As in every litigation case, facts drive almost everything. Bid protests based on contractor past performance have less than 25% chance of winning. See Wifcon.
As in every bid protest case, the legal attack starts with the solicitation requirements for your past performance evaluation. A majority of solicitations assess the relative importance of the evaluation factors. For example, an RFP may state that technical capability factor is more important than the past performance
For example, an RFP may state that the technical capability factor is more important than the past performance factor and that the technical capability and past performance factors, combined, were approximately equal in importance to price.
Past Performance Evaluations in LPTA Contracts
The key here is to read the exact language of the solicitation. Generally, the evaluation of past performance in LPTA contracts has a unique approach. Some solicitations do not expand upon the importance of how past performance plays out during the source selection process while others do.
Past performance evaluations in LPTA contracts generally would be wrapped into the overall technical acceptability evaluation. If not, the solicitation must so state. If there are questions and answers in the solicitation process, then you should take advantage of them to clarify any vague requirements. The bottom line is that if there is a problem with how the solicitation is written, you must meet the bid protest deadline.
Agency Mistakes When it Comes to Contractor Past Performance Evaluation Criteria
When challenging how the agency evaluated your past performance, your best approach is to compare such an evaluation with the expressed terms of the solicitation. For a GAO or Court of Federal Claims bid protest to be successful, the record must show that the agency either failed to evaluate, or otherwise unreasonably considered, the relevance of the submitted past performance in accordance with the
solicitation’s stated evaluation criteria.
- There is a hidden formula for considering the relevancy of past performance.
- Size, Scope, and complexity require a comparison to the value of the solicited requirement.
- The agency must reasonably explain why comparatively small-value examples provide a basis to justify a high past performance rating. See Health Net Fed. Servs., LLC, B-401652.3, B-401652.5, Nov. 4, 2009, 2009 CPD ¶ 220 at 16 (sustaining a protest where an
agency assigned the highest possible past performance rating based on three contracts that were less than 3 percent, and one contract equaling 11 percent, of the magnitude of the requirements contemplated by the solicitation)
- Prior contracts no larger than 4 percent of the solicitation’s requirements were are similar in size)\
When addressing past performance evaluations in a bid protest, if the contracting agency fails to document its evaluation, it bears the risk that there may not be an adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for its source selection decision. Navistar Def., LLC; BAE Sys., Tactical Vehicle Sys. LP, B-401865 et al., Dec. 14, 2009, 2009 CPD ¶ 258 at 13.
What is the primary contractor past performance evaluation criteria?
- The referenced project should be relevant.
- Relevancy generally means similar in size, scope, and complexity when compared to the project up for bid.
- The underlying method of attack is to challenge the awardee’s project relevancy performance appraisal and evaluation by the agency.
When the solicitation requires you to actually submit your relevant contracts for a specified time period and includes a requirement for total contract value, make sure that you include option years and if possible a breakdown of pricing for those option years (it is important to follow exactly what the solicitation calls for.)
Solicitation evaluation measurements: The next piece of information that should be readily available is the overall past performance confidence assessment rating categories used by the agency. Note that the agency does not have to publicize its past performance evaluation guide.
Most common are substantial confidence, satisfactory confidence, limited confidence, or no confidence. For each group, the agency usually provides a definition. This is one of the most important pieces of information when filing government contract protests.
- Most government contractors already know that the best way to win a bid protest is to show that how the agency failed to follow the stated contractor past performance evaluation criteria in the solicitation. With that said, past performance bid protests are some of the most difficult to win.
How Did the Contracting Agency Act Unreasonably?
However, the critical attack in a bid protest based upon an allegation of flawed past performance evaluations is to thoroughly explain how the agency failed or acted unreasonably. A government contract protest lawyer should be comparing the agency’s past performance evaluation with the size, scope, and complexity of the referred project. Then he or she should look at the awardee’s overall contract cost for each project.
- A vast difference between the size of the referred project(s) to the instant project could open the doors to a successful protest.
The source selection team will have a difficult time explaining the high score to the awardee given the diminutive size and scope of the referred project. Keep in mind that as the protestor, your referred projects must be larger. In the March 2017 case of XPO Logistics Worldwide Government Services, LLC, the protestor successfully made such an argument to GAO.
- The agency’s source selection mistake was first taking the awardee’s base year pricing instead of considering the escalating option year prices to justify why its lower price.
- Second, GAO found that the relatively low‑value base period of the contract as awarded to the awardee unreasonably distorted the comparison of the magnitude of its past efforts to the magnitude of the solicitation.
If the agency gives you a lower past performance evaluations rating, consider the above approaches as a baseline for filing your bid protest.