Where a solicitation contemplated a “pass/fail” evaluation of past performance, and stated that an offeror without relevant past performance would nonetheless be rated “Acceptable,” there was no basis for the agency to compare the relative quality or amount of offerors’ past performance.
In a recent bid protest decision, the GAO held that the procuring agency properly refused to give the protester credit for its allegedly superior past performance because the pass/fail evaluation scheme did not allow for such a comparative evaluation.
The GAO’s decision in Invertix Corporation, B-411329.2 (July 8, 2015) involved an Army task order solicitation for operation and maintenance of the TROJAN Information Technology Network. The solicitation was issued to all holders of the Army INSCOM OMNIBUS III IDIQ multiple award contract.
The solicitation stated that offers would be evaluated on the basis of three factors: technical/management approach, past performance, and price. With regard to past performance, the solicitation called for the Army to evaluate the quality of each offeror’s recent and relevant past performance. The Army would then assign each offeror an “Acceptable” or “Unacceptable” past performance score. The solicitation stated that an offeror “without a record of recent and relevant past performance . . . will be identified as an unknown risk and therefore rated as ‘Acceptable’.”
After evaluating proposals, the agency awarded the task order to Information Management Group. Invertix Corporation, an unsuccessful competitor, subsequently filed a GAO bid protest. Invertix argued, in part, that the Army failed to consider the relative merits of its allegedly superior past performance in its award decision. Invertix contended that it had relevant past performance, but IMG did not. For this reason, Invertix argued, it was unreasonable for the Army to have evaluated the two companies as equal under the past performance factor.
The GAO noted that “the solicitation provided for the evaluation of past performance on an acceptable/unacceptable basis.” In that regard, “the solicitation provided for consideration of the quality of each offeror’s past performance for the purposes of rating the offeror’s past performance as acceptable or unacceptable, but did not provide for a comparison between offerors of the relative quality (or amount) of their past performance.” Further, an offeror without a recent or recent and relevant past performance was to receive an “Acceptable” rating. Under these circumstances, the GAO wrote, “there simply was no basis for the agency to give Invertix greater credit for its past performance.” The GAO denied Invertix’s protest.
The Invertix decision is a good reminder that a past performance evaluation is a function of the solicitation. Pass/fail past performance evaluations are not uncommon, and when an agency evaluates past performance on a pass/fail basis, it usually specifies that an offeror with no relevant past performance will be rated “Acceptable.” (This is in keeping with the requirement on neutral past performance scores under FAR 15.305(a)(2)). In such a case, although a highly-experienced offeror may find it unfair to be rated no better than an offeror with no experience at all, that is exactly what the solicitation requires.