In a recent decision, GAO said that it is not the contracting agency’s job to play investigator when it comes to publicly available negative past performance information. GAO acknowledged that there may be certain situations where the agency is required to consider such information that it is aware of during its evaluation. But according to GAO, this denied protest involved no such situation.
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Five Things You Should Know: Past Performance of Subcontractors, Joint Venture Partners, and Affiliates
The government’s hard shift away from lowest-price, technically acceptable evaluations has magnified the importance of past performance in many competitive acquisitions. For start-ups and other companies new to the federal marketplace, past performance requirements can present a significant barrier to success.
Oftentimes, companies with little or no past performance of their own can offer the past performance of another entity, such as a subcontractor or joint venture partner. But the rules surrounding the use of another entity’s past performance are often misunderstood–and recently, the rules have evolved quickly.
Here are five things you should know about using the past performance of a subcontractor, joint venture partner, or affiliate.
Continue readingPast Performance: Agency Can Consider Whether Prime & Subcontractor Have Worked Together Previously
An agency’s past performance evaluation may consider whether the prime contractor and a proposed subcontractor have worked together previously–even if the solicitation is silent about such consideration.
In a recent bid protest decision, the GAO held that there was nothing improper about an agency’s determination that the awardee’s prior working history with its subcontractor decreased performance risk.
Continue readingPast Performance Isn’t Always a Required Evaluation Factor, Says GAO
For companies trying to break into the government market for the first time, past performance can seem a bit like the old chicken-and-egg conundrum. Sometimes it can appear like a company can’t win a government contract without a strong record of past performance–but can’t build a past performance record without contracts! And with the government’s continued movement away from lowest-price, technically acceptable evaluations, past performance seems increasingly important.
But that doesn’t mean the government always has to consider past performance as an evaluation factor. Instead, as a recent GAO bid protest decision confirms, procuring agencies have broad discretion to omit past performance in appropriate cases.
Continue readingCongress Requires Large Primes to Provide Past Performance Reviews to Small Subcontractors–And Agencies to Consider Them
Breaking into the federal government contracting marketplace can be challenging, and many small businesses choose to start as subcontractors. But when those companies later bid on prime contracts, they sometimes find that they cannot get past performance reviews for their subcontract work, or that the government won’t consider such reviews.
Now, Congress has stepped in. A provision in the 2021 National Defense Authorization Act will require large prime contractors to provide small businesses with past performance reviews in certain cases, and will require agencies to consider them.
Continue readingCongress Says Small Businesses Without Past Performance Can Submit Joint Venture Experience Instead
Per the 2021 NDAA that was recently approved by Congress, small business offerors without their own past performance experience can now submit experience earned as part of a joint venture–and the procuring agency must consider it. This change will significantly benefit newer companies that do not yet have the individual experience to successfully compete for government contracts (that is, assuming the President signs the NDAA). It will also add an incentive for start-up companies to take advantage of SBA’s joint venture opportunities.
Continue readingSBA Requires Consideration of Some Subcontractors’ Capabilities, Experience & Past Performance
It’s commonly misunderstood that the FAR requires procuring agencies to consider the capabilities, past performance and experience of an offeror’s proposed subcontractors. Unfortunately, that’s just not true.
But now, as part of a comprehensive new final rule, the SBA will require agencies to consider the capabilities, past performance and experience of small business subcontractors in certain cases.
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