The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series. In this series, Crowell’s Government Contracts Practice keeps you up to date with a summary of one of the most notable bid protest sustain decisions each month. Below, Crowell Consultant (and former GAO Bid Protest Hearing Officer) Cherie Owen discusses GAO’s decision in Veros Real Estate Solutions, LLC, where the VA’s past performance relevancy evaluation unraveled under GAO scrutiny for lacking any meaningful supporting analysis.

Veros Real Estate Solutions, LLC (Veros), a small business, protested the VA’s award of a contract for loan appraisal services. The RFP contemplated award to the proposal that represented the “best value,” considering technical, past performance, and price factors. Neither Veros nor the eventual awardee (Lynch) submitted past performance questionnaires (PPQs) as required by the solicitation, so the agency evaluated past performance using Contractor Performance Assessment Reporting System (CPARS) reports it found: two for Veros and four for team Lynch. The VA rated both offerors “Exceptional” under the technical factor and “Substantial Confidence” under past performance. Finding the proposals “essentially equal in technical merit and performance risk,” the agency selected Lynch based on its significantly lower price of $16.9 million compared to Veros’s $31.7 million.

Under the RFP, past performance relevancy was defined as how well the requirements of a referenced contract aligned with the solicitation’s PWS, and a contract reference had to be found relevant before the agency could assign a confidence rating. Veros challenged the relevancy evaluation of all four of Lynch’s CPARS reports.  For example, the VA had credited Lynch for a Department of Health and Human Services (HHS) contract, finding that Lynch provided records management services, training, and change management similar to tasks required by the PWS here. The problem, Veros argued (and GAO agreed), was that the CPARS report described those activities as duties of the government program office, not work performed by Lynch. The agency thus credited Lynch for work it did not perform.

GAO also agreed that even if Lynch’s HHS contract somehow included those services, the contemporaneous record failed to explain how that work mapped to the cited PWS sections. For example, one section of the PWS contained over eight pages of specific IT and online accessibility requirements, while the CPARS report contained, at best, a generic reference to “Records Management” with no elaboration. Without any explanation of how the agency drew the connection between the HHS work and the solicitation’s requirements, GAO found the evaluation unreasonable.

GAO found the same problems across Lynch’s other three CPARS reports. As another example, the VA found credited Lynch with performance of a USDA task order, but offered no explanation of how that work related to the RFP’s requirements. As a result, GAO found the relevance was not apparent, and the conclusory evaluation could not stand.

In sustaining Veros’ past performance challenge, GAO noted that this protest ground was uncontested – the VA’s supplemental agency report did not respond to this challenge at all.  Moreover, because the relevancy evaluation of all four CPARS reports was unsupported and therefore unreasonable, GAO also found unreasonable the agency’s assignment of an overall Substantial Confidence past performance rating to Lynch because a confidence rating could only be assigned after a reference was first found relevant.

The Veros decision provides an important reminder that relevancy findings require genuine analysis, not mere conclusions. An evaluation that does no more than match a keyword in a CPARS report to a PWS section number without explaining how the referenced work aligns with the solicitation’s actual requirements is not an adequate relevancy determination. For contractors evaluating whether to protest a past performance evaluation, Veros demonstrates that the focus need not be on whether the agency’s ultimate confidence rating was wrong, but whether the analytical foundation for it was reasonable. Where the contemporaneous record contains nothing but bare conclusions, GAO may find the agency’s conclusions unsupported.