Past Performance Reference From Sister Company Was “Inherently Biased”

In its evaluation of past performance, an agency was permitted to disregard a past performance reference prepared by an offeror’s sister company–which also happened to be in line for a subcontracting role.

In a recent bid protest decision, the GAO upheld the agency’s determination that the sister company’s reference was “inherently biased” and need not be considered in the agency’s past performance evaluation.

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GAO: Offeror Improperly Excluded For “Neutral” Past Performance

An agency acted improperly by excluding an offeror from the competitive range simply because the offeror received a “neutral” past performance score.

In a recent bid protest decision, the GAO wrote that the FAR precludes evaluating an offeror unfavorably because of a “neutral” or “unknown” past performance rating–and that the prohibition on unfavorable treatment prevents an agency from excluding an offeror from the competitive range on the basis of a neutral rating.

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Insufficient Experience Information Sinks Offeror’s Proposal

An offeror’s failure to provide the type of past performance information mandated by a solicitation led to the offeror’s elimination from consideration for a  major GSA contract.

A recent GAO bid protest decision highlights the importance of fully reading and adhering to a solicitation’s requirements–including those involving the type of past performance or experience information required.

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Agency Need Not Put Dollar Value On “Relevant” Past Performance

An agency’s solicitation was not unreasonably vague where the solicitation defined “relevant” past performance to include projects of “a similar dollar value and contract type.”

In a recent bid protest decision, the U.S. Court of Federal Claims rejected a protester’s assertion that the solicitation was required to identify a specific dollar value associated with relevant past performance, finding that the solicitation’s phrasing was sufficient to allow offerors to compete intelligently.

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Two Isn’t Greater Than Five, GAO Reminds Agency

GAO sustained a protest recently where an agency had given higher past performance scores to a proposal with two relevant examples of past performance than a proposal with five relevant examples.

In Patricio Enterprises, Inc., B-412740 et al. (Comp. Gen. May 26, 2016), GAO said that an agency cannot mechanically apply an evaluation formula that produces an unreasonable result, such as allowing a proposal with fewer examples of relevant past performance to somehow earn a higher score than a proposal with more examples.

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GAO: Subcontract With Incumbent Didn’t Mandate High Past Performance Score

An offeror was not entitled to a high past performance score merely because it proposed a subcontracting relationship with the incumbent prime contractor.

In a recent bid protest decision, the GAO held that an agency had properly assigned the offeror a mere “Satisfactory” past performance score, despite a subcontracting relationship with the incumbent, because the prospective prime contractor had not sufficiently demonstrated its own relevant past performance.

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Pass/Fail Past Performance Evaluation: No Comparison Required

Where a solicitation contemplated a “pass/fail” evaluation of past performance, and stated that an offeror without relevant past performance would nonetheless be rated “Acceptable,” there was no basis for the agency to compare the relative quality or amount of offerors’ past performance.

In a recent bid protest decision, the GAO held that the procuring agency properly refused to give the protester credit for its allegedly superior past performance because the pass/fail evaluation scheme did not allow for such a comparative evaluation.

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