2020 NDAA to Add Cybersecurity Training, Additional SBA Annual Reporting, and Promote Workforce Development

The draft 2020 National Defense Authorization Act includes a number of provisions that will affect government contractors, especially small business contractors, including the three provisions featured in this post. Read on for how the 2020 draft NDAA impacts annual small business reporting by the SBA, cybersecurity training for small businesses, and evaluation of past performance to focus on workforce development.

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GAO: Past Performance Should Relate to Solicited Services

Past performance is an important evaluation factor in many solicitations. Essentially, it allows an agency to guess as to the likelihood of an offeror’s successful performance under a solicitation by looking to its history of performance on similar projects in the past.

GAO recently confirmed it is “axiomatic” that past performance examples should align with the solicitation’s requirements. If an offeror submits unrelated examples, it risks a downgraded past performance score.

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GAO Sustains Protest Where Agency Failed to Reasonably Evaluate Past Performance

GAO defers to agencies on many issues related to their procurements. But GAO will intervene when an agency says one thing, in a solicitation, but does another when it evaluates proposals. In other words, GAO will sustain protests when the agencies disregard their own evaluation criteria outlined in a solicitation.

Otherwise, the agency might–even inadvertently–evaluate proposals unequally–a situation that a just and fair procurement system must avoid. 

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GAO: Past Performance Evaluation Not Required In LPTA Set-Aside Competition

An agency was not required to evaluate past performance under an SDVOSB set-aside solicitation that contemplated making award to the lowest-price, technically-acceptable offeror.

According to a recent GAO bid protest decision, a past performance evaluation in the context of an LPTA set-aside is essentially duplicative of the agency’s evaluation of responsibility, meaning that a separate past performance evaluation isn’t necessary.

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GAO: Evaluation of Affiliate’s Past Performance is Optional

In its past performance evaluation, an agency typically can consider the past performance of an offeror’s affiliate, so long as the offeror’s proposal demonstrates that the resources of the affiliate will affect contract performance.

But, as demonstrated in a recent GAO decision involving an Alaska Native Corporation subsidiary, ordinarily there is no requirement that an agency consider an affiliate’s past performance.  In other words, unless the solicitation speaks to the issue, the agency’s consideration of an affiliate’s past performance is optional.

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PPQs Submitted Late? “No Problem,” Says GAO–At Least In One Case

While being fashionably late to a party may give the impression that one is a busy and popular person that was held up with other business, being fashionably late in federal contracting will typically have dire consequences.

However, a recent GAO bid protest decision demonstrates that when providing completed past performance questionnaires, or PPQs, being fashionably late may be acceptable – at least when the references were submitted directly by government officials, rather than the offeror.

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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.

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