Friday, February 1, 2019

Can the Government Consider Information that Occurs After Proposal Submission When Evaluating Proposals?

We all know that past performance and past performance evaluations play a significant role in the awarding of Government contracts. Most competitive solicitations include past performance as a significant evaluation factor and prospective contractors have the opportunity to put their best foot forward when compiling and submitting past performance information.

But what about past performance information that occurs after a proposal is submitted? That's the question that Federal Prison Industries (FPI) asked.

DLA (Defense Logistics Agency) issued a solicitation for shirts. Award was to be made on best-value trade-off basis considering (i) product demonstration models, (ii) past performance, and  (iii) price.

Proposals were submitted in February 2018 but between April and August, there were performance problems on one of FPI's other contracts. The contracting officer noted that the Marine Corps had to reduce the number of shirts issued to soldiers, which was a direct customer impact. Although the contracting officer recognized that this information was after the proposal closing date, he/she concluded that it would not be appropriate to ignore relevant past performance information. Ultimately the contracting officer decided that FPI warranted an overall marginal rating for the quality and past performance factor and an overall rating of low confidence.

Ultimately, someone other than FPI was awarded the contract so FPI appealed the award.

The protest was denied meaning that contracting officers are allowed to consider any and all information, even if that information was not available at the time of proposal submission. The GAO noted that DLA was aware of additional information pertaining to contracts that FPI itself identified as being relevant, and therefore, indicative of FPI's ability to perform the resulting requirements.GAO has consistently recognized that an agency may properly use information known by its own evaluators, as with any other references, to aid in the evaluation of proposals.

The full GAO decision is available here.

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