GAO: Past Performance Evaluation Must Heed Solicitation’s Definitions

The analysis of an offeror’s past performance is sometimes a crucial part of an agency’s evaluation of proposals. And an agency’s evaluation of past performance is ordinarily a matter of agency discretion.

Though broad, this discretion is not unlimited. An agency’s past performance evaluation must be consistent with the solicitation’s evaluation criteria. GAO recently reaffirmed this rule, by sustaining a protest challenging an agency’s departure from its own definition of relevant past performance.

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Court: Past Performance Evaluations Must Be Adequately Supported

Past performance evaluations are a vital part of many federal procurements. Generally, the evaluation of an offeror’s past performance is a matter within the discretion of the contracting agency. But if an agency fails to adequately support its past performance evaluation, its findings cannot be upheld.

The United States Court of Federal Claims recently applied this rule, when it sustained a protest to an agency’s past performance evaluation because the evaluation failed to address the stated evaluation factors. In doing so, the Court provided guidance to both offerors and agencies as to a proper past performance evaluation.

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GAO: Agency Need Not Raise Offeror’s High Price In Discussions

When an agency decides to hold discussions with offerors, must it discuss with an offeror the price proposed for the contract? Not unless that offeror’s proposed price is so high as to be unreasonable.

As the GAO held in a recent bid protest decision, unless an offeror’s price is so high as to make its proposal unacceptable, the offeror is not entitled to be informed during discussions that its price is too high–even if the price is significantly higher than competitors.

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Sex, Lies, & Bid Protests: Adultery-Based Challenge Fails at GAO

An alleged adulterous relationship between a Navy program manager and a contractor support employee did not provide a basis to challenge the Navy’s award to a different contractor.

The GAO’s recent decision in Harris IT Services Corporation, B-408546.2, B-408546.3 (Oct. 31, 2013) involved more salacious allegations  than one typically encounters in a bid protest case, but the GAO’s ruling was no surprise: after all, the awardee was not the company employing the allegedly unfaithful employee.

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Unbalanced Pricing: Agency Properly Excluded Contractor, Says GAO

Unbalanced pricing can justify the exclusion of a contractor’s proposal, even if the contractor alleges that the pricing represents its actual cost structure.

As demonstrated in a recent GAO bid protest decision, an agency is justified in rejecting a proposal on the basis of unbalanced pricing when the agency reasonably concludes that the unbalanced pricing poses an unacceptable risk to the government.

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Small Business Outscored By Large Company On Small Business Participation Factor

It sounds like a tale from Bizarro World: under a recent Department of Homeland Security solicitation, a small business received a “Neutral” score for the small business participation factor, while its large competitor was awarded a “Good” score for the same factor.

One might think that the GAO would sustain a bid protest, especially because the small business in question planned to self-perform nearly two-thirds of the contract work.  Think again.  The GAO denied the protest, holding that under the solicitation, offerors could only receive small business participation credit for subcontracting to small businesses, not for self-performing at the prime contract level.

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Price Realism: Agency Improperly Used Unacceptable Proposals for Comparison

Earlier this week, the International Cycling Union announced that it would strip Lance Armstrong of his seven Tour de France titles, stating that overwhelming evidence existed that Armstrong had won those titles by doping.  For cyclists who play by the rules, it is only fair that they not be forced to chase Armstrong’s Tour record, which he apparently achieved in an unacceptable way (and you can count me among those who think Roger Maris and Hank Aaron have pretty strong claims to baseball’s single-season and career home run marks, too).

When it comes to sporting records, comparing a clean athlete to a cheater seems unfair.  Similarly, in the government contracting world, using unacceptable proposals as a basis of comparison for other proposals’ price realism is improper, according to a recent GAO bid protest decision.  In GAO Protest of Lifecycle Construction Services, LLC, B-406907 (Sept. 27, 2012), the GAO sustained the protest because of significant errors in the agency’s evaluation of the protester’s price realism–including comparing that price to the prices of three unreasonably high-priced proposals.

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