• Past Performance

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 discussions 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.

Past performance surveys were held to be fatally flawed where personnel conducting the surveys were inadequately trained, relevant questions were not asked and there were failures to provide transcripts of survey references for corrections (Serco). The agency improperly gave equal consideration to all awardee’s past performance resulting in finding the agency did not properly consider the relevance to the solicited contract (DRS C3). Other findings confirm the agency has broad discretion in making its decisions:

(1) the resumes the protester submitted lacked detail to confirm they had relevant experience (Superior Landscaping, B-310617) (2) agency had properly considered more relevant past performance experience where it had been a prime contractor rather than a subcontractor (PMC Sltns, B-310732) (3) no basis to reverse a decision that protester’s past performance was “marginal” (4) contracts based in Iraq were not as relevant as those for Afghanistan (Aegis Defense Svcs, B-400093) (5) there was no basis for protester’s argument that it should have received an exceptional rating based on its performance as incumbent because RFP stated performance on similar not identical contracts would be most relevant (New Breed, B-400554).

It is the contractors responsibility to provide sufficient evidence to establish its past performance history. Where the protester asserted the agency did not properly evaluate its past performance the GAO ruled the protester did not show prejudice since its price was nearly twice the awardee’s and it was unlikely to have received the award even if its past performance rating was exceptional (Horizon Inds, B310542). An agency is only required to use reasonable efforts to contact references and its efforts were reasonable where protester only provided an email address and had apparently failed to ensure its references’ cooperation (Guam Shipyards).

An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the proposal demonstrates the resources of the parent or affiliate will affect performance of the offeror. Past performance of proposed subcontractors may properly be considered in evaluating past performance of an offeror where the solicitation does not expressly prohibit it (McGoldrick Const Svcs, B-310340) or where it will perform a significant share of the work (Aegis Defense). Also past performance of a parent company was properly attributed to awardee (Femme Corp).

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