Past performance is an important part of the agency evaluation process—we’ve written about it many times before for a reason. Like other evaluation areas, agencies get a great deal of discretion in evaluating past performance. Perhaps a contractor thinks it has a good past performance record and wants the agency to consider it; perhaps the contractor doesn’t want the agency to ignore a poor past performance record of a competitor. How can a contractor tell when the agency made a reasonable decision not to consider some aspect of past performance? A recent COFC decision showed that the agency cannot ignore adverse past performance in some cases. COFC applied the “too close at hand” doctrine—which says agencies may be obligated to consider information it has during an evaluation, even if the offeror didn’t cite to it. Whether or not an agency’s failure to consider particular information is a violation of this rule or not is a fact-specific inquiry.

The Too Close at Hand Rule

In Chugach Logistics and Facility Services JV, LLC v. United States, 182 Fed. Cl. 794 (Aug. 17, 2026), the court overturned an award issued by the Navy to an 8(a) mentor-protégé joint venture (MPJV) when it determined that the Navy had arbitrarily failed to consider the awardee’s negative past performance.

The protester in this case, another 8(a) MPJV, argued that the Navy erred in its evaluation when it refused to consider the awardee’s negative past performance. Specifically, one of the venturers in the MPJV (King & George) was the incumbent on a contract for essentially the same services at the same location, and had received a “marginal” CPARs from the contracting officer. That CO was one of the evaluating officials on the procurement under protest, so the CO had first-hand knowledge of how King & George had performed. Despite this, the Navy did not consider that negative CPAR in its evaluation of the awardee, arguing that it was not required to under the terms of the solicitation.

The court said, “it is well-established that some information is simply ‘too close at hand’ to require offerors to shoulder the inequities that spring from an agency’s failure to obtain, and consider, the information. Regarding past performance evaluations, moreover, agencies are not restricted to references submitted by offerors and must draw upon internal information, even if not cited by the offeror.” Essentially, it would be unfair to offerors if an evaluating official, who has first-hand knowledge of a competitor’s performance, didn’t take that knowledge into account during evaluations.

There are four factors to establishing a violation of the rule, and each must be satisfied:

1. The agency has to have discretion to consider the information.
   • Here, the court stated there was “no indication that the universe of projects the agency could review was limited to those under [a different factor]. On the contrary, the phrases ‘all CPARS’ and ‘other than those submitted under Factor 1’” meant the Navy wasn’t restricted by the solicitation from considering negative CPARS, even if it wasn’t required to either.
2. The information has to be sufficiently relevant to the procurement.
   • The court emphasized that this relevancy isn’t defined by the solicitation—that would undermine the point of the rule. Rather, the question is more broadly “is this information relevant to the evaluation?” Here, it very much was—the Navy relied exclusively on King & George’s past performance to assign a high confidence rating to the awardee, so the fact that it had a negative past performance CPAR was directly related to the procurement.
3. The information actually has to be “close at hand.”
   • This is a fact-specific inquiry where the court has to decide whether the agency “possessed or had personal knowledge of the information.” The court pointed out this can “present close calls.” But here, “the information was not just close at hand—it was squarely in the Navy’s palm.” The official who assigned the marginal rating was also part of the evaluation team—so this was not a case where the agency would have to hunt for the information.
4. The agency has to have a “rational basis” for failing to consider the information.
   • Like most things in government contracting, the agency gets wide discretion to decide whether it makes sense to ignore information or not. As long as the agency documents its reason, and the court can follow its logic, that decision won’t be overturned. However, in this case, the Navy did not reference that decision at all, let alone why it was made. Put simply, “the Court cannot defer to an agency’s judgment where there is no evidence the agency exercised that judgment in the first place.”

Bottom Line

Whether this rule applies is very fact-specific. There are lots of areas where an agency gets deference—maybe the info isn’t relevant enough, or easy enough to find that a court will expect the agency to find it. However, if the agency fails to document its reasoning, there may well be a flaw in the evaluation. If you are a contractor who believes an agency improperly ignored some important information, reach out to federal contracting counsel (like us!) to figure out your options, including whether a protest is right for you. This decision also provides some guidance to contractors who have some negative CPARS. Do they ignore them or try to be proactive in explaining them to an agency.

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