Tensions flare in the Middle East. Saudi Arabia executes an Iranian cleric. Irate Iranians storm the Saudi embassy in Tehran. The Saudis cut off relations with Iran. Saudi allies in the region follow suit. Iran seizes two U.S. Navy vessels in the Persian Gulf. All the while, the U.S. Government pours billions into the region. Today, we address one U.S. Government procurement for F-15 fighter jet support services for the Royal Saudi Air Force (RSAF) out of the scores of contracts that made up those billions of U.S. dollars.
The U.S. Government Accountability Office (GAO) recently released its Bid Protest Annual Report to Congress for Fiscal Year 2015. The report lists the most prevalent grounds for winning bid protests. In a prior blog post, we reviewed the first item on GAO’s list, Unreasonable Cost or Price Evaluation. Now, we take a look at item no. 2 on GAO’s list, Unreasonable Past Performance Evaluation. GAO uses its decision in Al Raha Group for Technical Service, Inc.; Logistics Management International, Inc., B-411015.2; B-411015.3, Apr. 22, 2015, 2015 CPD ¶ 134 as an example, and describes the holding as “finding that the agency failed to consider available past performance information concerning key personnel.”
Government contractors can gain valuable insights by reviewing the Al Raha Group decision. GAO focused on available past performance information concerning key personnel, and so will we. Our review will focus on two points: (1) how this case can help you make winning protest arguments; and (2) how this case can help you present winning proposals to the government.
Winning Protests: Unreasonable Past Performance Evaluation
The protests in Al Raha Group focused on the Air Force’s past performance evaluation of the protesters and the awardee.
Past Performance Evaluation of Protester
The Request for Proposals (RFP) required the Air Force to evaluate the recency, relevancy and quality of each past performance reference and to assign an overall past performance rating. The RFP also stated that “the quality of the key personnel’s performance under the submitted contract must be able to be verified by the Past Performance Team in order to be considered” in the past performance evaluation. That’s where the Air Force’s evaluation veered off track.
The Air Force said it “could not verify the past performance” of the protester’s CEO and assigned a negative rating. The Air Force had received three past performance questionnaires (PPQs) from Air Force officials that gave positive ratings, several strengths and no weaknesses for the protester’s CEO. And, evaluators found the protester’s references were either relevant or somewhat relevant.
Not satisfied with that information, the Air Force sought out additional details. For some unknown reason, evaluators did not request information from the authors of the PPQs but instead reached out to the subsequent program manager who had no day to day contact with the protester’s CEO and could not validate some of the data on the PPQs. So, the Air Force decided it could not consider the positive past performance information. GAO was unforgiving in its criticism of the Air Force, stating that “the Air Force effectively elected to ‘verify’ the verification set forth in the PPQs.” GAO noted that there was “no reasonable explanation for how the subsequent program manager’s inability to verify the LMI CEO’s performance negates the verification provided by knowledgeable agency officials in the PPQs.” GAO sustained the protest on that basis.
Past Performance Evaluation of Awardee
There were other problems with the Air Force’s award here. The past performance evaluation of the awardee also was bungled. The scope and magnitude of effort required for the F-15 fighter jet support contract had an estimated value of $110 million and a 5 year period of performance. The Air Force gave high marks to the awardee based on 4 references with contract values ranging from $463.50 to $143,461.67 and performance periods of 3 days, 1 month, 3 months and 1 year. GAO was not impressed and found that rating to be unreasonable. GAO noted that the combined value of the awardee’s referenced contracts was only 0.14% of the estimated value of the effort required by the RFP.
Winning Proposals: Three Points
The RFP in Al Raha Group allowed newly-formed entities that were in existence for less than five years to rely on the past performance of their key personnel. Those provisions are not uncommon and allow new companies with no prior contracts or without relevant corporate experience to compete for work. The past performance evaluation shifts from a focus on the contractor’s track record to a focus on the contractor’s key personnel.
- Personnel Can Provide Past Performance
One takeaway for government contractors is that you can get “credit” for the past performance of your employees in certain procurements. Check to make sure your business development team is aware of this nuance. They also should be aware of all your qualifications and capabilities–company-wide and at the key personnel level. All the usual rules apply. Read the RFP. Read key personnel resumes and cross-check those against past performance requirements in the RFP. Details matter. You don’t want to end up like the awardee in Al Raha Group.
- Your Past Performance “Matches” the RFP’s Scope
The key point here is that the awardee must have been holding its breath when it submitted past performance references that were only 0.14% of the RFP’s value. The Air Force’s rating made GAO’s decision easy. Going forward, government contractors also have it easy–you must give the agency references that as closely as possible “match” the effort in the RFP.
- Ask Questions and Follow Up
Another key point is that past performance evaluations can be complex. So, always respond right away if you get a negative assessment. Also, always ask questions about past performance at your debriefing. Especially if the agency gives you an unexpectedly low rating. Or if they give your competitor an unexpectedly high rating. What you learn can lead to a better proposal next time or, as in Al Raha Group, to a valid protest ground.
The past performance evaluation in the Air Force’s RSAF F-15 fighter support procurement was a mess. There were other problems not mentioned above. For instance, Air Force evaluators failed to document all of their findings in the contemporaneous record. But that winning protest argument is a story for another day.