Past Performance as an Evaluation Factor

Here's a recent GAO bid protest decision that illustrates the importance of submitting your best, most relevant "past performance" data, when "past performance" is a factor in the award of a Government contract.

The GAO (Government Accountability Office) denied a protest where the past performance information the protestor claims should have been considered was not provided in the protestor's proposal. An offeror bears the responsibility to identify relevant past performance information and an agency is not required to investigate and consider matters not referenced in the proposal.

In this case, the solicitation rated past performance as more important than price and price was significantly more important that small business participation. The RFP required offerors to submit information for up to three recent and relevant contracts or delivery orders. The information was to include quantities, monthly delivery rate and maximum monthly delivery rate. Additionally, the offerors were required to have the contracting officers of these past performances to complete a questionnaire.

The solicitation estimated a production rate of 4,000 units per month. The protestor submitted the required three past performance reports. One of the three had a production rate of 4,000 per  month but the other two had only 2,000 per month. The contracting officer noted that there was a partial overlap on the two performances of 2,000 per month so gave credit for that. In order to ensure that the agency evaluated recent and relevant information regarding past performance, the Government looked for additional delivery information. They identified some contracts but were unable to verify actual delivery under those additional orders.

Unable to verify actual deliver information, the Government rated two of the past performances as "very relevant" and the third as "relevant". The competitor's received three "very relevant" appraisals and won the award.

The losing bidder essentially argued that the Government should have done more work to determine actual delivery quantities. GAO disagreed. GAO stated:

Once again, however, FNM asks that we shift responsibility to the agency for finding information about another contract that FNM could have identified in its proposal, but did not. For the reasons above, we see no basis for concluding that the agency was required to search for information that FNM did not refer to in its proposal. 

GAO concluded that the agency reasonably evaluated past performance. Had the offeror provided adequate past performance data, both offerors would have been rated the same as far as past performance was concerned and award would have been made based on other factors, perhaps price.