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.

FFL Pro v. United States, No. 15-1171C (2015) considered the evaluation of offers and best value determination by the U.S. Department of State’s Office of Antiterrorism Assistance (“ATA”) under a solicitation for the acquisition of overseas cyber security training services and supplies.

The solicitation set out five technical evaluation factors: Technical Compliance, Corporate Experience, Past Performance, Status of Property Management, and Price. Under the Past Performance factor, offerors were required to use references from project that involved relevant IT supplies and IT training services. Specifically, offerors were to describe three completed or on-going projects similar in size and complexity to the effort contemplated under the solicitation; two of these projects were to have been federal government contracts with overseas deployment training experience on cyber training. In the event an offeror did not have three examples of past performance, it could provide the contracting officer with additional documentation to substantiate project experience, so long as those projects were of a similar complexity to the solicitation. Additional requirements for past performance examples were set out as follows:

Demonstrate the ability to manage a multi-million dollar series of training in a global theatre. Many simultaneous iterations requiring expanded staffing resources to support deliveries. Demonstrated experience should include direct support of an international law enforcement training program. . . . Illustrate experience in the acquisition, configuration and international shipping of various computer related components. Demonstrate existing [Original Equipment Manufacturer] partnerships and the ability to forge necessary manufacturer relationships to ensure compliance with required licensing and End User License Agreements.

In its evaluation of proposals, ATA assigned VariQ Corporation an exceptional rating for its past performance, saying that based on VariQ’s stated past experience and the Past Performance Information Retrieval System reports presented, “there is a high expectation that [VariQ] will be able to perform or exceed the requirements of the statement of work successfully. It is unlikely that Government intervention will be needed in order to obtain the required services.”

Reaching its conclusion about VariQ’s past performance, ATA did not address whether VariQ’s past performance examples met the evaluation criteria set forth for the Past Performance factor. ATA made no finding, for example, that VariQ’s past performance were of a similar complexity to the work solicited or reflected the ability to successfully manage a effort as complex as that contemplated under the solicitation. Neither did the evaluation address whether VariQ’s past performance indicated its direct support of an international law enforcement training program, among other factors.

Despite these deficiencies in the evaluation record, ATA awarded the contract to VariQ.  FFL Pro LLC (“FFL”)—the incumbent contractor and disappointed bidder—filed a bid protest in the U.S Court of Federal Claims (after losing a protest before GAO), challenging ATA’s award decision. FFL’s protest challenged ATA’s best value determination, which it said was based in part on an unreasonable evaluation of VariQ’s past performance.

The Court agreed with FFL’s challenge to this evaluation. The assignment of this exceptional rating, the Court found, was based on “a vague assertion” that VariQ’s stated past experience indicated a high expectation of successful performance under the solicitation, the conclusion that VariQ’s experience was “centric” to the requirements of the solicitation, and VariQ’s “[e]xcellent reviews from multiple government and public entities.”

ATA’s failure to evaluate VariQ’s past performance under the stated evaluation criteria meant that its evaluation was inadequately supported and unreasonable. Instead, the Court found that ATA’s narrative summary “in support of its exception rating is little more than a copy-and-paste of the solicitation’s definition of ‘exceptional.’”

FFL Pro confirms that an agency must support its past performance evaluation findings with reference to the criteria set out in the solicitation. If it doesn’t, its evaluation cannot stand.

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