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Posted on Monday, April 17, 2017

Lessons Learned: Past Performance Evaluations

Three recent GAO decisions are good lessons on how offerors can needlessly harm their past performance evaluations.

Make sure you check first with the references you intend to give to the agency.

This is especially true when the agency allows you to cherry-pick which references you will give the agency.

An Army Corps of Engineers RFP let offerors identify and submit evaluations for three to five projects similar to those contemplated by the RFP. Referenced projects could include projects “concerning sensitive compartmented information facilities (SCIF).” As is often the case, the Corps told offerors it might “consult other sources of past performance information such as contractor performance assessment reporting system (CPARS) reports.”

The offer from Williams Building Company, Inc. included a reference for project for which Williams claimed it was a subcontractor responsible for the design and construction of a new SCIF. The agency, however, did not give Williams credit for SCIF work because the prime contractor completed a past performance questionnaire for the same project claiming that Williams’ work was “renovation of secure space,” which is not the same as the design and construction work that Williams had described. This inconsistency cost Williams points; according to GAO, the agency “did not give Williams credit for SCIF experience, and instead assigned a weakness, because information received from the prime contractor regarding SCIF construction did not agree with the description Williams gave of its responsibilities and output.”

Williams’ protest of the Corps’ evaluation was not successful. GAO focused solely on the discrepancy and not whether the prime of Williams was correct: “the agency reasonably determined that the discrepancy between the protester’s explanation of its SCIF work and the prime’s past performance questionnaire response raised questions regarding whether the protester had SCIF construction experience.” Williams Building Company, Inc., B-413262.2; B-413262.3, Nov. 15, 2016.

Make sure the past performance information you submit meets the RFP’s exact requirements.

It’s critical for offerors to comply with all the details of the RFP’s past performance requirements.

A Marine Corps RFP defined “recent” past performance information as work that occurred “within the three years prior to the RFP release date and a minimum of one year of performance had to be completed as of the closing date of the RFP,” which was June 1, 2016. One past performance reference that ALQIMI National Security, Inc. submitted was several months short of the one year requirement. In protesting, the vendor had an interesting argument why that past performance should not have been excluded: by the time the agency finally awarded the contract following a protest and re-evaluation, December 15, 2016, it had performed that contract for more than one year.

However, GAO focused on the details of the RFP’s requirement: one year of performance prior to June 1, 2016 and found that the Marine Corps had properly excluded that “too short” past performance information. “It would have been improper for the agency to consider past performance submitted by ALQIMI that did not satisfy the solicitation’s recency requirement, without providing the same opportunity to the other offerors.”  ALQIMI Nat’l Sec., Inc., B-413713.2, Apr. 3, 2017.

Make sure the RFP’s past performance requirements are not ambiguous.

In the ALQIMI decision, the RFP at least clearly stated a specific date from which duration would be measured: one year prior to June 1, 2016. Offerors have a different problem when, in the RFP’s description of the specific duration of acceptable past performance references, the RFP does not say whether the duration runs back from the date that offers are submitted, from the date the solicitation is issued, or a specific date like June 1, 2016; in other words, situations where the RFP leaves the duration requirement ambiguous.

A recent GAO decision dealt with such an ambiguity. According to the RFP, to be considered a “recent” project, “ongoing efforts had to have been performed for at least six months.” The ambiguity was that the RFP didn’t specify when that six months began to run.

IT Enterprise Solutions JV, LLC (ITES) assumed without asking the government prior to submitting its offer that the six months went back from the time offers were submitted; it proposed Northrop Grumman as a subcontractor and provided a Northrup project that been ongoing for six months from the time ITES submitted its proposal.

However, the government interpreted the six months as going back from the date the solicitation was issued. This interpretation meant that the project was not considered “recent” because it was seven days short of six months from the date the RFP was issued. This evaluation was one reason ITES did not win the contract.

When the contracting officer was given the choice of resolving the ambiguity in favor of ITES, thereby making closer the competition between the awardee and ITES the eventual runner up, the contracting officer decided to apply to the ambiguity in a way that made the awardee’s winning margin greater.

GAO affirmed the contracting officer’s decision. According to GAO, the RFP had created a patent ambiguity that ITES had failed to timely challenge before submitting its offer: “an offeror who chooses to compete under a patently ambiguous solicitation does so at its own peril and cannot later complain when the agency proceeds in a manner inconsistent with one of the possible interpretations.” IT Enterprise Solutions JV, LLC, B-412036.3, Jan. 31, 2017.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the April 2016 Monthly Insights newsletter. For Red Team’s industry take on the ITES decision, please click here. For more information on how to sign up for Monthly Insights, please click here.

Terry O’Connor is the Director of Government Contracts for Berenzweig Leonard, LLP, and can be reached at toconnor@berenzweiglaw.com.