FAR 15.304 requires that past performance be one evaluation factor that must be considered in all negotiated procurements and the boards and courts are defining how this new factor will be applied. When negotiated awards are to be made with discussions offerors are to be given the opportunity to clarify adverse past performance while negotiated awards that do not provide for discussion may be given the opportunity to clarify past performance. An agency is not required to communicate with offerors past performance information where discussions are not held unless there is a clear reason to question the validity of the past performance information (Universal Fidelity Corp., B-294797).

An agency has broad discretion in determining whether a particular contract is relevant (Hera Construction, B-297367). The GAO held that an agency erred in considering relevant two of the awardee’s previous contracts that involved substantially smaller and less complex work scope while the protester’s more relevant work as an incumbent was not considered (Clean Harbors Environmental Svcs. B-296176). The GAO ruled there was no requirement that an incumbent’s experience be deemed more relevant (University Research Co., v. US 65 Fed. Cl. 500). The GAO ruled that the length or duration of an offeror’s prior contract efforts logically relates to the relevance and quality of its past performance (Chenega Technical Prdts, B-295451). In a competition requiring offerors to provide five contracts that were the same or similar to proposed work that was performed in the past three years, the GAO ruled that an awardee’s perfect score based on a single reference that was significantly below the value of the contract at issue was improper (Sytronics Inc. B-297346).

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