Past Performance: Agency Need Not Seek Updated Information At Source Selection

Once an agency has completed its past performance evaluation it is not required to seek updated past performance information from offerors.

As demonstrated in a recent GAO bid protest decision, an agency may rely on the most recent past performance information available at the time of evaluation, and is not required to seek more recent information at the time of the source selection.

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GAO: Agency Unreasonably Failed To Consider Incumbent Employees’ Salaries

A procuring agency unreasonably assigned an awardee an “Outstanding” score for its proposal to retain a large portion of the incumbent workforce, even though the awardee intended to offer the incumbent employees significantly lower salaries than the employees were earning on the incumbent contract.

In a recent bid protest decision, the GAO held that it was unreasonable for the agency to fail to consider whether the differences in compensation would affect the awardee’s ability to recruit and retain the incumbent workforce.

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GAO: Agency Need Not Raise High Costs In Discussions

In discussions, a procuring agency is not required to inform a prospective contractor that its costs are higher than those of its competitors, unless those costs are so high as to be unreasonable.

This important potential limitation on the scope of discussions was at issue in a recent GAO bid protest decision, in which the GAO held that an agency had not erred by failing to inform an offeror that its proposed costs were approximately $3 million higher than the awardee’s.

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GAO: Incumbent Contractor Not Entitled To Past Performance “Extra Credit”

An incumbent contractor was not entitled to receive a higher past performance score than its competitor simply by virtue of having performed the incumbent contract, according to the GAO.

In a recent bid protest decision, the GAO held that the procuring agency reasonably assigned the incumbent contractor the same past performance score as its competitor, and was not required to give the incumbent additional credit under the solicitation’s past performance evaluation factor.

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Ostensible Subcontractor Rule: Lessons Learned From SBA OHA

Avoiding affiliation under the SBA’s ostensible subcontractor rule can be difficult, especially since the ostensible subcontractor rule itself, 13 C.F.R. § 121.103(h)(4), does not provide many examples of the factors that may cause ostensible subcontractor affiliation.

A recent decision of the SBA Office of Hearings and Appeals, Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013), demonstrates that even when a proposed subcontractor will play a major role in the procurement, ostensible subcontractor affiliation may be avoided if the parties carefully structure their relationship.

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Court: Past Performance Evaluations of Technically Unacceptable Offerors Not Required

A procuring agency was not required to consider the past performance of an offeror judged to be technically unacceptable, according to a recent bid protest decision of the U.S. Court of Federal Claims.

In The Alamo Travel Group, LP v. The United States, No. 12-764C (2012), the Court rejected an incumbent contractor’s argument that an agency could not properly exclude the incumbent’s proposal without first considering its past performance–which, the incumbent argued, would demonstrate its ability to successfully perform the contract.

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SBA OHA: Northrop Grumman Entity Was An Ostensible Subcontractor

You would think a company as large as Northrop Grumman would know how to avoid ostensible subcontractor affiliation with a small prime, wouldn’t you?

You’d be wrong.  In a recent SBA Office of Hearings and Appeals decision, a Northrop Grumman entity entered into a teaming arrangement with a small prime, in which all three key employees identified in the proposal were employed by the large subcontractor.  The result: ostensible subcontractor affiliation.

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