On November 15, the Government Accountability Office (GAO) denied a protest from AtVentures, LLC, a mentor-protégé joint venture, who challenged its exclusion from consideration for award on the basis that it was able to use the past performance of its protégé’s wholly-owned subsidiary to satisfy a solicitation requirement. GAO’s decision represents a cautionary tale for bidders who wish to use the past performance of affiliates—follow the instructions, or else!

The Solicitation

On July 30, the General Services Administration (GSA) excluded AtVentures’ proposal from consideration for the One Acquisition Solution for Integrated Services Plus (OASIS+) contract after it deemed AtVentures’ proposal noncompliant due to its failure to meet the solicitation’s eligibility requirements for mentor-protégé joint ventures. The Solicitation required bidders to submit “a minimum of one [r]elevant [q]ualifying [p]roject [] from the protégé or the offering [m]entor-[p]rotégé joint venture for each proposed [d]omain.” GSA ultimately found that “AtVentures had submitted qualifying project experience from Maximus Federal Consulting, the mentor in the mentor-protégé, but had not included a qualifying project performed by Inoventures, the protégé to satisfy the contract requirement.” Instead, Inoventures submitted a project from its wholly owned subsidiary.

The Dispute

The protester’s core argument was that GSA improperly excluded its proposal despite fulfilling the requirements by submitting a qualifying project from the protégé’s wholly-owned subsidiary. AtVentures contended that this should have satisfied the eligibility criteria for mentor-protégé joint ventures, based on the inclusion of a meaningful relationship commitment letter.

The Ruling

GAO upheld GSA’s decision determining that AtVentures misinterpreted the solicitation’s language. The solicitation made it clear that qualifying projects must come directly from the protégé or the mentor-protégé joint venture itself, not an affiliate or subsidiary. Furthermore, the meaningful relationship commitment letters were only applicable to scoring evaluation elements, not eligibility requirements.

AtVentures also argued that GSA overstepped its bounds by making a responsibility determination—something typically reserved for the Small Business Administration (SBA). Indeed, under SBA’s Certificate of Competency (CoC) program, SBA can only make responsibility determinations for small businesses; however, GAO disagreed with the protestor, clarifying that GSA’s rejection was not based on a nonresponsibility determination but rather due to AtVentures’ failure to comply with mandatory submission requirements.

Conclusion

The decision underscores the importance of reading the solicitation language very carefully. While the Federal Acquisition Regulation (FAR) allows agencies to consider the past performance of affiliates, parents, and subsidiaries, it does not require them to do so. Agencies have a fair amount of discretion to decide how they want to consider past experience. Where the solicitation is clear, bidders must comply thoroughly with the stated requirements.

If you have any questions about the past performance requirements or other bid protest issues, please contact the authors.