Government Contracts Monitor
Past Performance Probes May Begin and End with Proposal Proffers
May 17, 2013
By: Lindsay Simmons
The Government Accountability Office (“GAO”) expects offerors to bear the burden of submitting the past performance information they wish an agency to consider in evaluating their proposals. In the recently decided protest FN Manufacturing LLC (“FNM”), B-407936 (Comp. Gen. April 19, 2013), the GAO stated it sees “no basis for concluding” that an agency is “required to search for information that [the offeror] does not refer to in its proposal.”
FNM involved an RFP that required offerors to submit past performance information for up to three recent and relevant contracts and, for each such reference, to provide a past performance questionnaire to the appropriate contracting officer. FNM, an unsuccessful offeror, alleged the Army unreasonably failed to ascertain and use helpful information about its performance on additional contracts it held – contracts identified by the Army in its review process, but not referenced in FNM’s proposal. FNM’s position was that once the Army was aware of this relevant past performance information, it was obligated to verify the information and use it in the evaluation process. The GAO disagreed, refusing to “shift the responsibility to the agency for finding information about another contract that FNM could have identified in its proposal, but did not.”
In reaching its decision, the GAO distinguished FNM’s situation from that presented in a previous protest, International Bus. Sys., Inc. B-275554 (Comp. Gen. Mar. 3, 1997), where, while confirming “that there is no legal requirement that all past performance references be included in a valid review of past performance,” the GAO did find that “some information is simply too close at hand to require offerors to shoulder the inequities that spring from an agency’s failure to obtain, and consider, the information.” The distinguishing feature in IBS is that while, as in FNM, the reviewing agency knew of the previous contract and its relevance, unlike the situation in FNM, (i) IBS had referenced the previous contract in its proposal, and (ii) the Agency was aware of IBS’s exemplary performance on the prior contract. The relevant official for the prior contract simply had failed to return the past performance assessment form. Under these circumstances the GAO found the reviewing Agency acted unreasonably in failing to consider IBS’s performance on the earlier contract.
The take away: Highly relevant, favorable past performance must be referenced it an offeror’s proposal in order to make certain it is considered in the evaluation process.
Lindsay Simmons is the attorney responsible for the content of this article.