Ratings for a government contractor’s past performance can create grounds for a bid protest if you have a clear understand of the applicable laws. A commonly missed mistake in the agency’s past performance evaluation is when the bidder is not awarded solely for past performance reasons.
GAO decided this very issues in the bid protest of FitNet Purchasing Alliance, where the Department of the Interior (DOI), Bureau of Indian Affairs failed to properly evaluate the bidders past performance and also failed to send the matter to the Small Business Administration for a Certificate of Competency.
Past Performance Evaluation Alone Equals Nonresponsibility
If agency source selection decision fails to award the contract to a small business based solely on your past performance evaluation, it should be treated as a nonresponsibility determination, which must be referred to the SBA under its Certificate of Competency (COC) procedures.
Under the Small Business Act, agencies may not find a small business nonresponsible without referring the matter to the SBA, which has the ultimate authority to determine the responsibility of small businesses under its COC procedures. 15 U.S.C. § 637(b)(7); FAR subpart 19.6;
Past performance evaluation traditionally is considered a responsibility factor, that is, a matter relating to the offeror’s ability to perform the contract. See FAR § 9.104-1(c).
Traditional responsibility factors may be used as technical evaluation factors in a negotiated procurement, but only when a comparative evaluation of those areas is to be made.
- When the agencies compare all offerors’ past performance evaluation information, GAO will allow it.
GAO has often ruled in bid protest decisions that government contracting agencies cannot disqualify a small business under the guise of a relative assessment of responsibility-based technical evaluation factors in an attempt to avoid referral to the SBA. See more information about responsibility determinations.
Past Performance Evaluation of Other Bidders
As stated before, government contracting agencies should show and document a contractor’s past performance evaluation based upon a comparative evaluation in order to survive a bid protest.
- Agencies have to show past performance of competing proposals on a scale, relative to each other.
If you have learned that your past performance evaluation score was based on a pass /fail basis, call our GAO bid protest lawyers at 1-866-601-5518.