Contractor past performance information evaluation can be a very highly debated issue is a GAO protest. However, the starting point for deciding whether or not to file a bid protest is the solicitation itself. Another question to ask is whether GAO will consider the agency’s application of your past performance information to be reasonable.
Evaluation of Contractor Past Performance Information Only Needs to be Reasonable
For example, if the contracting officer finds that your past performance was written by someone not familiar with your previous performance, GAO will allow the contracting officer to disregard it during the proposal evaluation. See WAI-Stoller Services, LCC; Navarro Research and Engineering, Inc., B-408248.6, B-408248.7, B-408248.8, B-408248.9, B-408248.10, B-408248.11, B-408248.12: May 22, 2014.
Simply because you submit past performance information does not mean that government contracting agencies are compelled to only rely on them.
Many solicitations forewarn you that the agency reserves the right to consider information from other sources such as PPIRS. Therefore, you must be familiar with past performance information evaluations previously posted by other agencies. If for some reason the contracting agency does not provide you with past performance reports, you should ask for them in writing. This is important because then you can exercise your right to challenge adverse performance information for your contract before it is too late.
What are the FAR thresholds for evaluating contractor performance on federal government contracts? How to Analyze Past Performance Information Evaluations Under Certain Thresholds? If you file a GAO protest that challenges how the agency evaluates relevant contractor past performance information, you must be extremely careful. For example, unless the solicitation expressly states that the contracting agency will not consider past performance information below a certain dollar threshold, it could very well determine that information below a certain dollar threshold was irrelevant. So long as the standard is applied equally among bidders, GAO might very well determine that the agency’s past performance evaluation was reasonable. See A&D General Contracting, Inc., B-409429: Apr 17, 2014)
Agencies Have Broad Discretion: Government contracting agencies have broad discretion when evaluating contractor past performance and to determine whether a particular contract is relevant to an evaluation of experience. See All Phase Envtl., Inc., B-292919 et al., Feb. 4, 2004, 2004 CPD ¶ 62 at 3.
Many times when your challenge the agency’s past performance evaluation, its contract lawyers will fire back and claim that you are merely disagreeing with the agency’s evaluation judgments. This can get your protest dismissed. See also information about past performance of parent companies.
Past Performance Information Known By The Agency
Oftentimes, an agency may know about contractor past performance information but no questionnaires were returned. What is the agency supposed to do? Can the source selection team disregard it. GAO tends to think not.
GAO has ruled that while there is no legal requirement that an agency consider all past performance references, some information is simply “too close at hand” to require offerors to shoulder the inequities that spring from an agency’s failure to obtain and consider information. See Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard Recovery Assistance, Joint Venture, B-401679.4 et al., Mar. 10, 2010, 2010 CPD ¶ 77 at 8; Int’l Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD ¶ 114 at 5.
A good example is when the same agency knows about your past performance information as the incumbent, it should not simply disregard the information if it is relevant for past performance evaluation purposes.
More specifically, GAO has held that an agency may not ignore contract performance by an offeror involving the same agency, the same services, and the same contracting officer, simply because an agency official fails to complete the necessary assessments or paperwork.
- If you are aware that there is negative past performance information that an agency may discover, bring in up in your proposal and give your side of the story.
- If the solicitation allows, tell the agency why you believe that your past record is relevant.
For help with PPIRS or past performance information in a bid protest, call Watson & Associates LLC at 1-866-601-5518.