Addressing Contractor Past Performance Evaluation Criteria in Bid Protests

A bad past performance evaluation rating can impact your overall chances of getting the ultimate award in government contracting.

Many contractors file a bid protest addressing how the government applied its contractor past performance evaluation criteria but fall short of a viable strategy for doing so.

The rationale for Performance Management Process: The government’s source selection team looks at your past performance simply as an indicator of any future risk of non-performance. When responding to the RFP, keep in mind that your past projects must be relevant in size, scope and complexity.

Without a clear understanding of past performance evaluation criteria as spelled out in the solicitation, and the critical legal issues that arise, prevailing in a bid protest can be problematic.

• You must carefully decide whether the projects submitted with your proposal met the agency’s relevancy standards for past performance.
• Most past performance evaluation scores suffer for a lack of relevancy.
• You should look for past performance that the agency disregarded.
• Did your proposal map each past performance project to the specific PWS requirements?

Before waiting until the bidding stage, make sure that your contractor past performance evaluation records are current and that there will be no surprises at the tender stage.  

Challenging or addressing the government’s past performance information evaluation criteria includes keeping track your performance on active or completed contracts.  

Solicitation’s past performance evaluation criteria do not have to include entire agency Source Selection Plan

 When deciding to challenge the agency’s contractor past performance evaluation scores, you should also know that an agency does not have to divulge its complete evaluation details or its entire source selection plan in the solicitation Performance Management Process. The actual evaluation guide is kept within the agency and not released to the public.

Instead, government contract law requires the agency only to give you enough information that allows you to compete fairly. See more information about agency evaluation confidence ratings.

What does the solicitation say? When challenging how the agency applied its past performance evaluation criteria against your proposal in a bid protest, you first want to see whether the agency reasonably described how it will conduct your past performance in the solicitation itself. If not, and the RFP language is vague, then consider filing a pre-award protest.

• Unless you see a need in the solicitation that makes the agency’s evaluation criteria requirement as unduly restrictive (you must file a GAO protest before bid submission).
• If you have copies of your CPARS evaluation reports, you should submit them as an attachment to your proposal (if allowed).

Tips for a Past Performance Evaluation Criteria Challenges in Bid Protests

When addressing contractor past performance evaluation criteria in GAO bid protests, the Agency has wide discretion in evaluating the relevance, scope, and complexity. This is evidenced in almost all agency evaluation guides.  Companies should be extremely careful with the legal and factual arguments they use.

Instead, when it comes to the Performance Management Process during litigation, contractors should be focusing on discussing how the agency did not follow the solicitation’s evaluation criteria. Information gathered in the debriefing is critical because until a lawyer gets to the agency record stage, the contractor must focus on having its bid protest withstand a motion to dismiss.

Litigating bid protest cases have various nuances when a protestor challenges the agency’s contractor evaluation score. If your legal argument simply is seen as disagreeing with the agency and no facts to support it, you are almost certain to lose the protest on that ground.

• You have to find a material mistake in the agency’s evaluation process.
• Failure to accomplish this will result in the agency alleging that you are merely disagreeing with them.
• This will more than likely get the protest dismissed.

See also information about contractor past performance of parent companies.

See How We Can Help You in Bid Protest Cases

For help with filing a GAO protest for improper contractor past performance evaluation criteria, call our bid protest lawyers at 1-866-601-5518.