It seems like it should go without saying, but, just because an offeror with better evaluation ratings is preferred over one with neutral ratings does not mean the latter offeror was penalized for having neutral ratings, or that the neutral rating was a penalty. Nonetheless, in a recent bid protest a company creatively argued that it was penalized for having neutral ratings, and GAO unsurprisingly rejected it.Continue reading
In its past performance evaluation, an agency typically can consider the past performance of an offeror’s affiliate, so long as the offeror’s proposal demonstrates that the resources of the affiliate will affect contract performance.
But, as demonstrated in a recent GAO decision involving an Alaska Native Corporation subsidiary, ordinarily there is no requirement that an agency consider an affiliate’s past performance. In other words, unless the solicitation speaks to the issue, the agency’s consideration of an affiliate’s past performance is optional.
The 2017 National Defense Authorization Act gives certain small subcontractors a new tool to request past performance ratings from the government.
If the pilot program works as intended, it may ultimately improve those subcontractors’ competitiveness for prime contract bids, for which a documented history of past performance is often critical.
An agency acted improperly by excluding an offeror from the competitive range simply because the offeror received a “neutral” past performance score.
In a recent bid protest decision, the GAO wrote that the FAR precludes evaluating an offeror unfavorably because of a “neutral” or “unknown” past performance rating–and that the prohibition on unfavorable treatment prevents an agency from excluding an offeror from the competitive range on the basis of a neutral rating.
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.