GAO: Agency Need Not Consider Omitted Past Performance Information

An agency has no obligation to consider outside information bearing on an offeror’s past performance when the offeror fails to include information in its proposal.

In a recent bid protest decision, the GAO concluded that an agency had no obligation in its past performance evaluation or cost evaluation to import and consider favorable information the offeror could have, but did not include in its proposal.

The GAO’s decision in Bowhead Science and Technology, LLC, B-409871 (Aug. 26, 2014) involved a Department of the Navy request for proposals for program management support services for the V-22 Joint Program Office. The RFP was issued as a competitive set-aside under the SBA’s 8(a) program, to vendors under the Navy’s SeaPort-e multiple award IDIQ contract.

The solicitation provided for award on a best-value basis, considering three factors:  (1) technical, (2) past performance, and (3) cost/price. Under the past performance factor, the solicitation required offerors to identify “contracts whose performance is within five years of this proposal submission and contains efforts similar to those efforts.” In addition, the solicitation advised offerors that the agency “may use information other than that provided by the [o]fferors in their proposals” to evaluate past performance, and that the “Past Performance Information Reporting System” would be the primary method used to evaluate past performance information not provided by offerors.

The Navy received proposals from six offerors, including Bowhead Science and Technology, LLC, the incumbent contractor for the requirement. Imagine One Technology & Management, Ltd. also submitted a proposal.

The Navy established a competitive range of three offerors, including Bowhead and Imagine One.  After evaluating final proposals, the source selection authority concluded that Imagine One provided the best value, and the agency awarded Imagine One the task order.

Bowhead filed a GAO protest challenging the award decision. Bowhead alleged, in part, that the Navy’s evaluation of Bowhead’s past performance and cost proposal failed to consider “close at hand” information concerning the performance and rates of Bowhead’s corporate affiliates. Specifically, Bowhead alleged that the Navy’s evaluation should have accounted for “the totality of past performance of all of Bowhead’s corporate affiliates that have performed task orders under the SeaPort-e program since its inception.”  Bowhead acknowledged that not all of this information was included in its proposal, but argued that the Navy had actual knowledge of the performance of Bowhead’s corporate affiliates, and could not reasonably ignore that knowledge.

The GAO recognized that “in certain limited circumstances, an agency has an obligation (as opposed to the discretion) to consider ‘outside information’ bearing on the offeror’s past performance when it is ‘too close at hand’ to require offerors to shoulder the inequities that spring from an agency’s failure to obtain and consider the information.” However, these limited circumstances “do not include those where an offeror fails to include information in its proposal.”  Rather, the GAO wrote, when an offeror is in control of information in its proposal it exercises its own judgment as to the information it gives to the agency for consideration. Under such circumstances, offerors are responsible for submitting well-written proposals with adequately-detailed information for the agency’s review.

The GAO concluded that the record reflected Bowhead’s proposal provided past performance information only for Bowhead and Bowhead’s subcontractors; no information was provided for Bowhead’s corporate affiliates. The GAO stated “[t]o the extent Bowhead believed the past performance of its corporate affiliates was relevant to the past performance evaluation of Bowhead, Bowhead could have included that information in its proposal, but chose not to do so.” The GAO came to the same conclusion regarding Bowhead’s cost proposal. Accordingly, the agency’s evaluation was reasonable because it had no obligation to import and consider information the offeror could have, but did not include in its proposal. The GAO denied Bowhead’s protest.

The GAO has occasionally held that an agency erred by failing to consider information “too close at hand” to ignore–such as when an agency had actual knowledge of an incumbent’s poor performance, but ignored that performance in its evaluation.  The Bowhead decision illustrates an important limit on the “too close at hand” doctrine. Where, as in Bowhead, an offeror could have–but did not–include certain favorable past performance information in its proposal, the GAO will not find that the agency erred by failing to consider that information.

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