Federal Prison Industries, Inc.

B-417100 Jan 25, 2019 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Federal Prison Industries, Inc. (FPI), of Washington, D.C., protests the award of a contract to Creighton AB, Inc., of Reidsville, North Carolina, under request for proposals (RFP) No. SPE1C1-17-R-0111, which was issued by the Defense Logistics Agency (DLA), for shirts. FPI challenges the agency's consideration of past performance information that occurred after the RFP's closing date for proposals. We deny the protest. We deny the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This version has been approved for public release. Decision Matter of:  Federal Prison Industries, Inc. File:  B-417100 Date:  January 25, 2019 Steven Thaler, Esq., Department of Justice, for the protester. Marc Lamer, Esq., Kostos and Lamer, P.C., for Creighton AB, Inc., the intervenor. Michael D. McPeak, Esq., Defense Logistics Agency, for the agency. Evan D. Wesser, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the agency’s consideration of past performance information occurring after the closing of the solicitation is denied where there is no legal prohibition on an agency considering relevant, recent past performance information that is known to the evaluators. DECISION Federal Prison Industries, Inc. (FPI)[1], of Washington, D.C., protests the award of a contract to Creighton AB, Inc., of Reidsville, North Carolina, under request for proposals (RFP) No. SPE1C1-17-R-0111, which was issued by the Defense Logistics Agency (DLA), for shirts.  FPI challenges the agency’s consideration of past performance information that occurred after the RFP’s closing date for proposals. We deny the protest. BACKGROUND The RFP, which was issued as a small business set-aside on January 10, 2018, and subsequently amended twice, sought proposals for the manufacture and delivery of two types of shirts.  The RFP anticipated the award of an indefinite-delivery, indefinite-quantity contract, with a 1-year base period, and four 1-year option periods, against which the agency could place fixed-price orders.  RFP at 6, 103.  Award was to be made on a best-value tradeoff basis, considering the following evaluation criteria, in descending order of importance:  (1) product demonstration models (PDM); (2) past performance; and (3) price.  Id. at 79.  The non-price factors, when combined, were to be significantly more important than price.  Id.  Only the evaluation of past performance is relevant to the issues in this protest. With respect to past performance, the RFP established that the agency would assign offerors an integrated performance confidence assessment rating based on the equally weighted factors of the recency, relevancy, and quality of the offeror’s past performance information.  Id. at 83.  The quality factor included two equally weighted subfactors:  (1) past quality of items; and (2) past delivery of items.  Id. at 79.  Relevant to the issues in this protest, the RFP defined “recent” past performance as occurring “during the two year period prior to the solicitation closing date.”  Id. at 82.  The RFP defined “not recent” past performance information as any past performance “before the two year period prior to the solicitation closing date.”  Id. The RFP closed on February 9.  DLA received four proposals in response to the RFP, including from FPI and Creighton.  Agency Report (AR), Tab 3, Price Negotiation Memo, at 2.  FPI cited four past performance references involving the manufacture of shirts for DLA in its February 7 proposal, including contracts:  SPE1C1-16-D-F001 (the F001 Contract); and SPE1C1-16-D-F002 (the F002 Contract).  AR, Tab 4, FPI Proposal, at 3‑6.  In the respective project descriptions for these contracts, FPI represented that there were no negative reports in the Past Performance Information Retrieval System for any of the contracts.  Id.  For the F001 and F002 Contracts, however, FPI noted that it had experienced some production delays due to issues with one of its vendors.  Id., at 3, 4.  FPI represented that it had removed work from the vendor, and that it anticipated resolution of the production issues going forward.  Id. After receipt of initial proposals, the contracting officer established a competitive range of three, including FPI and Creighton.  AR, Tab 8, Source Selection Decision, at 3-4.  On August 1, DLA opened discussions with the offerors in the competitive range.  The agency, in addition to addressing certain concerns with FPI’s product samples, notified the protester that it had identified 62 delivery orders across 13 contracts, including the four referenced in FPI’s proposal, that had experienced inexcusable delivery delays.  AR, Tab 9, FPI Discussions Letter (Aug.