is denied where the solicitation provides for a comparative assessment of past performance.

The solicitation provides for the evaluation of proposals in three steps. AR, Tab 17, RFP amend. 0003. at 14. Under step one, the agency will conduct a technical evaluation of the five lowest-priced proposals on an acceptable/unacceptable basis. Id. From this pool of proposals, the agency will select the three lowest-priced, technically acceptable proposals to proceed to step two. Id. Under step two, the agency will evaluate the recency and relevancy of an offeror’s submitted past performance references and then assign the proposal an overall confidence rating of no confidence, limited confidence, neutral confidence, satisfactory confidence, or substantial confidence.[3] Id. The agency will also conduct a price reasonableness analysis under this step. Id. at 16. Only the proposals with a fair and reasonable price and a past performance rating of “substantial confidence” will be permitted to move on to step three.[4] Under step three, the agency will issue the task order to the lowest-priced, technically acceptable proposal that receives a rating of substantial confidence in past performance. Id.

On December 12, prior to the due date for proposals, JCS filed a protest with our Office challenging the terms of the solicitation. Protest at 1. In its protest, JCS alleged (1) the terms of the solicitation were contradictory regarding the source selection process in that the RFP provided for the issuance of the task order on both a best‑value tradeoff basis and an LPTA basis, (2) the solicitation improperly provided for an LPTA source selection process in violation of the FAR and DFARS, and (3) the solicitation failed to request professional compensation plans from offerors. See id. at 10‑21. On January 11, 2024, the agency requested dismissal of the protest on the basis that it intended to take corrective action. AR, Tab 27, Notice of Corrective Action at 2. Specifically, the agency explained that it would amend sections M and L of the solicitation to delete any reference to a best-value tradeoff source selection process. Id. at 1‑2. The agency also stated that it would delete a portion of section M that provided that the agency reserved the right to make a “best[-]value award decision” and issue the task order to an offeror other than one whose proposal received a rating of substantial confidence in past performance. Id. at 1.

The protester objected to the agency’s request for dismissal on the basis that it did not render the entire protest academic, namely the protest grounds asserting that the solicitation improperly provided for an LPTA source selection process and that the agency failed to request professional compensation plans. AR, Tab 28, JCS Objection to Corrective Action at 3‑4. Our Office denied the agency’s request for dismissal and requested the agency submit an agency report in response to the two remaining protest grounds referenced by JCS.[5] COS/MOL at 1.

DISCUSSION

JCS, which is the incumbent contractor, alleges that the solicitation improperly provides for an LTPA source selection process in violation of the FAR and DFARS. Comments at 2. Specifically, JCS contends that the solicitation does not provide for a comparative assessment of proposals. For reasons discussed below, we deny the protest.[6]

Our Office has stated consistently that the contracting agency has the primary responsibility for determining its needs and the best method of accommodating them. Sterisyn, Inc., B‑418366 et al., Apr. 1, 2020, 2020 CPD ¶ 114 at 7. Thus, it is the protester’s obligation to establish the solicitation violated applicable procurement laws or regulation. Id.

Here, JCS contends that the solicitation sets forth an LPTA source selection process in violation of DFARS section 215.101-2-70(a)(1).[7] Protest at 14. The agency responds that the solicitation does not provide for an LPTA source selection process as it requires a comparative assessment of past performance. COS/MOL at 13. According to the agency, the assignment of a confidence rating based on the recency and relevancy of past performance references is, by definition, a comparative assessment because it does not use a pass/fail rating system. Id. at 15. JCS disputes this interpretation, arguing that the agency’s use of a confidence rating scale is only a qualitative assessment, not a comparative assessment. Comments at 4 n.3.

Based on the record, we have no basis to conclude that the solicitation provides for an LPTA source selection process. Section 16.505 of the FAR does not explain how to treat past performance when placing orders using an LPTA source selection process; we therefore turn to FAR part 15 for guidance. Section 15.101-2(b) of the FAR provides that if an agency uses an LPTA source selection process and the contracting officer elects to use past performance as an evaluation factor, past performance is to be evaluated in accordance with FAR section 15.305, but the comparative assessment in FAR section 15.305(a)(2)(i) does not apply. Id. Section 15.305(a)(2)(i) provides that the comparative assessment of past performance information is separate from the responsibility determination required under FAR subpart 9.1. In other words, if the agency proceeds with an LPTA source selection process and intends to evaluate past performance, the FAR does not anticipate a comparative assessment of past performance. Conversely, if there is a comparative assessment of past performance, the source selection process is not an LPTA. As outlined above, the issue presented in this protest concerns the definition of the term “comparative assessment.”

Other than explaining that the “currency and relevance of the information, source of the information, context of the data, and general trends in contractor’s performance shall be considered” as part of the comparative assessment of past performance and indicating that this assessment is separate from the responsibility determination required under FAR subpart 9.1, FAR section 15.305(a)(2)(i) does not provide guidance as to what is meant by a comparative assessment of past performance.

Although JCS contends that a comparative assessment requires the agency to compare proposals to determine whether any discriminators exist, Comments at 4, we do not think that the FAR requires a comparison of proposals to one another under section 15.305, which pertains to the evaluation of individual proposals against the evaluation criteria. Rather, in the context of FAR section 15.305(a)(2), a comparative assessment of past performance can include evaluating past performance on a scale, rather than on the basis of a pass/fail assessment. In reaching this conclusion, we note that our Office has interpreted the term “comparative assessment,” or “comparative evaluation,” to include circumstances when “competing proposals will be rated on a scale relative to each other, rather than on a pass/fail basis.” Beck’s Spray Serv., Inc., B‑299599, June 18, 2007, 2007 CPD ¶ 113 at 5. Because the solicitation here provides for the evaluation of past performance on a scale, which includes possible ratings of no confidence, limited confidence, neutral confidence, satisfactory confidence, or substantial confidence, we conclude that the solicitation does not provide for an LPTA source selection process.

The protest is denied.

Edda Emmanuelli Perez
General Counsel