One of my major concerns with the draft solicitation for the CIO-SP4 GWAC was the limited nature of the past performance NITAAC intended to consider. Under the draft RFP, NITAAC would not have considered the past performance of subcontractors–something I believed violated 13 C.F.R. 125.2(g) in certain cases, and was contrary to the guidance of FAR 15.305(a)(2)(iii), which says that agencies “should” consider the past performance of “subcontractors that will perform major or critical aspects of the requirement.”
The good news is that the final CIO-SP4 RFP fixes this problem. That’s a relief for a lot of potential offerors. But now I’m concerned that NITAAC went too far in the other direction!
Section M.4.3. of the final CIO-SP4 RFP states:
The government consider and evaluate the past performance experience of affiliates, members of the offeror’s 9.601(1) CTA (if applicable), subcontractors of the prime’s 9.601(2) CTA, members of the offeror’s JV (if applicable), and all members of the offeror’s mentor protégé arrangement (if applicable).
Other portions of the final CIO-SP4 RFP, such as L.5.7, make similar statements. This is a broad review and solves my concern about subcontractors. So what’s my worry?
Affiliates, of course, come in many flavors. They might be parent/subsidiary companies, sister companies, or two companies owned by spouses. Heck, in one case, affiliation was based on the fact that an individual owned one share of a company–out of 120!
Needless to say, just because an offeror has an affiliate does not necessarily mean that the affiliate’s past performance has any logical relationship to how well the offeror will perform on the contract it is bidding–which, of course, is the entire point of submitting past performance.
You don’t have to take my word for it. In a 2017 case that we discussed here, GAO explained that it is inappropriate for an agency to consider the past performance of an affiliate without evidence that the affiliate will have a meaningful role in the procurement at issue. GAO said:
[w]here an agency observes apparent affiliation between companies but lacks evidence establishing the nature of the relationship in the procurement at issue, the potential for variations in the extent and nature of the relationship between two affiliated companies means that it is not reasonable for that agency simply to infer that the relationship will affect contract performance, or even to accept an offeror’s general representation that the performance of an affiliated company–positive or negative–should be attributed to that offeror. Before the agency can properly attribute the past performance of an affiliate to an offeror, it generally must have a factual basis showing the planned relationship between the companies on the contract at issue. Where, as here, the record before the agency does not indicate the involvement of the affiliate in performance of the contract, the agency cannot simply attribute the affiliate’s past performance to the offeror.
I do not see anything in the final CIO-SP4 RFP requiring offerors to show the “planned relationship between the companies on the contract at issue,” that is, on CIO-SP4. Instead, at least as I read it, it seems that NITAAC intends to consider the past performance and experience of affiliates based merely on the affiliation itself (plus, of course, a showing that the affiliate was involved in the submitted past performance project).
If this is NITAAC’s intent, I think NITAAC has gone too far. In my view (and, I think, GAO’s), a CIO-SP4 bidder shouldn’t be able to take advantage of an affiliate’s past performance and experience even if the affiliate won’t be meaningfully involved in CIO-SP4.
I am curious to see if this issue will get raised in the upcoming Q&As. Stay tuned!
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