Comptroller General

United States Government Accountability Office

Washington, DC 20548 

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: MFM Lamey Group, LLC 

File: B-402377 

Date: March 25, 2010 

Robert M. Anderson, Esq., Akerman Senterfitt, LLP, for the protester. 

Genevieve G. Stubbs, Esq., Overseas Private Investment Corporation, for the agency. 

Pedro E. Briones, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

1. Procurements of supplies and services by the Overseas Private Investment 

Corporation (OPIC), a wholly-owned government corporation which is identified as 

a federal agency under the Competition in Contracting Act of 1984 (CICA), are 

subject to GAO’s bid protest jurisdiction. 

2. OPIC’s procurement of planning and logistical support services is subject to the 

procurement procedures of the Federal Property and Administrative Services Act 

of 1949, as amended by CICA, and the Federal Acquisition Regulation. 

3. Protest that the agency unreasonably attributed to the awardee past performance 

that should actually have been attributed to the protester (where the protester and 

awardee are successor firms to another entity) is denied where the record shows 

that the agency’s evaluation of the awardee’s past performance was based upon that 

firm’s performance since the split of the two firms. 

DECISION 

MFM Lamey Group, LLC, of Miami, Florida, protests the award of a contract to 

MFMci, LLC, of Miami, Florida, under request for proposals (RFP) No. OPIC-10-R0006, issued by the Overseas Private Investment Corporation (OPIC) for planning 

and logistical services for an international investment conference. MFM Lamey 

challenges OPIC’s past performance evaluation, arguing that the agency improperly 
attributed to the awardee past performance that was actually attributable to the 

protester.1

We deny the protest. 

BACKGROUND 

OPIC was established in 1969 to promote and assist United States business 

investment in developing nations. See 22 U.S.C. § 2191 (2006); see also The Overseas 

Private Investment Corporation: Background and Legislative Issues, Congressional 

Research Service Report for Congress, No. 98-567, Dec. 1, 2009, at 1. 

The RFP, issued on Federal Acquisition Regulation (FAR) standard form 1447 on the 

Federal Business Opportunities (FedBizOpps) website, provided for the award of a 

time-and-materials contract for planning, promotion (including identifying and 

recruiting qualified American companies) and logistics support for an international 

business and investment conference to be held in India in the spring of 2010. The 

RFP provided a statement of work (SOW) that detailed the services to be provided 

under the contract and informed offerors that contract deliverables would include a 

detailed marketing plan, production/project calendar, conference preparations and 

logistics, conference materials, a conference website, weekly status reports, and a 

final report within 45 days following the conference. SOW at 1-2. 

The RFP set out the language of Alternate 1 of FAR clause 52.212-4, “Contract Terms 

and Conditions--Commercial Items (Oct. 2008),” but did not include the remainder of 

that standard FAR clause. The RFP included no other instructions or information for 

offerors, and in particular, did not state any evaluation criteria or identify a basis for 

award.2

 The solicitation notice posted on the FedBizOpps website, however, 

requested that offerors “submit up to five of the attached [past performance] 

questionnaires completed by former customers with your proposal.” See Solicitation 

Notice at 2. 

OPIC received four proposals by the stated closing date for receipt of proposals. 

Agency Report (AR) at 2. The proposals were evaluated by a three-person panel 

under two factors: technical capability and past performance.3

 AR, Tabs F-1, F-2, 

 

1

 The protester states that it and the awardee are separate, successor companies to 

MFM Group, Inc., which was split in 2008 by mutual agreement of its owners. 

2

 No aspect of the RFP was protested to our Office or the agency. 

3

 Technical capability was assessed as either outstanding, better, acceptable, 

marginal, or unacceptable; past performance was assessed as either outstanding, 

better, acceptable, marginal, or neutral. 

Page 2 B-402377 
G-1, G-2 (Evaluations). The evaluation panel concluded that MFMci’s proposal, 

which was rated as “outstanding” overall, was superior to MFM Lamey’s proposal, 

which was rated as “better” overall, and recommended award to MFMci. With 

respect to the offerors’ past performance evaluations, the evaluation panel noted 

that MFMci’s past performance since its split from the MFM Group was “very 

impressive,” and that OPIC had direct experience with MFM Lamey and had found 

its “customer service to be lacking,” since the split. AR, Tab H, Email from the 

Evaluation Panel Chairperson to the Contracting Officer, Dec. 15, 2009. The 

contracting officer accepted the evaluation panel’s recommendation. 

Following notice of the award, MFM Lamey protested the awardee’s past 

performance evaluation to OPIC, arguing that MFMci may have received credit for 

MFM Lamey’s past performance and that the use of MFM Lamey’s past performance 

history constituted an appropriation of the protester’s intellectual property. OPIC 

denied the agency-level protest, and this protest to our Office followed. 

DISCUSSION 

Jurisdiction 

As a preliminary matter, the agency argues that “GAO does not have authority to 

review this protest, and should dismiss it, because the contract at issue is funded 

with non-appropriated funds.” OPIC Request for Dismissal at 2-3. We find, as 

explained below, that we have bid protest jurisdiction to review OPIC’s award of a 

contract to MFMci. 

Our authority to decide bid protests is set forth in the Competition in Contracting 

Act of 1984 (CICA), which defines a protest, as relevant here, to be a written 

objection by an interested party to an award of a contract by a federal agency for the 

procurement of property or services. See 31 U.S.C. §§ 3551(1), 3553 (2006). Since 

the passage of CICA, our bid protest jurisdiction has not been based on the 

expenditure of appropriated funds. See USA Fabrics, Inc., B-295737, B-295737.2, 

Apr. 19, 2005, 2005 CPD ¶ 82 at 2. Rather, our threshold jurisdictional concern is 

whether the procurement at issue is being conducted by a federal agency. 

Americable Int’l, Inc., B-251614, B-251615, Apr. 20, 1993, 93-1 CPD ¶ 336 at 2. In this 

regard, CICA adopted the definition of federal agency set forth in section 3 of the 

Federal Property and Administrative Services Act of 1949 (FPASA), 40 U.S.C. § 102 

(2006). See 31 U.S.C. § 3551(3). FPASA defines a federal agency as including any 

“executive agency,” which it defines as including any executive department or 

independent establishment in the executive branch of the government, and any 

wholly-owned government corporation.4 40 U.S.C. §§ 102(4), (5). 

 

(continued...) 

4

 We recognize that our Bid Protest Regulations, 4 C.F.R. § 21.5(g) (2009), state that 

protests of procurements by nonappropriated fund activities are beyond our bid 

Page 3 B-402377 
OPIC is specifically identified as a wholly-owned government corporation, 31 U.S.C. 

§ 9101(3)(H), and is thus, as defined by CICA, a federal agency for the purposes of 

our bid protest jurisdiction.5 See Professional Pension Termination Assocs., 

B-230007.2, May 25, 1988, 88-1 CPD ¶ 498 at 5 (GAO has bid protest jurisdiction over 

procurements of the Pension Benefit Guarantee Corporation, a wholly-owned 

government corporation). 

Application of CICA and the FAR 

OPIC also argues that, even if this procurement is within GAO’s bid protest 

jurisdiction, our review of the protest is limited to reviewing the reasonableness of 

the agency’s procurement actions because “the basic procurement statutes are not 

applicable” to OPIC.6

 AR at 4. The agency believes it is otherwise exempt from 

CICA under various provisions of titles 22, 40, and 41 of the U.S. Code. See id. at 4-5. 

Specifically, the agency argues that CICA, 41 U.S.C. §§ 251-260, is not applicable to 

purchases by executive agencies, when “made inapplicable pursuant to section 

113(e) of title 40 or any other law.” See 41 U.S.C. § 252(a)(2). OPIC contends that 

section 113(e)(2) provides that nothing in FPASA “impairs or affects the authority of 

an executive agency, with respect to any program conducted for the purposes of . . . 

foreign aid.” AR at 5. 

The agency also contends that under the Foreign Assistance Act of 1961, as 

amended, 22 U.S.C. § 2151 et seq., and Executive Order 11223, OPIC is exempted 

from provisions of FPASA. See 22 U.S.C. § 2393(a). Specifically, OPIC states that 

Executive Order 11223 exempts OPIC from the provisions of 41 U.S.C. §§ 5 and 8. 

See Executive Order 11223, Relating to the Performance of Functions Authorized by 

the Foreign Assistance Act of 1961, As Amended, §§ 1(4), (5), (May 12, 1965), 

reprinted at 30 Fed. Reg. 6,635. The agency also notes that other provisions of the 

Foreign Assistance Act provide the agency with authority to expend funds 

 

(...continued) 

protest jurisdiction. By its terms, however, this provision excludes from our 

jurisdiction protests concerning procurements by agencies “other than Federal 

agencies” as defined in FPASA. USA Fabrics, Inc., supra, at 2. Thus, the term 

“nonappropriated fund activities,” as used here, only refers to entities that are not 

federal agencies as defined in CICA and the FPASA. 

5

 OPIC has not previously challenged our bid protest jurisdiction. See, e.g., Digital 

Sys. Group, Inc., B-256422, B-256521, June 3, 1994, 94-1 CPD ¶ 344, recon. denied, 

B-256422.2, B-256521.2, Oct. 28, 1994, 94-2 CPD ¶ 169. 

6

 In cases where the basic procurement statutes are not applicable to a protested 

procurement, we review the agency’s actions to determine whether they were 

reasonable. The Real Estate Ctr., B-274081.4, Feb. 24, 1997, 97-1 CPD ¶ 85 at 2. 

Page 4 B-402377 
“notwithstanding any other provision of law” and “without regard to such laws and 

regulations governing the obligation and expenditure of funds” with respect to the 

procurement here. AR at 5, citing 22 U.S.C. §§ 2197(d)(3), 2396(b). 

Finally, OPIC argues that CICA only applies to wholly-owned government 

corporations that are “fully subject to” the provisions of the Government 

Corporation Control Act (GCCA), as amended, 31 U.S.C. §§ 9101-9110, and that 

GCCA is only “partially applicable” to OPIC. Id., citing 41 U.S.C. § 403(1)(D) 

(defining “executive agency”). In this respect, the agency explains that under 

22 U.S.C. § 2199(c) (Audits of the Corporation), OPIC is “subject to the applicable 

provisions of [GCCA], except as otherwise provided in [22 U.S.C. §§ 2191-2200b, 

OPIC’s organic statute].” Id. (emphasis in original). 

We find, as explained below, that the procurement at issue here is subject to the 

requirements of CICA, and that the agency has not identified any statute that 

expressly exempts it from CICA. We also find that the acquisition here is funded 

with appropriated funds and is subject to the FAR, which applies to the acquisition 

by contract with appropriated funds of supplies or services by and for the use of the 

federal government. 

FPASA, as amended by CICA, is the basic procurement statute applicable to 

procurements by most executive branch civilian agencies. See, e.g., Michael J. 

O’Kane; Lorna H. Owens, B-257384, B-257384.2, Sept. 28, 1994, 94-2 CPD ¶ 120 at 3. 

Executive agencies must make purchases and contracts for property and services in 

accordance with the provisions of the CICA and the FAR, except when the act is 

made inapplicable pursuant to another law. 41 U.S.C. § 252(a). That is, 41 U.S.C. 

§§ 251-260 apply in the absence of a statutory provision that, in express terms, 

exempts the procurement from the procurement statute.7 See Andrus v. Glover 

Constr. Co., 446 U.S. 608, 618 n.19 (1980). 

For example, the Tennessee Valley Authority, while a federal agency subject to 

GAO’s bid protest jurisdiction under CICA, is exempt from the requirements of full 

and open competition under CICA and the FAR because the agency’s procurement 

procedures are expressly authorized by a separate statute. NAC Int’l, Inc., B-310065, 

Nov. 21, 2007, 2008 CPD ¶ 3 at 5-6. Similarly, the United States Postal Service 

(USPS) is expressly exempted from federal procurement laws (including CICA and 

 

7

 There is a legal presumption that CICA applies to executive agencies, “except in the 

case of procurement procedures otherwise expressly authorized by statute.” Jacobs 

COGEMA, LLC, B-290125.2, B-290125.3, Dec. 18, 2002, 2003 CPD ¶ 16 at 10, cf., 

Department of Health & Human Servs.--Request for Advance Dec., B-232364, Oct. 5, 

1988, 88-2 CPD ¶ 325 at 2-3 (Buy Indian Act establishes procurement procedures 

which exempt purchases under the act from CICA). 

Page 5 B-402377 
our Bid Protest Jurisdiction), except as specifically enumerated in 39 U.S.C. § 410(b). 

Falcon Sys., Inc., B-222549, May 14, 1986, 86-1 CPD ¶ 462 at 1. See also Performance 

Excavators, Inc., B-291771, Mar. 17, 2003, 2003 CPD ¶ 63 at 2-3 (statute establishing 

Presidio Trust, a wholly-owned government corporation, expressly limits extent to 

which Trust is subject to federal procurement laws and regulations). 

The Foreign Assistance Act, which the agency argues exempts OPIC from the “basic 

procurement statutes,” does not by its terms expressly exempt the agency from CICA 

or authorize procurement procedures for OPIC. In making this determination, we 

reviewed the language of the Foreign Assistance Act to ascertain whether that Act 

expressly exempted OPIC from FPASA, as amended by CICA, and also reviewed the 

statute to determine whether the Act provided for procurement procedures different 

from those applicable to federal agencies generally. See, e.g., American Battle 

Monuments Comm’n--Contracting with Donated Funds for World War II Armed 

Forces Mem’l, B-275669.2, July 30, 1997, 97-2 CPD ¶ 41 at 4-5 (no specific provision 

of law excludes Commission from, or authorizes adoption of procurement rules 

unconstrained by, FPASA or the FAR). Our review leads us to conclude that the 

Foreign Assistance Act neither expressly exempts OPIC from FPASA, as amended by 

CICA, nor otherwise authorizes procurement procedures apart from CICA. 

We also disagree with OPIC that Executive Order 11223 exempts the agency from 

FPASA, as amended by CICA. That order, which was issued under the authority of 

section 633(a) of the Foreign Assistance Act, as amended (22 U.S.C. § 2393(a)), 

provides for the performance of functions authorized by the Act without regard to 

sections 5 and 8 of title 41. However, section 260 of title 41 specifically provides that 

sections 5, 8, and 13 of title 41 do not apply to the procurement of supplies or 

services by civilian executive agencies under CICA.8 See 41 U.S.C. § 260. 

Accordingly, we do not find that Executive Order 11223, although authorized by the 

Foreign Assistance Act, exempts the agency from FPASA, as amended by CICA. 

We also find that the limitation provision of 40 U.S.C. § 113(e)(2) does not exempt 

the agency from CICA or authorize procurement procedures for OPIC. That 

provision provides, in pertinent part, that nothing in FPASA should impair or affect 

the authority of an executive agency with respect to any program conducted for the 

purposes of foreign aid. OPIC has not shown, however, that complying with CICA or 

the FAR when it procures supplies or services impairs its authority to conduct 

foreign aid programs. On the contrary, the agency availed itself of several provisions 

of the FAR in conducting its procurement; that is, the procurement was advertised 

 

8

 Sections 5 and 8 of Title 41 were the basic procurement authority for civilian 

agencies prior to the enactment of CICA. We have found that 41 U.S.C. § 5 remains 

applicable to procurements by judicial branch agencies that are not subject to 

CICA’s procurement procedures. See Electrographic Corp.--Recon., B-225517.3, 

Sept. 11, 1987, 87-2 CPD ¶ 233 at 2. 

Page 6 B-402377 
on the FedBizOpps website; the solicitation was issued on FAR standard form 1447 

and included Alternate 1 of FAR clause 52.212-4, “Contract Terms and Conditions--

Commercial Items”; and the agency accepted MFM Lamey’s agency-level protest 

under FAR § 33.103. Moreover, our Office has decided numerous bid protests 

involving agencies that are subject to the Foreign Assistance Act, including OPIC, 

without impairing their authority to conduct foreign aid.9

We also find that OPIC’s authority to obligate fees under section 237(d)(3) of the 

Foreign Assistance Act “notwithstanding any other provision of law” does not 

exempt the agency from CICA. That provision provides: 

Fees paid for the project-specific transaction costs and other direct 

costs associated with services provided to specific investors or 

potential investors pursuant to section 2194 of this title (other than 

those covered in paragraph (2)), including financing, insurance, 

reinsurance, missions, seminars, conferences, and other 

preinvestment services, shall be available for obligation for the 

purposes for which they were collected, notwithstanding any other 

provision of law. 

See 22 U.S.C. § 2197(d)(3) (emphasis added). 

The Supreme Court has noted that “in construing statutes, the use of such a 

‘notwithstanding’ clause clearly signals the drafter’s intention that the provisions of 

the ‘notwithstanding’ section override conflicting provisions of any other section.” 

See Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (emphasis added). That 

is, a “phrase ‘notwithstanding any other provision of law’ connotes a legislative 

intent to displace any other provision of law that is contrary to the Ac[t].” Shoshone 

Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339, 1346 

(Fed. Cir. 2004) (emphasis added). Thus, a “notwithstanding” clause may not be 

read to supersede all other laws that are not directly related to the object to which a 

statute seeks to address, but must be read together with an agency’s specific 

statutory tasks and interpreted to mean that the clause only supersedes or trumps 

 

9

 See, e.g., SKJ & Assoc., Inc., B-294219, Aug. 13, 2004, 2004 CPD ¶ 154 (cancellation 

of RFQ issued by Trade and Development Agency (TDA) under FAR subpart 12.6 for 

grant administration services for development promotion in developing and middleincome countries); Ritchie Sawyer Corp., B-281241.2, Jan. 25, 1999, 99-1 CPD ¶ 21 

(TDA contract award for program audit of central African grant); Mary Jo 

McDonough, B-270530, B-270530.2, Mar. 13, 1996, 96-1 CPD ¶ 154 (award of personal 

services contract under 22 U.S.C. § 2396 by Agency for International Development 

(AID)); Cosmos Eng’rs, Inc., B-220000.3, Feb. 24, 1986, 86-1 CPD ¶ 186 (contract 

award by AID Regional Economic Development Services financed by loan to 

government of Liberia). 

Page 7 B-402377 
other statutes that are inconsistent. See Jacobs COGEMA, LLC, supra, at 7; State 

Dept. Assistance for Lebanon, B-303268, Jan. 3, 2005, at 3. Such an interpretation 

honors the long-standing principle of statutory construction that, if possible, statutes 

should be construed harmoniously, so as to give effect to both. See, e.g., Posadas v. 

Nat’l City Bank, 296 U.S. 497, 503 (1936); Negonsott v. Samuels, 933 F.2d 818, 819 

(10th Cir. 1991). 

Here, 22 U.S.C. § 2197(d)(3) does not relate to CICA or FPASA. Rather, the provision 

relates specifically to fees that OPIC collects for costs incurred for investment and 

pre-investment services--such as the conference services solicited here--and provides 

that those fees shall be available for obligation for the purposes for which they were 

collected, notwithstanding any other provision of law. Namely, fees collected under 

section 237(d)(3) for the costs of these investment services must be used for those 

costs, notwithstanding section 236, 22 U.S.C. § 2196(a), which otherwise grants OPIC 

broad authority to use revenues and income earned by the corporation, from 

whatever source derived, to carry out the agency’s purposes. Compare 22 U.S.C. 

§ 2197(d)(3) with 22 U.S.C. § 2196(a). Furthermore, to the extent that a 

“notwithstanding” clause may override inconsistent, conflicting provisions of law, 

the agency has not shown that CICA or the FAR is inconsistent with OPIC’s 

authorities; as we discuss above, the agency actually applied FAR provisions in 

conducting this procurement. See also Agency for Int’l Dev.--Auth. to Pay Claims 

under Sec. 636(b) of the Foreign Assistance Act of 1961, B-246211, B-246211.2, 

Dec. 7, 1992 at 5 (“without regard to” clause in 22 U.S.C. § 2396(b) does not authorize 

AID to exceed limitations of Claims Act); Computer Support Sys., Inc., B-239034, 

Aug. 2, 1990, 90-2 CPD ¶ 94 at 3-4 (“notwithstanding” clause does not exempt Federal 

Reserve from broad definition of federal agencies subject to CICA). 

For these same reasons, OPIC is not exempt from CICA under the “without regard 

to” clause of section 636(b) of the Foreign Assistance Act. See 22 U.S.C. § 2396(b). 

Section 636(b) provides, in relevant part, that “[f]unds made available for the 

purposes of [the Foreign Assistance Act] may be used for . . . expenditures outside 

the United States for the procurement of supplies and services . . . without regard to 

such laws and regulations governing the obligation and expenditure of fund[s].” 

22 U.S.C. § 2396(b) (emphasis added). By its plain terms, the clause refers narrowly 

to federal fiscal laws, such as the Anti-Deficiency Act, 31 U.S.C. §§ 1341-42, 1517, that 

govern the obligation and expenditure of agency funds; the clause does not refer to, 

or expressly exempt OPIC from, CICA. See, e.g., U.S. Postal Serv. Office of Inspector 

Gen.--Implementation of Postal Accountability & Enhancement Act, Sec. 603, Pt. 1, 

B-317022, Sept. 25, 2008, at 4, 6 (39 U.S.C. § 410(a), which provides that no federal 

law dealing with budgets or funds shall apply to USPS, exempts the agency from the 

Anti-Deficiency Act and Miscellaneous Receipts Act); cf. TLM Marine, Inc., B-226968, 

July 29, 1987, 87-2 CPD ¶ 111 at 3 (“notwithstanding any other provision of law 

relating to the acquisition, handling, or disposal of property by the United States” 

clause in Merchant Marine Act, 46 U.S.C. § 1275(c) (1982), exempts Maritime 

Administration from CICA). Moreover, OPIC does not argue, and the record does 

Page 8 B-402377 
not otherwise show, that the procurement here was for “expenditures outside the 

United States.” 

In so far as the agency argues that section 239(c)(1) of the Foreign Assistance Act, 22 

U.S.C. § 2199(c)(1), exempts the agency from GCCA and thereby exempts it from 

CICA under the definition of “executive agency” at 41 U.S.C. § 403(1)(D), the 

definitions at section 403 apply only to the Office of Federal Procurement Policy Act 

(OFPPA), as amended (41 U.S.C. §§ 403-440), not to CICA. 41 U.S.C. § 403; see

Rapides Reg’l Med. Ctr. v. Sec’y, Dept. of Veterans’ Affairs, 974 F.2d 565, 573 (5th Cir. 

1992) (section 403 definitions apply exclusively to OFPPA, not to CICA). 

With respect to the application of the FAR, we disagree that the acquisition here is 

funded with non-appropriated funds. The FAR applies to acquisitions, which are 

defined to be the acquiring by contract with appropriated funds of supplies or 

services. FAR §§ 1.104, 2.101(b)(2). Funds available to an agency are considered 

appropriated funds, regardless of their private source, where they are made available 

for collection and expenditure pursuant to specific statutory authority. International 

Line Builders, B-227811, Oct. 8, 1987, 87-2 CPD ¶ 345 at 2. In this regard, our Office 

has long held that where Congress has authorized the collection or receipt of funds 

by an agency, for example, by establishing a working capital or revolving fund, and 

has specified or limited the purposes of those funds, the authorization meets the 

constitutional requirement for an appropriation made by law and is a “continuing 

appropriation” regardless of the fund’s private sources. USA Fabrics, supra, at 2 n.1. 

To the extent that the agency relies on Core Concepts of Fla., Inc. v. United States, 

327 F.3d 1331 (Fed. Cir. 2003), for the proposition that OPIC’s funds are nonappropriated, the Federal Circuit court in that case limited the applicability of its 

“non-appropriated funds doctrine” to the determination of whether the Court of 

Federal Claims had jurisdiction of a contract appeal under the Tucker Act. Core 

Concepts at 1338; see USA Fabrics, supra, at 1 n.1. The court specifically 

acknowledged that the doctrine was not applicable to federal appropriations law or 

to GAO’s position on the appropriated status of revolving funds. Core Concepts

at 1338. 

Here, the funds available to OPIC are appropriated funds because the funds were 

made available for collection and expenditure pursuant to specific statutory 

authority. See 22 U.S.C. § 2197(d); see also Pub. L. No. 111-117, div. F, title VI, 123 

Stat. 3034, 3342 (Dec. 16, 2009) (fiscal year 2010 appropriations for OPIC noncredit 

revolving fund account and limitations on its availability for certain purposes); 41 

U.S.C. § 5a (as used in FPASA, “appropriation” must be construed as including funds 

available by legislation to wholly-owned government corporations); cf. 22 C.F.R. 

§ 712.100(a) (OPIC regulation implementing restriction on use of appropriated funds 

for lobbying with regard to OPIC contracts, grants, loans, or cooperative 

agreements). 

Page 9 B-402377 
Past Performance Evaluation 

The protester argues that the “award to MFMci is entirely irrational because it is not 

supported by relevant past performance and it relies upon . . . material 

misrepresentations made by MFMci with respect to the nature of its past 

performance experience.” Protest at 1. Specifically, the protester complains that 

MFMci was credited for past performance that was attributable to the protester and 

contends that “[s]ince [the awardee’s and protester’s] split from MFM Group, Inc., 

[the awardee] has not provided international conference planning services for any 

U.S. Government agency or entity . . . upon which OPIC could reasonably rely in 

making its award decision.”10 Id. at 4. The protester contends that the awardee’s 

past performance since the split is not relevant to this procurement. The protester 

also complains that the awardee “appropriated intellectual property” belonging to 

the protester, including its “contractual experience, approach and staff work.”11 Id. 

In this regard, the protester claims that the meeting planning operations division of 

the predecessor firm was sold to the protester, “including all U.S. Government 

meeting planning conducted by” the predecessor firm. Id.

The agency responds that it’s past performance evaluation judgments were based 

upon conferences and other events that took place after the firms split from the 

MFM Group. AR at 10. 

The evaluation of an offeror’s past performance is a matter within the discretion of 

the contracting agency since the agency is responsible for defining its needs and the 

best method for accommodating them, and we will not substitute our judgment for 

reasonably based past performance ratings. See Team BOS/Naples-Gemmo 

S.p.A./DelJen, B-298865.3, Dec. 28, 2007, 2008 CPD ¶ 11 at 8; Clean Harbors Envtl. 

Servs., Inc., B-296176.2, Dec. 9, 2005, 2005 CPD ¶ 222 at 3. Moreover, a protester’s 

mere disagreement with the agency’s judgment does not establish that an evaluation 

was unreasonable. UNICCO Gov’t Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD 

¶ 134 at 7. 

 

10 The protester complains that over half of the past performance identified in the 

awardee’s proposal is attributable to past performance by the predecessor company, 

MFM Group, to which (the protester argues) only the protester is entitled to 

reference. Comments at 4-5. 

11 The protester contends that two “contract personnel” identified in the awardee’s 

proposal are actually employees of the protester. Comments at 4. These two 

individuals were not identified as employees of the awardee, see AR, Tab D, at 27 

(MFMci proposal, contract personnel), and the protester does not contend that the 

awardee was not authorized to use these individuals’ names in its proposal. 

Page 10 B-402377 
Page 11 B-402377 

Here, we find that the agency’s past performance evaluation judgments are 

reasonable. The record shows that the past performance questionnaires submitted 

by the awardee’s clients describe nine international conferences that the awardee 

performed in 2009 (after the split from the MFM Group), and that those clients 

consistently rated the awardee’s past performance with the highest possible rating. 

See AR, Tab F-2, Awardee’s Past Performance Questionnaires. Several of the 

awardee’s clients made comments attesting to the awardee’s superior past 

performance, such as “[t]he best there is” and “highly recommended!”12 Although the 

protester generally questions the relevance of these questionnaires, the 

questionnaires described MFMci’s past performance as including logistics planning, 

meeting support, audio-visual and internet support for a conference, venue sourcing, 

and ground logistics and production. The protester does not explain why this work 

is not relevant here; the protester’s disagreement with the agency’s judgment does 

not establish that it is unreasonable.13

Finally, with regard to the protester’s complaint that the awardee’s alleged use of 

past performance history attributable to the protester, or its offer of individuals 

employed by the protester, constitutes a misappropriation of the protester’s 

intellectual property, such a complaint, as framed by the protester, concerns a 

private dispute between the parties, which is not for consideration by our Office. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel 

 

12 In contrast to the awardee’s superior past performance rating, OPIC found that the 

protester’s recent performance as the agency’s contractor demonstrated weaknesses 

in communicating with the client, flexibility, and meeting time frames. The protester 

has not challenged the agency’s evaluation of its own past performance. 

13 Although the awardee’s proposal identifies past performance that occurred before 

the firms’ split from MFM Group, we need not address MFMci’s arguments 

concerning this past performance, because OPIC’s evaluation of the awardee’s past 

performance was based upon that firm’s performance of work since the two firms’ 

split.