• Joint Venture Participants - Credit for Past Performance
  • April 1, 2014 | Author: Evangelin Lee Nichols
  • Law Firm: Smith, Currie & Hancock LLP - Washington Office
  • In a bid protest decision regarding a “best value” award, the Government Accountability Office (“GAO”) sustained the protests by disappointed offerors on the grounds that the procuring agency unreasonably credited a joint venture awardee with the corporate experience and past performance of the separate affiliates of one joint venture partner, where the record did not show that the affiliates would be involved in the contract performance.

    Background

    In IAP World Services, Inc., EMCOR Gov’t Services, Comp. Gen. Dec. B-407917.2 et al, 2013 CPD ¶ 171, IAP World Services, Inc. (“IAP”) and Emcor Government Services (“Emcor”) protested the Navy’s award of a contract for base operating support services to J & A World Services LLC (“J & A”). The GAO decision noted that J & A’s proposal identified the offeror as a joint venture (“JV”) between J & J Worldwide Services (“J & J”) as the managing partner and Alutiiq Global Solutions, LLC (“Alutiiq”). The JV agreement stated that the joint venturer participants were committed to providing capital to the joint venture entity but it did not indicate any other support.

    The JV would be managed by a board consisting of J & J’s executive vice president/chief operating officer and the senior vice president of Alutiiq’s parent company. The proposal also identified a J & J employee as the project manager and other J & J employees were identified as key members to support on-site personnel. All of the proposed on-site, key personnel (the project manager, quality control manager, site safety/health officer, and utility/environmental manager) were employed by companies other than J & J or Alutiiq. Under the corporate experience and past performance factors, J & A identified two projects performed by Alutiiq-Mele and Alutiiq Management Services, LLC, which were separate corporate subsidiaries of Alutiiq’s parent. J & A’s proposal stated that the board of managers has “direct access to parent company resources and will channel these resources to the Project Manager.”

    Following an earlier protest, the Navy sought revised proposals from each offeror. After a comparative analysis of the revised proposals, the source selection evaluation board (“SSEB”) recommended an award to J & A as best overall, followed by Emcor and IAB. The source selection authority (“SSA”) agreed with SSEB’s recommendation of an award to J & A and explained in the cost/technical tradeoff analysis that “J & A’s proposal offered a solid base of project experience, a well thought out technical approach, and experienced and knowledgeable personnel.” The SSA also stated that J & A’s small business subcontracting plan met or exceeded the agency’s established goals.

    J & A’s proposal was lowest in price and rated as “acceptable,” Emcor’s proposal was rated “good,” and IAP’s proposal was rated “excellent.” The SSA’s cost/technical tradeoff analysis concluded that Emcor and IAP did not offer any features worth paying for. All three offerors were evaluated as “substantial” in past performance.

    IAP and Emcor protested that the Navy unreasonably credited J & A with the corporate experience and past performance of two separate affiliates of Alutiiq’s parent company, despite J & A’s failure to indicate that the affiliates would be substantially involved in contract performance. Specifically, they argued that J & A’s proposal only made general statements about the availability of Alutiiq, LLC’s resources but the proposal did not demonstrate that either corporate affiliate committed to perform any part of the contract or provide resources.

    GAO Sustains Protests

    Sustaining the protest, the GAO held that the Navy unreasonably evaluated J & A’s proposal under the corporate experience and past performance factors. It rejected the Navy’s contention that J & A’s proposal demonstrated a sufficient nexus among the affiliated Alutiiq entities, the corporate structure of their parent company, Alutiiq, LLC such that the subsidiaries’ corporate experience and past performance could be attributed to Alutiiq Global Solutions, LLC.

    An agency may attribute the experience or past performance of a parent or affiliated company to an offeror when the proposal demonstrates that the resources of the parent or affiliate will affect the performance of the offeror. The relevant consideration is whether the resources of the parent or affiliated company will be provided or relied upon for contract performance such that the parent or affiliate will have meaningful involvement in contract performance. Ecompex, Inc., B-292865.4 et al., June 18, 2004, 2004 CPD ¶ 149 at 5. While the GAO recognizes it appropriate for an agency to consider an affiliate’s performance record where the affiliate will be involved in the contract effort or where it shares management with the offeror, it is inappropriate to consider an affiliate’s record where that record does not bear on the likelihood of successful performance by the offeror.

    Here, the GAO was not persuaded that attribution was proper based on J & A’s proposal stating that Alutiiq Global Solutions, LLC could “reach back” through Alutiiq, LLC for the resources or any of its 17 corporate subsidiaries. Further, while the identification of Alutiiq, LLC’s senior vice president on J & A’s board of managers demonstrated the commitment of resources by the parent corporation, it did not show a specific commitment of resources from the two corporate subsidiaries. Thus, the record did not show that the resources of the corporate subsidiaries - that is, their workforce, management, facilities, or other resources would be provided or relied upon for contract performance.

    Practical Advice

    An offeror requesting credit for the corporate experience and past performance of an affiliate should clearly explain in the proposal how the affiliate will affect the successful performance by the offeror. The affiliate’s past performance record is more likely to be attributed to the offeror if the proposal demonstrates that the affiliate will be involved in contract efforts in a meaningful manner such as in sharing management responsibility with the offeror, or reliance upon the affiliate’s workforce or facilities, or other use of the affiliate’s resources.