Adverse Contractor Past Performance Evaluation in GAO Bid Protest

Adverse contractor past performance evaluation in a GAO bid protest is a common problem for bidders. Sometimes there is a question about how the government contracting office evaluated your past performance and whether it complied with the stated evaluation criteria.

There are a few things to keep in mind:

• First, although you have an opportunity to choose previous projects for your bid, the Agency always has the option to look at other sources for past performance information.
• Second, does the Agency always have to give you the opportunity to respond to adverse contractor past performance ratings? The answer is not always.

Does FAR Apply to All Procurements?

You always want to check to see whether the FAR applies. Not all agencies use the FAR in their bidding process or when reviewing an adverse contractor past performance evaluation. However, if the FAR does not apply, a GAO bid protest would only inquire into whether the actions taken by an agency were reasonable. See more information about agency past performance evaluation confidence ratings

Opportunity to Respond to Adverse Contractor Past Performance Evaluation

With regard to acquisitions governed by FAR part 15, GAO has recognized that where an offeror was previously provided an opportunity to respond to an adverse contractor past performance evaluation during its performance of the affected contract, the agency does not need to provide another opportunity to respond during discussions.

Meanwhile, FAR 15.306 (d)(3) requires meaningful discussions about “adverse past performance information to which the offeror has not yet had an opportunity to respond.”

• The issue becomes whether you had a previous opportunity to respond to adverse contractor past performance.
• A previous opportunity could mean during the actual evaluation period in CPARS or some other forum.

 See helpful information about the CEO’s decision to file a government contract protest and challenging CPARS past performance evaluation ratings.

Agency Rating Methodology For GAO Protests

When it comes to an adverse contractor past performance evaluation in GAO bid protest, Agencies need not disclose evaluation standards or guidelines for rating proposal features as more desirable or less desirable because agencies are not required to inform offerors of their specific rating method.

However, some level of fairness and reasonableness does come into play. The particular method of past performance evaluation scores used for award must provide a rational basis for source selection and be consistent with the evaluation criteria stated in the solicitation. See information about neutral past performance ratings and evaluating subcontractor past performance.

How to Address Adverse Contractor Past Performance Evaluations 

As stated earlier, Agencies should only give you a chance to respond to adverse contractor past performance evaluations when you never had that chance before. If you suspect there is a chance  the Agency may find adverse information, you can either:

• Discuss it in your proposal, or
• Consider using a teaming partner or subcontractor to offset any adverse evaluations.
• During actual contract performance, always send written comments to the agency as to why you disagree with the evaluation given.

 For further guidance or help with adverse contractor past performance evaluation in a bid protest, call our GAO bid protest lawyers at 1-866-601-5518.