By: Lindsay Simmons
HK Consulting (HK) protested the terms of a Request for Proposals (RFP) alleging it unduly restricted competition. What was the problem? The RFP stated that the agency would not consider the past performance of an offeror’s proposed subcontractors or key personnel. In HK’s view, this past performance criteria was unreasonable and unduly restrictive of competition. But GAO did not agree. HK Consulting, Inc., B-408443 (Comp. Gen. Sept. 18, 2013).
Section M of the RFP stated that, in assessing the offeror’s performance confidence, the agency would not consider the experience or past performance of proposed subcontractors or key personnel. According to the agency, it intended to limit its performance confidence assessment to the principal offeror’s past performance. Why? In order to ensure the evaluation of proposals focused on those with whom the Air Force would have privity of contract – not on those who would not, if an award were made, have any obligation to perform.
GAO found these past performance limitations to be “unobjectionable” and saw “no reasonable way that they can be said to restrict competition”. According to GAO –
- An agency has a legitimate interest in assessing performance risk by considering only the experience and past performance of entities with which it will have contractual privity;
- There is no legal requirement that an agency attribute employee experience to the contractor in evaluating its experience and past performance; and
- The RFP provided that offerors lacking recent or relevant past performance history would be assessed a neutral rating and, thus, did not preclude HK from submitting a proposal or receiving an award.
Curiously absent is any discussion of FAR 15.305(a)(2)(iii) that states an “evaluation should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.” This is particularly noteworthy insofar as GAO just repeated its oft-held maxim that “an agency properly may consider the relevant experience and past performance of key individuals and predecessor companies; such experience and past performance may be useful in predicting success in future contract performance.” Harbor Services, Inc., B-408325 (Comp. Gen. Aug 23, 2013).
How can these apparently conflicting positions be resolved? First, the FAR 15.305(a)(2)(iii) says “should” not “shall.” Second, predecessor company, subcontractor, and key personnel past performance should be considered “absent solicitation language to the contrary.” Id. In HK Consulting, there was “language to the contrary”. In Harbor Services there was not. It’s thin, but it stands as a cautionary tale. Do not assume you will be able to rely on predecessor company, subcontractor, or key personnel past performance.
Lindsay Simmons is the attorney responsible for the content of this article.
© Jackson Kelly PLLC 2013