GAO: Agencies May Consider Outside Past Performance Information

When an agency requests that offerors provide past performance references, the agency ordinarily is not precluded from considering outside past performance information.

In a recent bid protest decision, the GAO confirmed that an agency’s past performance evaluation may include information outside the past performance references submitted by the offeror–and the agency can use any negative past performance information to downgrade the offeror’s score.

The GAO’s decision in Fattani Offset Printers, B-415308 (Nov. 20, 2017) involved a USAID solicitation for printing services.  The solicitation called for award to be made on a “best value” basis.  In its evaluation, the agency was to consider several factors and subfactors, including past performance.  The solicitation asked offerors to provide at least five past performance references.

Fattani Offset Printers submitted a proposal.  Fattani’s proposal included five past performance reference letters.  All five reference letters gave Fattani positive reviews.

In its evaluation, USAID reviewed Fattani’s five letters, and contacted three of those references.  USAID also contacted references outside of the five Fattani had provided.  Some of those sources gave Fattani negative reviews.  Based partly on this concern, USAID gave Fattani only 5 out of a possible fifteen points for past performance.  USAID awarded the contract to a competitor at a higher price.

Fattani filed a GAO bid protest, raising several issues.  Among its allegations, Fattani contended that it was improper for the agency to contact additional past performance references because the solicitation did not expressly allow it.

The GAO disagreed.  “Contrary to Fattani’s view,” the GAO wrote, “an agency is generally not precluded from considering any relevant past performance information, regardless of its source.”  Accordingly, “the agency acted reasonably when it solicited additional past performance references beyond those listed in Fattani’s proposal, notwithstanding the fact that the solicitation did not specify that the agency could seek alternate past performance references.”

The GAO denied the protest.

When an agency asks for past performance references, it’s a great opportunity for an offeror to put its best foot forward.  But, as the Fattani Offset Printers case demonstrates, just because an agency requests references doesn’t mean that the agency can’t consider other past performance information.  If the agency wishes, it ordinarily can consider past performance information from other sources, so long as that information is relevant.