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Past Performance - Lack of Past Performance
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Unless an agency specifies a need for a minimum level of experience in the solicitation, a contractor cannot be found non-responsive due to lack of relevant past performance.
Implementation Schedule. The original phase-in schedule was: (1) more than $1 million beginning July 1, 1995; $500,000 beginning July 1, 1997 and $100,000 beginning January 1, 1999. More recently, the Under Secretary of Defense for Acquisition and Technology announced a delay until 1999 of the requirement for collection or use of past performance in procurements valued at less than $1 million. Much like problems encountered in the 60's, the delays reflect the tradeoff between the benefits of past performance and costs and administration headaches in developing and maintaining a workable system. Some contractors may welcome these delays while others with excellent long term relationships with their government customers may not be so happy over the delays.
Addressing Adverse Past Performance Evaluation. Industry, by and large, generally supported its use but was concerned that an erroneous negative evaluation would unfairly result in exclusion from the procurement. Industry stressed an offeror should be made aware of the evaluation and given the opportunity to rebut it. The resulting FAR Part 15.306 gave offerors this opportunity under either of two conditions: first, if the past performance is a determining factor preventing the offeror’s inclusion in the competitive range and second, if past performance is a significant weakness or deficiency that could be altered or explained to materially enhance the offeror’s potential for award.
Contractor Input in Past Performance Evaluation. A contractor can provide input into past performance evaluation during (1) source selection and (2) contract administration. During source selection, the contractor may identify federal, state, local and private contracts performed by the offeror that are similar to the contract being evaluated (FAR 15-608). Also, at the CO’s discretion, the offer may provide information on problems encountered and corrective action taken. Contractors need to use judgement here where if the CO does not exercise this discretion, a contractor risks identifying a troublesome contract without being able to explain problem areas and corrections taken.
During contract administration, an agency evaluation must be make available to a contractor as soon as practicable after its completion. The contractor has a minimum of 30 days to submit comments, rebut statements and offer additional information. Thereafter, the agency must perform a review conducted by personnel above the CO level, to consider disagreement regarding the evaluation (FAR 42.1503). The FAR states the ultimate decision is one for the contracting agency to make leaving unanswered whether the agency has unfettered power to resolve conflicting information regarding the contractor’s past performance.
Retention of Past Performance Information. To prevent the use of stale data, FAR limits the use of past performance information to three years after completion of contract performance (42.1503). Though an improvement over an early six year rule, the three year provision can cause problems on long term contracts. For example, eight year old information can be used on a five year contract.
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