Protecting Past Performance in a Competitive Marketplace

By Joshua Duvall posted 26 days ago

  

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In today’s marketplace, government contractors must build a track record of strong past performanceit is a critical metric necessary to secure future awards. With each new contract, you have the opportunity to showcase your workforce and technical proficiency. Importantly, contractors who successfully perform the work and impress agency officials will likely receive a glowing past performance report. And now more than ever, contractors need to maintain a positive working relationship with agencies. Nowadays, contractors are faced with increasing competition and decreasing federal spending.

Where two or more contractors offer similar technical ratings, strong past performance references have the ability to sway an award. As a result, contractors should be aware how the Government Accountability Office ("GAO") reviews past performance evaluations. Contractors who understand GAO’s process will be in a better position to address a flawed past performance evaluation, which may lead to corrective action or a sustained protest.

Past Performance Evaluation

Generally, GAO reviews past performance to determine whether the agency acted reasonably and consistently followed the solicitation’s evaluation criteria and applicable procurement laws and regulations. [1] However, a good deal of deference is afforded to agency evaluations of past performance. GAO will not overturn the agency’s evaluation unless it is unreasonable. [2] What constitutes an unreasonable evaluation can vary depending on circumstances and agency conduct. The following three examples illustrate flawed past performance evaluations:

1. Al Raha Group et al. [3] GAO sustained a protest where the agency failed to meaningfully consider information in its possession concerning key personnel. Logistics Management International ("LMI") submitted past performance questionnaires ("PPQs") for three past performance references. The PPQs were completed by current and former agency officials. Upon evaluation of the PPQs, the agency found that for the three references, “7 of the 7 relevancy criteria were met.” [4] However, the agency assigned LMI a “limited confidence” rating because the agency chose to verify the PPQs by speaking with a program manager who was not a program manager for two of the three required references and who could not validate all information provided by LMI.  GAO reasoned that the agency “effectively elected to ‘verify’ the verification set forth in the PPQs by seeking further information from the subsequent program manager.” [5] GAO sustained the protest because the agency unreasonably discounted the verification provided by the PPQs.

2. CSR. [6] GAO sustained a protest where the agency inconsistently evaluated the awardee’s and protester’s past performance. The RFQ allowed offerors to submit up to nine past performance references and advised offerors that the agency could also use “data obtained from other sources[.]” [7] CSR argued the agency failed to look at additional, relevant past performance information that was too “close at hand” for the agency to ignore. The agency claimed that it used the most recent information available and that it was not required to consider information outside of the protester’s quote. However, by considering past performance projects that were not in the awardee’s quote, the agency afforded the awardee different treatment.  GAO sustained the protest, in part, because the agency’s unequal treatment of offerors was ultimately unreasonable.

3. Arctic Slope. [8] GAO sustained a protest where the agency failed to sufficiently evaluate the relevance (size and scope) of the awardee’s past performance references. The solicitation required the agency to evaluate the “extent and relevance” of each offeror’s past performance. The agency also notified offerors that it would contact references for additional information regarding the size, scope, and complexity of its past performance references. The agency documented its past performance evaluation in a one-page chart, which contained “average” past performance ratings for each offeror. But, the agency did not perform the required analysis on the relevance (size and scope) of those past performance references. GAO sustained the protest because the agency failed to adhere to the solicitation’s past performance evaluation methodology.

Takeaway

Contractors must secure positive past performance references to increase their chances of winning government contracts. During evaluations, agencies will examine those references because they are considered a benchmark for future performance. Where competition is tight, your record of past performance can be the agency’s determining factor for award. Although there are a number of valid reasons that GAO can overturn an agency’s past performance evaluation, each scenario shares one common theme: reasonableness. Contractors who understand GAO’s process are in the best position to address an unreasonable past performance evaluation, which may lead to corrective action or a sustained protest.

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Note: I have also published this article on LinkedIn.

[1] All Points Logistics, Inc., B-407273.53, June 10, 2014, 2014 CPD ¶ 174 at 10-11.

[2] Id.

[3] Al Raha Group for Technical Services, Inc.; Logistics Management International, Inc., B-411015.2, B-411015.3, Apr. 22, 2015, 2015 CPD ¶134.

[4] Id. at 13.

[5] Id. at 15.

[6] CSR, Inc., B-413973, B-413973.2, January 13, 2017.

[7] Id. at 5.

[8] Arctic Slope Mission Services, LLC, B-410992.5, B-410992.6, Jan. 8, 2016.

DISCLAIMER: This post is for informational purposes only and may be construed as attorney advertising in some jurisdictions. The information provided above is not intended to be legal advice and should not be construed or relied upon as legal advice. If you need legal advice, please consult an attorney.

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