GAO recently sustained protest to an agency’s FAR Part 13 procurement that relied exclusively on CPARS-generated assessment chart rating percentages to evaluate vendors’ past performance. The agency’s goal was to “maximize competition” by considering all past work, rather than just relevant work.
While there is no FAR Part 13 regulatory prohibition on doing so, GAO found the CPARS charts incomplete and misleading and the evaluation inconsistent with the terms of the solicitation.
GAO’s decision in JMark Servs., Inc., B-417331.2 (July 22, 2019), involved an Air Force solicitation for instructor services at Goodfellow Air Force Base in Texas. The solicitation anticipated award of a fixed-price contract for commercial items, on a best-value tradeoff basis, under FAR Part 13’s simplified acquisition procedures. The solicitation called for the evaluation of vendors’ (1) technical approach (on a pass/fail basis), (2) past performance, and (3) price (utilizing a tradeoff analysis between the factors). And the agency reserved the right to select a higher-priced vendor who’s “better past performance history” merited the price premium.
The past performance evaluation criteria included FAR 52.212–1, requiring submission of “recent and relevant contracts for the same or similar items and other references,” but did not specify a particular format or define “recent” or “relevant.” It allowed customers to submit past performance questionnaires, and it said numerous sources of information “may” be considered.
All 16 quotations submitted were found technically acceptable and ranked by price. The awardee had the lowest price, and the protester had the third lowest.
The Air Force’s past performance evaluation relied exclusively on CPARS-generated “assessment charts” listing the percentage of vendors’ exceptional, very good, satisfactory, marginal, and unsatisfactory ratings in five areas (quality, schedule, cost control, management, and small business subcontracting). Based on this alone, the Air Force concluded that the awardee’s and protester’s past performance were “roughly equal,” and the contract went to the awardee based on lowest price.
Regarding past performance, the protester alleged the Air Force failed to consider the relevancy of its past performance information, ignoring the value of its extensive experience providing the “exact services” solicited and “glowing” reviews. Protester also argued that the awardee and its teaming partners possessed no similarly relevant experience.
The Air Force responded that it had decided “to conduct a past performance evaluation without considering relevancy in order to maximize competition” and that it “did not want to limit the potential pool of vendors by restricting the past performance standard to only consider work that was the same as this requirement.” The Air Force argued that the streamlined acquisition procedures of FAR Part 13 allowed it to “disregard the concept of relevancy when evaluating past performance,” because FAR Part 13 did not include the same regulatory requirement to consider relevancy found in FAR Part 15.
GAO established its standard for review as follows:
[A]n agency’s evaluation of vendors’ past performance, including the agency’s determination of the relevance and scope of a vendor’s performance history, is a matter of discretion, which we will not disturb unless the agency’s assessments are unreasonable or inconsistent with the solicitation criteria.
Here, the Air Force “relied exclusively upon the assessment chart generated by CPARS listing rating percentages” and did not consider the relevancy of the past performance information, any of the prior customers’ PPQs, or the vast majority of the CPARS reports themselves. GAO found this was not “a reasonable basis upon which to evaluate vendors’ past performance.” GAO noted that the CPARS assessment charts included ratings even though some evaluation areas were not rated and did not include ratings for two evaluation areas at all (including an area where protester had many exceptional ratings). Some reports even stated, “not to be used for Source Selection process.”
According to GAO, the evaluation was also inconsistent with the solicitation, which required submission of “recent and relevant contracts for the same or similar items” so the agency could “assess the likelihood that the vendor would successfully perform the services being procured.” GAO also noted that the PPQ attached to the solicitation said the “primary consideration in our selection process is the contractor’s past performance in similar efforts.”
GAO sustained on two bases, holding evaluation “irrational and inconsistent with the terms of the solicitation” and the data relied upon “incomplete and misleading.” GAO explained:
[T[he methodology employed by the agency here fails to take into account the entirety of a vendor’s ratings on prior efforts. In short, both the failure to exclude unrated aspects of a contractor’s performance and the failure to include all rated aspects of a contractor’s performance have the potential to distort the data and reduce its usefulness in performing the type of comparison the Air Force performed here.
And GAO concluded:
We sustain this protest ground because the Air Force had no rational basis to conclude that these vendors were equal under the past performance evaluation factor before conducting this simplified past performance/price tradeoff. Instead, the record shows that the agency based its past performance evaluation upon information that was insufficient to allow the agency to assess a vendor’s ability to successfully perform the services required here.
GAO recognized that FAR part 13, as opposed to FAR part 15, doesn’t require consideration of the “relevance” of past performance. But because the terms of the solicitation mentioned relevance, GAO found it unnecessary to reach a “definitive conclusion” on that issue.
This decision may be a breath of fresh air in the world of government contracting, where companies can see their myriad qualifications reduced to a number such as a CPARS rating. And it is another reminder that the terms of the solicitation are a key part of almost any bid protest.
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