Past Performance: Agency Reasonably Considered Quantity

An agency reasonably considered the quantity of offerors’ relevant past performance, even though the solicitation only stated that the relevance and quality of past performance would be considered.

In a recent bid protest decision, the GAO held that the quantity of an offeror’s past performance is logically encompassed within a review of the quality of past performance, and need not be separately identified as an area of evaluation.

The GAO’s decision in A&D General Contracting, Inc., B-409296 (Feb. 24, 2014) involved an Army Corps of Engineers solicitation for services to support military construction and repair projects.  The solicitation was issued as a small business set-aside.  Evaluation was to follow a two-phase process.  In the first phase, the Corps would consider past performance and technical approach.  The most highly rated proposals would be invited to participate in phase two.

The solicitation stated that offerors’ past performance would be evaluated for relevance and quality.  In this regard, offerors were instructed to provide up to five examples of their recent, relevant projects.  The solicitation stated that the Corps would assign an overall performance confidence assessment rating based on the overall relevance and quality of the offeror’s past performance.

A&D General Contracting, Inc. submitted a phase one proposal.  A&D identified three past performance projects for itself, and one for a joint venture in which A&D had participated.

In evaluating offerors’ past performance, the Corps reserved the highest past performance rating, “substantial confidence,” for proposals that provided at least four very relevant projects.  In A&D’s case, the Corps deemed the company’s three projects to be very relevant.  However, the Corps did not consider the fourth project because it had not been performed by A&D itself.  The Corps assigned A&D a “satisfactory confidence” past performance rating.  The Corps did not invite A&D to participate in phase two.

A&D filed a GAO bid protest.  A&D argued that the requirement that an offeror show four relevant projects to receive a substantial confidence assessment was an unstated evaluation criterion.  A&D pointed out that the solicitation only stated a maximum number of projects that could be provided, and did not identify any minimum.

The GAO wrote that as a general matter, “[a]n agency properly may take into account specific matters that are logically encompassed by, or related to, the stated evaluation criteria, even when they are not expressly identified as evaluation criteria.”  The GAO continued:

 [W]e do not agree with A&D that reserving the substantial confidence past performance rating for offers that identified four or more relevant projects reflected the use of an unstated evaluation criterion. Offerors were specifically informed that the agency’s past performance assessment would include consideration of the relevance of the firms’ identified projects. Moreover, the RFP explicitly stated that more relevant, recent projects would be considered a strong predictor of potential successful contract performance. Consideration of how many relevant projects were identified is logically encompassed within this stated review.

The GAO denied the protest.

Common sense suggests that an offeror with more relevant past performance projects is likelier to receive a higher past performance score than an offeror with fewer such projects.  The A&D General Contracting decision confirms that agencies can use this common sense measure of an offeror’s past performance–even where the solicitation does not specifically refer to quantity.

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