Sometimes, it’s not you, it’s the solicitation. That’s perhaps the best summary of Great Southern Engineering v. United States. The protest involved a solicitation issued by NASA, and the protest centered on the question of whether past performance information from performance of multiple task orders under one contract is comparable to past performance information from performance on separate contracts. Protester contended that in the wake of the Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States, 136 S.Ct. 1969 (2016), task orders are contracts as a matter of law, so its 10 task orders were equivalent to 10 contracts. The solicitation provided that offerors would be evaluated on six criteria including past performance on similar projects and prior experience from contracts with agencies other than NASA. The agency would assess “10 of the Offerors’ most relevant contracts which are currently being performed or have been completed within 10 years.” Protester submitted past performance information for 10 task orders, all of which were performed under its single incumbent contract with NASA. Per the solicitation’s evaluation scheme, the Agency awarded protester fewer points for performance on its ten task orders than it gave to the awardee’s for performance on 10 separate contracts. In an initial protest to the Court of Federal Claims, NASA agreed to reevaluate the proposals but specifically told offerors that “a contract will be considered a single contract regardless of the number of task orders issued under the contract.” In response, protester filed an agency-level protest. NASA denied the protest, restating its position and explaining that it considered past performance on different contracts more relevant than past performance on one contract.
Another Court of Federal Claims protest followed in which Judge Wheeler similarly rejected protester’s argument. According to the court, the Supreme Court’s decision in Kingdomware is limited to the GSA Federal Supply Schedule and the Veterans Benefits, Health Care, and Information Technology Act of 2006. In particular, “Kingdomware does not stand for the general proposition that all task orders are considered contracts as a matter of law.” The contract at issue in this case was not an FSS order nor was NASA subject to the Act at issue in Kingdomware. The court went on to hold that NASA’s determination that the task orders were of limited relevance was reasonable given the agency’s explanation and the fact that half of the protester’s past performance reports did indeed come from the same Contracting Officer’s Representative and were identical in content. Moreover, NASA had discretion to decide what it considered relevant past performance information.
This case illustrates the importance of requesting explanations from the agency about the terms of a solicitation prior to the time for submitting proposals. While there is no guarantee that a pre-award protest would have changed the ultimate awardee in Great Southern, it’s clear that protesters would have been in a better position to attack the assumptions in the solicitation’s evaluation scheme or encourage the agency to include more specific requirements. Pre-award, the consideration is really whether the government is treating all offerors fairly. In that light, it would have been more difficult pre-contract award for the agency to rationalize why the protester should be penalized for having only one contract with one agency. Nothing in the decision indicates that protester’s past performance on its total of 87 task orders on one contract suggested a risk of inadequate performance on this contract. Once the dispute reached the post-contract award stage, however, the agency’s rationale could be supported by protester’s actual past performance information and the dispute was governed by the language of the Solicitation.