Don’t Assume: What Does the Solicitation Actually Say about Past Performance?
February 14, 2017
Most contractors know that the consideration of past performance is an integral part of the Government’s approach to proposal evaluation. All too often, however, offerors proceed with teaming agreements and proposal preparation based on assumptions about the specific approach the Government will take – only to learn too late that that assumption was wrong. The recent Government Accountability Office (GAO) decision in Atlantic Systems Group, Inc., B-413901 (January 9, 2017) underscores the dangers of such an approach and highlights steps contractors should take to ensure they understand the solicitation’s past performance provisions.
The protest involved a challenge to a Department of Education (DoEd) award under a request for quotations (RFQ) for Cybersecurity Risk Management Framework (CRMF) services. When Atlantic Systems Group (ASG) reviewed DoEd’s explanation of the basis of award, the company protested. One of its arguments was that DoEd’s evaluation of corporate experience and past performance was unreasonable.
With respect to corporate experience, the RFQ required offerors to submit evidence of experience and capabilities “of the organization” relating to similar projects or contracts, in terms of the nature and objectives of the project or contract; types of activities performed; studies conducted; and major reports produced. For past performance, the RFQ instructed offerors to identify between three and five contracts performed in the past three years that were similar in size, scope, and complexity to the requirements of the contemplated award. Offerors were to describe the contracts in their proposal and provide a past performance questionnaire to the corresponding references for completion and return directly to DoEd.
In response to the RFQ, ASG identified two of its own contracts and two performed by its subcontractor for the corporate experience factor and the same two of its own contracts and one of the subcontractor’s for past performance.
During evaluation, DoEd did not consider the contracts performed by the subcontractor at all, reasoning that the RFQ asked only for experience and past performance information for the organization/offeror and the subcontractor was not the entity in whose name the offer was submitted. While the agency did consider the two contracts performed by ASG, the reference for one of them failed to return the past performance questionnaire to DoEd. In addition, the agency determined that the contract was not relevant for purpose of the corporate experience assessment because it was a limited term engagement focused primarily on providing support services and, therefore, not comparable in scope and complexity. While the other contract was considered comparable in size, it also was found not sufficient in scope and complexity because it was focused primarily on infrastructure and network defense activities. As a result, the agency assigned ASG a rating of “does not possess” for corporate experience and neutral for past performance.
ASG challenged the assigned ratings, arguing both that the DoEd’s conclusions concerning scope and complexity were unreasonable and that the agency improperly failed to consider the experience/past performance of its proposed subcontractor, since the solicitation did not prohibit the agency from doing so. On this point, ASG cited the GAO decision in Singleton Enterprises, B-298576 (Oct. 30, 2006), which upheld a similar protest in the context of a FAR part 15 procurement.
Upon review, the GAO found reasonable DoEd’s determination that ASG’s contracts were not relevant because they were not comparable in scope and complexity. More importantly, the GAO rejected ASG’s reliance on the Singleton decision and in doing so demonstrated why details matter.
As GAO noted, while Singleton involved an allegation that the agency had failed to consider the past performance of a proposed subcontractor, it arose in the context of a FAR part 15 procurement. The agency in Singleton took the same position as DoEd in this protest, arguing that it asked only for past performance of the offeror and that it intended that to mean the prime contractor only. However, FAR 15.305(a)(2)(iii) provides that contracting agencies should consider the past performance of subcontractors (in FA part 15 procurements). Based on this, and the fact that its decision have recognized that agencies have the discretion to consider subcontractor past performance unless the solicitation provides otherwise, the GAO concluded in Singleton that a latent ambiguity existed. While the protester reasonably interpreted the solicitation as indicating that the agency would consider the past performance of proposed subcontractors, the agency also reasonably interpreted the term “offeror” to mean only the entity submitting the proposal. Because of the latent ambiguity, the GAO sustained the protest and recommended that the agency amend the solicitation to clarify its intent.
Unfortunately for ASG, the Singleton reasoning and conclusion do not translate to this procurement. Unlike in Singleton, the solicitation here was issued pursuant to FAR part 8 and requested corporate experience of the organization and past performance information for the offeror, without mentioning subcontractors at all. In addition, unlike FAR part 15, FAR part 8 does not suggest that an agency evaluating an offeror’s past performance must also consider the past performance of its proposed subcontractors. Given this, the GAO found that the solicitation here is not ambiguous, and that it was reasonable for the agency to consider only the experience and past performance of the entity that submitted the offer -- and not its subcontractors.
Aside from reiterating the obvious (and always critical) importance of actually reading the solicitation’s past performance provisions, the Atlantic Systems decision provides a couple practical pointers that contractors should remember when considering specific opportunities and how best to pursue them. First, context matters. Pay attention to what FAR part controls because different FAR parts have different rules against which the text of the solicitation must be interpreted. Second, beware of ambiguity. Before settling on teaming arrangements and a proposal approach, identify any potential inconsistencies between what the solicitation and the FAR “say” and what you want to do – and ask for clarification or modifications to the requirements to resolve those issues. Moving forward and simply hoping that your assumptions are correct is not a viable strategy. Of course, these lessons do not apply only to the use subcontractors’ experience and past performance. The same considerations also apply to how the agency will evaluate corporate experience and past performance submitted by joint ventures. When the joint venture is the offeror, what the solicitation says may complicate things. You don’t want to work hard to get a joint venture in place for a proposal only to find out that you will not be able to take advantage of the individual venturers’ experience and past performance.
© 2017 Jackson Kelly PLLC