A common question arises when government contractors file a bid protest that challenges the agency’s past performance evaluation. Can the agency still give the awardee a higher performance rating when its CPAR ratings show that it had an unsatisfactory rating on one of its projects?
It depends upon the documentation of the agency during the proposal evaluation. For example, an agency could decide that the CPAR report showed that the specific contract in question was not relevant to the current procurement. GAO will not second guess the agency’s decision unless the protestor can show that the decision was unreasonable.
Detailed facts required: When structuring a bid protest based upon an unreasonable past performance evaluation, you have to show detailed facts as to what the source selection personnel did wrong. Sometimes, contractors state a general conclusion in the protest letter that the agency’s past performance rating was unfair but without showing how it violates procure laws or is somehow unreasonable.
Agency will attempt to dismiss the protest: When the protestor makes a general statement without supporting facts or a legal basis to back up the conclusion, the contracting Agency will be quick to ask GAO to dismiss the protest. GAO has a long-standing rule that “a protester’s disagreement with the agency’s judgment does not establish that the evaluation was unreasonable. WAI-Stoller Servs., LLC; Portage, Inc., B-408248.13 et al., May 29, 2015, 2015 CPD ¶ 201 at 7.
How does GAO evaluate the agency’s past performance evaluation? GAO will only look to see the Agency’s performance rating was reasonable and consistent with the solicitation’s evaluation criteria. See also TriWest Healthcare Alliance Corp., B-401652.12, B-401652.13, July 2, 2012, 2012 CPD ¶ 191 at 24.
Allowances For Agency When Conducting Your Past Performance Evaluation
The federal government has wide discretion when making its past performance evaluation. For example, the agency can reflect the totality of an offeror’s prior contract performance, and an agency may reasonably assign a satisfactory rating to an offeror despite the fact that portions of its prior performance have been unsatisfactory. See Ball Aerospace & Technologies Corp., B-411359, B-411359.2, July 16, 2015, 2015 CPD ¶ 219.
If the agency’s contemporaneous evaluation record shows that it was aware of an incumbent’s PPIRS assessment report was unsatisfactory because of certain performance problems, the Agency can still award the contract to that company providing that the decision was reasonable.
However, if there is evidence that the agency treated your proposal which also had an unsatisfactory past performance rating differently, then there might be grounds to win a protest.
Note: If the Agency’s record is not documented, GAO will more than likely sustain the bid protest. See West Coast General Corp., B-411916.2, Dec. 14, 2015, 2015 CPD ¶ 392 at 9.
What is Relevant Past Performance? Definition and Meaning
Most government solicitations provide that the agency can consider any relevant information, regardless of its source, and is not limited to considering only the information provided within the “four corners” of an offeror’s proposal when evaluating past performance. See Al Raha Grp. for Tech. Servs., Inc., supra at 10 (citing FAR 15.306(a)(2)(ii));
Tip: A contractor should be well aware that the government may find other information besides what is submitted in the proposal. If you are aware of other projects within the performance period and have a negative past performance evaluation rating, you may want to explain it away in the proposal before the agency finds the information on its own. You might have a leg to stand on if the Agency did not consider your input during its past performance evaluation.
- An agency can obtain and consider information from other sources.
- The information sought out still must meet the solicitation’s recency requirements
For additional questions of representation in a bid protest, call Watson & Associates, LLC at 1-866-601-5518.