United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

DOCUMENT FOR PUBLIC RELEASE 

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: Herley Industries, Inc. 

File: B-400736.2 

Date: January 15, 2009 

Brian A. Bannon, Esq., Andrew W. Dyer, Esq., and Brian S. Gocial, Esq., Blank Rome 

LLP, for the protester. 

Richard Sauber, Esq., and Deneen J. Melander, Esq., Robbins Russell Englert Orseck 

Untereiner & Sauber LLP, for Amherst Systems, Inc., the intervenor. 

Marvin D. Rampey, Esq., and Angela J. Cosentino, Esq., Naval Sea Systems 

Command, for the agency. 

Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Protest that agency improperly failed to consider past performance of an affiliated 

subsidiary company is denied where the record shows that, even if considered, the 

past performance information offered was incomplete, and the agency’s past 

performance rating of neutral was therefore reasonable. 

DECISION 

Herley Industries, Inc., of Lancaster, Pennsylvania, on behalf of its wholly-owned 

subsidiary Micro Systems, Inc. (MSI), of Fort Walton Beach, Florida, protests the 

award of a contract to Amherst Systems, Inc., of Buffalo, New York, under request 

for proposals (RFP) No. N00164-08-R-WM01, issued by the Department of the Navy, 

Naval Sea Systems Command (NAVSEA), Maritime Electronic Warfare Division 

(MEWD), for a multi-spectral simulator (MSS) system.1

 Herley asserts that the Navy 

 

1

 The RFP requires the development and delivery of an MSS system, along with 

installation and maintenance. The MSS system in this procurement includes a fixed 

radio frequency (RF) stimulation subsystem, a portable RF stimulation subsystem, 

an infrared (IR) simulation subsystem, a synchronization and control subsystem, and 

a signal management subsystem. RFP at 15. 
improperly failed to consider the past performance of Herley subsidiary Electronic 

Warfare Simulation Technology (EWST), submitted in support of MSI’s proposal.2

We deny the protest. 

BACKGROUND 

The Navy issued the RFP on January 24, 2008, with a proposal due date of April 30. 

The RFP included five evaluation factors: Factor 1, price; Factor 2, past 

performance; Factor 3, subcontracting plan; Factor 4, quality assurance program; 

and Factor 5, standard commercial warranty. Past performance included three 

subfactors: previous experience in developing and delivering similar systems; 

reliability of previous similar systems sold (reliability); and a record of meeting 

previous delivery schedules for similar systems (timeliness of delivery). RFP at 70. 

Offerors were instructed to address all three past performance subfactors. Id. at 72. 

The first two past performance subfactors were equal in importance and more 

important than the third. Price and past performance were equal in importance. 

Factor 4 was to be evaluated on a go/no-go basis. Factors 3 and 5 were not rated but 

would “not be ignored in determining the ‘Best Value’ to the Government.” Id. 

Both the awardee and MSI submitted timely proposals. After the initial evaluation, 

the agency conducted two rounds of discussions with all offerors; MSI and the 

awardee submitted revised proposals in response to each round. In its original 

proposal, MSI submitted contractor performance data sheets for five contracts, 

including information addressing each of the three subfactors. AR, Tab 11, MSI 

Proposal, Attach. 2. The agency found that the past performance for all three 

subfactors was lacking for three of the five subsystems. During the first round of 

discussions, the agency indicated to MSI that “[t]he references you provided relate to 

RF experience. The lack of past performance information related to three of the five 

 

2

 An earlier protest by Herley (B-400736) was dismissed as premature because it was 

filed prior to the protester’s debriefing. See Bid Protest Regulations, 4 C.F.R. 

§ 21.2(a)(2) (2008). In that protest, Herley argued that, during discussions, the 

agency improperly directed MSI to move certain pricing from one line item to 

another, thereby increasing MSI’s evaluated price. The protester asserts generally 

that the initial protest ground was incorporated into the current protest, which was 

filed after it received its debriefing. See Protester’s Letter, Nov. 26, 2008, at 2. In 

none of its multiple filings, however, did the protester address its initial protest 

ground or respond to the agency’s and intervenor’s arguments that the initial protest 

was untimely filed and/or failed to state a valid basis of protest. See Supp. Agency 

Report (AR), Dec. 12, 2008, at 2 n.2; AR, Nov. 17, 2008, at 1 n.2; Intervenor’s 

Comments, Dec. 4, 2008, at 2. See also Protester’s Comments, Dec. 4, 2008, at 2. 

Accordingly, we consider the protester to have abandoned the issues raised in the 

initial protest. 

Page 2 B-400736.2 
subsystems of the MSS [is] something you may want to address (IR, synchronization 

and control, and signal measurement).” Protest, Oct. 15, 2008, Attach. H, E-mail from 

Agency to MSI, July 1, 2008. In its revised proposal, MSI submitted a narrative 

description of past performance for EWST--another wholly-owned subsidiary of the 

protester that was to deliver a critical piece of equipment--that contained 

information for three additional contracts.3

 See id., Attach. K, Proposal Supplement, 

July 9, 2008, at 23. MSI’s second proposal revision did not address the issue of past 

performance. 

After reviewing the revised proposals, the Navy assigned MSI a neutral (“Neither 

Favorable nor Unfavorable”) overall past performance rating. This conclusion was 

based on the Navy’s decision not to impute EWST’s past performance information to 

MSI; in the absence of EWST’s information, the agency concluded that MSI lacked 

the past performance called for by the RFP. AR, Supp. Document Prod., MSS ReEvaluation of Final Revised Proposals, Aug. 20, 2008, at 1, 3. In this regard, while the 

agency ultimately decided not to take EWST’s information into account in rating 

MSI’s past performance, the record shows that the evaluators nonetheless did review 

that information and assigned EWST a rating of “favorable” for subfactor one under 

past performance. Id., Encl. 1 at 8-9. However, because the EWST information did 

not address either of the other two past performance subfactors--reliability and 

delivery--the evaluators rated EWST neutral for these two subfactors. Id. 

The offerors’ past performance ratings became the evaluation discriminator; MSI’s 

proposal offered a price advantage over the awardee’s proposal, but the agency 

considered Amherst’s proposal, with its higher past performance rating of “highly 

favorable,” to be worth the approximately [DELETED] premium. See AR, Supp. 

Document Prod., MSS Re-Evaluation of Final Revised Proposals, Aug. 20, 2008, 

at 3-4. Award was made to Amherst, and this protest followed. 

ANALYSIS 

The protester challenges its past performance rating of “neutral,” asserting that, 

based on the supplemental past performance information regarding EWST4

 that MSI 

 

(continued...) 

3

 The information was not submitted on contractor performance data sheets. It was 

the protester’s responsibility to complete the data sheets, RFP at 62, 67, and the 

contracting officer was not responsible for locating or securing any information not 

furnished with the offer. RFP at 71. 

4

 The intervenor argues that the supplemental past performance information should 

not be considered, because the three additional contracts it references are in excess 

of the maximum of five required under the RFP, and because the information was 

not submitted on contractor performance data sheets, as required by the RFP. The 

RFP states that the “Government reserves the right to not consider any information 

submitted exceeding the five-contract limitation.” RFP at 62. This language does not 

Page 3 B-400736.2 
submitted after the first round of discussions, the only reasonable past performance 

rating was at least “favorable.” While the parties’ arguments focused on the agency’s 

decision not to consider EWST’s past performance in its evaluation of MSI, we do 

not need to resolve that issue. Rather, as discussed below, even if the agency had 

included in its evaluation the information MSI submitted concerning EWST’s past 

performance, we see no basis to conclude that the agency’s neutral past performance 

rating of MSI would have changed. Accordingly, the protester was not prejudiced by 

the agency’s decision not to consider EWST’s past performance information. See

LexisNexis, Inc., B-299381, Apr. 17, 2007, 2007 CPD ¶ 73 at 6-7 n.6. 

In reviewing an agency’s evaluation of past performance, we examine the record to 

determine whether the evaluation was reasonable and in accordance with the stated 

evaluation scheme and applicable procurement statutes and regulations. The MIL 

Corp., B-294836, Dec. 30, 2004, 2005 CPD ¶ 29 at 5. Here, consistent with Federal 

Acquisition Regulation § 15.305(a)(2)(iv), the RFP stated that “[o]fferors who do not 

have same or similar past performance information reasonably available to the 

Contracting Officer will not be rated either favorable or unfavorable.” RFP at 71. 

As noted above, the RFP required offerors to submit past performance data that 

addressed all three subfactors and indicated that the agency would not be 

responsible for seeking out missing information. The record shows, however, that 

the information regarding EWST that MSI furnished to the agency after discussions 

was incomplete, addressing only one of the three past performance subfactors--

previous experience in developing and delivering similar systems, but not reliability 

and timeliness of delivery. AR, Supp. Document Prod., MSS Re-Evaluation of Final 

Revised Proposals, Aug. 20, 2008, Encl. 1 at 8-9. In light of the lack of information to 

establish the offeror’s past performance history under the two subfactors, the 

agency’s decision to assign MSI a past performance rating of neutral was reasonable 

and consistent with the RFP, even taking into account the information regarding 

EWST. 

The protester argues that the lack of information regarding EWST’s past 

performance under two of the three subfactors is immaterial, because the other five 

past performance references MSI provided in its initial proposal did in fact address 

subfactors two and three. We disagree. MSI’s five original references themselves 

were incomplete in the sense that they addressed only two of the five MSS 

subsystems; MSI’s omission of the requested past performance information relating 

to the other three MSS subsystems was the subject of the agency’s discussion 

question to MSI, asking it to address its past performance as it relates to the other 

 

(...continued) 

prohibit an agency’s decision, as in this case, to consider more than five contracts. 

Further, the agency did not specifically require that the requested supplemental 

information be submitted on contractor performance data sheets. 

Page 4 B-400736.2 
Page 5 B-400736.2 

 

three subsystems. The RFP, in requesting past performance information the way 

that it did, that is, by setting out the three subfactors relevant to the past 

performance evaluation, asked offerors to describe not only their experience with 

particular system components, but also, specifically, the reliability and timeliness of 

delivery of those components. In discussions, the protester was explicitly advised 

that the firm had not addressed its past performance for three of the five subsystems. 

Simply, the protester failed to furnish any information with regard to reliability and 

timeliness of delivery for those subsystems identified during discussions. 

The protester also asserts that, in discussions, the agency asked only for information 

related to subfactor one.5

 We find such a narrow interpretation of the agency’s 

request unsupported. The discussion question identified “lack of past performance 

information” generally and did not limit it to subfactor one. 

The RFP called for, but MSI did not provide, information on the reliability and 

timeliness of delivery of the equipment that was the subject of the supplemental past 

performance information offered in response to the concern raised during 

discussions. Because MSI failed to provide the information necessary to assess the 

past performance under these three contracts, we see no basis on which to question 

the reasonableness of the protester’s past performance rating of “neutral.” 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

5

 The protester also challenges the adequacy of the discussions, alleging that the 

agency improperly failed to inform MSI during the second round of discussions that 

the agency’s evaluation would not credit MSI with the past performance of EWST. 

Protester’s Letter, Nov. 26, 2008, at 5. We fail to see how MSI was prejudiced by the 

action it challenges; the protester has offered no persuasive explanation of how MSI 

would have changed its proposal had the agency told it that it would not consider 

EWST’s past performance information. See, e.g., Protester’s Comments on Supp. AR, 

Dec. 19, 2008, at 7 (stating that “if the Agency chose to persist with such a 

circumscribed view of Past Performance, MSI would have had to protest the 

Agency’s interpretation and, if justice prevailed, the Agency would have issued a new 

solicitation.”). In any event, where, as here, the nature and relevance of past 

performance information is clear to the agency and the offeror receives a neutral 

rating, the agency need not conduct discussions with the offeror regarding the 

information. Standard Commc’ns, Inc., B-296972, Nov. 1, 2005, 2005 CPD ¶ 200 at 8.