Tag Archives: Past performance

GAO: Past Performance Evaluation Must Heed Solicitation’s Definitions

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The analysis of an offeror’s past performance is sometimes a crucial part of an agency’s evaluation of proposals. And an agency’s evaluation of past performance is ordinarily a matter of agency discretion.

Though broad, this discretion is not unlimited. An agency’s past performance evaluation must be consistent with the solicitation’s evaluation criteria. GAO recently reaffirmed this rule, by sustaining a protest challenging an agency’s departure from its own definition of relevant past performance.

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Agency Need Not Put Dollar Value On “Relevant” Past Performance

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An agency’s solicitation was not unreasonably vague where the solicitation defined “relevant” past performance to include projects of “a similar dollar value and contract type.”

In a recent bid protest decision, the U.S. Court of Federal Claims rejected a protester’s assertion that the solicitation was required to identify a specific dollar value associated with relevant past performance, finding that the solicitation’s phrasing was sufficient to allow offerors to compete intelligently.

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Two Isn’t Greater Than Five, GAO Reminds Agency

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GAO sustained a protest recently where an agency had given higher past performance scores to a proposal with two relevant examples of past performance than a proposal with five relevant examples.

In Patricio Enterprises, Inc., B-412740 et al. (Comp. Gen. May 26, 2016), GAO said that an agency cannot mechanically apply an evaluation formula that produces an unreasonable result, such as allowing a proposal with fewer examples of relevant past performance to somehow earn a higher score than a proposal with more examples.

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GAO: Incumbent Contractor Not Entitled To Highest Past Performance Rating

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An incumbent contractor was not entitled to “extra credit” for its status as the incumbent, nor was the incumbent entitled to the highest-possible past performance rating.

In a recent bid protest decision, the GAO confirmed that the mere fact that an offeror is the incumbent contractor does not require the procuring agency to assign the offeror a particular past performance score, so long as the agency’s past performance evaluation is reasonable.

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CPAR Challenge Wasn’t A Viable “Protest,” Says Federal Court

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A contractor’s attempt to challenge an adverse Contractor Performance Assessment Report was not a bid protest subject to the bid protest jurisdiction of the U.S. Court of Federal Claims.

In a recent decision, the Court rejected a protester’s creative attempt to challenge a CPAR as part of a bid protest.  Instead, the Court held, a CPAR ordinarily must be challenged through the FAR’s claims and appeals processes–although the Court appeared to leave the door open to bid protest challenges in limited circumstances.

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GAO: Subcontract With Incumbent Didn’t Mandate High Past Performance Score

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An offeror was not entitled to a high past performance score merely because it proposed a subcontracting relationship with the incumbent prime contractor.

In a recent bid protest decision, the GAO held that an agency had properly assigned the offeror a mere “Satisfactory” past performance score, despite a subcontracting relationship with the incumbent, because the prospective prime contractor had not sufficiently demonstrated its own relevant past performance.

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Court: Past Performance Evaluations Must Be Adequately Supported

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Past performance evaluations are a vital part of many federal procurements. Generally, the evaluation of an offeror’s past performance is a matter within the discretion of the contracting agency. But if an agency fails to adequately support its past performance evaluation, its findings cannot be upheld.

The United States Court of Federal Claims recently applied this rule, when it sustained a protest to an agency’s past performance evaluation because the evaluation failed to address the stated evaluation factors. In doing so, the Court provided guidance to both offerors and agencies as to a proper past performance evaluation.

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