Missed Deadlines and Misread Rules: GAO Denies Protest Despite Agency’s Faulty Past Performance Evaluation

In its July 3, 2025 decision in Jude & L Construction, LLC, the U.S. Government Accountability Office (GAO) addressed a protest challenging the Department of the Air Force’s past performance evaluation under a solicitation for IDIQ construction contracts at Prince Sultan Air Base in Saudi Arabia. Jude & L Construction (JLC), based in Katy, Texas, alleged the agency erred in excluding past performance references associated with its corporate affiliate and wrongfully assigned a “neutral confidence” rating, effectively eliminating the company from award consideration. Though GAO agreed that the Air Force misread the solicitation, it ultimately denied the protest due to the protester’s own procedural misstep.

JLC submitted three past performance references—two from a corporate affiliate and one from a joint venture between JLC and the affiliate. According to JLC, its affiliate would play a significant role in contract performance, including design management, finance, and logistics support. However, the agency concluded that none of these references qualified. It deemed the joint venture’s project too old and interpreted the affiliate’s references as mere subcontractor experience, which the RFP explicitly prohibited from consideration.

GAO disagreed with the Air Force’s reading. It found the solicitation’s language unambiguous: while past performance had to be from a prime contractor role, the RFP expressly allowed consideration of affiliate performance when the affiliate was shown to have “direct and meaningful involvement” in the proposed contract. JLC had made this connection clear in its proposal. GAO criticized the agency for effectively rewriting the solicitation by insisting that JLC had to show it had personally contributed to its affiliate’s past performance “beyond a subcontracting role”—a requirement nowhere found in the RFP.

Yet, despite this victory on interpretation, JLC’s protest fell short for a more basic reason: none of the past performance questionnaires (PPQs) associated with its references were submitted by the agency’s stated deadline. Although JLC argued that the contracting officer had assured them, via email, that the agency would reach out to points of contact (POCs) directly if PPQs were missing, GAO found that such an email—because it conflicted with the solicitation’s written instructions—created a “patent ambiguity” that JLC was required to protest before the deadline for proposals. Because JLC failed to do so, its argument was untimely.

Furthermore, GAO reaffirmed its position that when an RFP unambiguously places responsibility for PPQ submission on the offeror, an agency is under no obligation to chase down references. The RFP here clearly stated that it was the offeror’s sole responsibility to ensure that PPQs were completed and received by the agency by the specified date. Without these completed PPQs, the Air Force lacked the quality assessments needed to assign JLC anything other than a “neutral confidence” rating—regardless of whose performance was being considered.

In the end, the GAO concluded that although the Air Force erred in disregarding JLC’s affiliate past performance, that error did not result in “competitive prejudice.” Because JLC failed to secure timely PPQ submissions, the neutral confidence rating was warranted, and JLC would not have been eligible for award even if its affiliate’s references had been evaluated.

The decision serves as a cautionary tale: even when a contractor wins the legal argument, procedural missteps—like missed deadlines—can still cost them the contract.

Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. While efforts have been made to ensure accuracy, readers should consult the original GAO decision and legal counsel for formal guidance. The views expressed are summaries of the published GAO opinion and credit is due to the authors of the decision.

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