One of my major concerns with the draft solicitation for the CIO-SP4 GWAC was the limited nature of the past performance NITAAC intended to consider. Under the draft RFP, NITAAC would not have considered the past performance of subcontractors–something I believed violated 13 C.F.R. 125.2(g) in certain cases, and was contrary to the guidance of FAR 15.305(a)(2)(iii), which says that agencies “should” consider the past performance of “subcontractors that will perform major or critical aspects of the requirement.”
The good news is that the final CIO-SP4 RFP fixes this problem. That’s a relief for a lot of potential offerors. But now I’m concerned that NITAAC went too far in the other direction!
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.
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.
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.
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.
For Federal Supply Schedule procurements, agencies are not required to evaluate past performance references of subcontractors, unless the solicitation provides otherwise.
As one offeror recently discovered in Atlantic Systems Group, Inc., B-413901 (Jan. 9, 2017), unlike negotiated procurements, where agencies “should” evaluate the past performance of subcontractors that will perform major or critical aspects of the contract, offerors bidding under FSS solicitations should not assume that a subcontractor’s past performance will be considered.
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.