As in every litigation case, facts drive almost everything. Bid protest based on contractor past performance evaluations have less than 25% chance of winning. See Wifcon.
As in every bid protest case, the legal attack starts with the solicitation requirements for past performance evaluation. A majority 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 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.
What are 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.
However, the critical attack in a bid protest based upon an allegation of a 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 protest.