Reasonableness of Past Performance Evaluation Affirmed

The Court of Federal Claims properly rejected a challenge to a past performance evaluation, according to a majority of the Court of Appeals for the Federal Circuit, because the protester failed to demonstrate its overall rating of “less than satisfactory” lacked a rational basis. The past performance questionnaires gave the protester overall past performance ratings of “outstanding,” “better,” and “satisfactory,” and the past performance evaluation team initially assigned the protester an overall rating of “satisfactory.” Following discussions, however, the PPET revised the protester’s overall rating to “less than satisfactory.” In denying the protest of the contract award for maritime husbanding services, the CFC found the government properly considered the protester’s entire record of past performance, including the additional comments in the past performance questionnaires and the results of discussions ( 56 CCF ¶79,853).

Negative Comments

On de novo review, the Federal Circuit concluded the protester’s overall rating was rationally based on the government’s evaluation of all of the evidence before it. Even though each of the protester’s references rated the protester’s performance as “satisfactory” or “better” overall, the narrative comments detracted from those ratings. The government reasonably considered the entire record, including several “less than satisfactory” subfactor ratings and negative comments from the narrative portion of the questionnaires, and its reasonable interpretation of the facts was entitled to considerable deference. In addition to finding the awardee’s past performance evaluation did not lack a rational basis, the Federal Circuit also found the protester was not prejudiced by its past performance rating and the best value decision was supported by the record and well within the substantial discretion of the contracting officials.

Dissent

Justice Moore, dissenting, felt the protester’s overall past performance rating lacked a rational basis, “both legally and mathematically.” In her view, the PPET’s initial “satisfactory” rating seemed inconsistent with the “high” past performance ratings assigned by the protester’s references. Then, the PPET revised the rating downward. The purported basis for the lower rating was some negative comments in the questionnaires, but the protester’s references did not believe their own negative comments warranted such a low rating, and these “references were uniquely positioned to consider the appropriate impact to give their own negative comments on [the protester’s] overall rating, given their interaction with [the protester] over the course of the contracts at issue.” The PPET based its change to the overall rating exclusively on these references, and it had no additional or independent information which would warrant lowering the ratings. ( Glenn Defense Marine (Asia), PTE Ltd. v. U.S., et al., CA-FC, 57 CCF ¶80,100)