Past performance information plays a role in most bid protest litigation at the United States Court of Federal Claims and the Government Accountability Office (GAO). Accordingly, it is important for contractors to understand the rules of the road gleaned from recent decisions by the Court and the GAO.
- Read the solicitation carefully. Calnet, Inc., B-402558.2, B-402558.5, B-402558.7, June 3, 2010, 2010 CPD ¶ 130 (Agency reasonably relied on past performance questionnaires because they were the only past performance information required to be reviewed under the solicitation).
- Past performance of parent or affiliate of offeror may be attributed as past performance company-wide if parent and division has an identifiable meaningful role in contract performance. Health Net Federal Services, LLC, B-401652.3, B-401652.5, Nov. 4, 2009, 2009 CPD ¶ 220 (Agency gave awardee evaluation credit for past performance of its parent and corporate affiliates where no indication of degree of involvement under the protested contract).
- Address adverse past performance information – do not think it will not be discovered. Bannum, Inc. v. United States, 91 Fed. Cl. 160 (2009) (Finding reasonable the agency’s consideration of a contractor’s default termination for relevant services in its past performance evaluation).
- Even if you do not identify particular past performance in a proposal, the agency has the authority to look elsewhere, especially if the information is “too close at hand” to ignore. Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard Recovery Assistance, Joint Venture, B-401679.4, B-401679.5, B-401679.6, B-401679.7, Mar. 10, 2010, 2010 CPD ¶ 77 (Agency ignored “close at hand” information in its possession).
- Watch out for the Internet! Line Government Services, LLP v. United States, COFC No. 10-375C, Nov. 5, 2010 (Source Selection Authority conducted a Google search for past performance information, finding some negative information).
- Reasonable perception – even if you have an explanation defending negative past performance, the agency may still rely on the past performance as negative. Dixon Group, Inc.; Command Decisions Systems and Solutions, Inc., B-402118, B-402118.2, B-402118.3, B-402118.4, B-402118.5, Jan. 15, 2010, 2010 CPD ¶ 88 (Agency based past performance evaluation on a reasonable perception of inadequate prior performance, even where the contractor disputed it).
- Contractors are only entitled to a “neutral” rating if they do not have any relevant past performance. CRAssociates Inc. v. United States, COFC No. 10-339C, Oct. 20, 2010 (Agency improperly assigned “unknown” rating to offeror that did not submit past performance information where proposal indicated offeror’s subcontractor may have had some relevant past performance).