Government Contracts Monitor

Past Performance Information: Information Availability and Reference Follow-Up

March 5, 2014

A recent GAO decision highlights the importance of ensuring that (1) your past performance information in Government databases is up-to-date, and (2) your proposed references respond and timely submit past performance questionnaires. Veterans Elite, Inc., B-409233 (Comp. Gen. Feb. 10, 2014).

The case involved an Air Force procurement for mechanical services at Joint Base McGuire-Dix-Lakehurst, New Jersey. The RFP described a seed project, to be awarded to the best value offeror, with subsequent task orders to be competed among the awarded contractors. Because the RFP advised offerors that, by submitting an offer, they were “acced[ing] to all solicitation requirements,” proposals were to be evaluated only as to (i) past performance and (ii) price, with past performance being more important. For purposes of past performance evaluation, offerors were to provide a list of no more than five relevant contracts performed for federal agencies and commercial customers within the past three years.

The RFP stated that the agency would begin its evaluation by ranking the proposals based on price, and then seek relevant past performance information regarding the lowest-priced offerors and use this information to assign performance confidence assessment ratings of “substantial,” “satisfactory,” “limited,” “no” or “unknown” confidence. If the lowest-price offeror was judged to have a substantial confidence performance rating, that offeror would be deemed to represent the best value and the process would stop. However, if the lowest-priced offeror was rated satisfactory or lower as to past performance, the agency would make an “integrated assessment best value award decision,” and reserved the right to award to other than the lowest-price offeror.

The agency received five timely proposals. Veterans Elite (“VEI”) offered the lowest-price. However, VEI’s past performance received only a satisfactory confidence rating. In this regard, while VEI had identified six projects in its proposal, the agency received completed Past Performance Questionnaires (“PPQs”) from only two, and in both cases the ratings were primarily “satisfactory.” The agency also conducted a search of the Past Performance Information Retrieval System (“PPIRS”), but found no Contractor Performance Assessment Reports under VEI’s DUNS number.

Since VEI did not receive a “substantial” confidence rating, the agency continued the evaluation and rated three of the remaining offerors at substantial confidence, and the fourth offeror as satisfactory. The agency concluded that the three offerors with substantial confidence ratings represented the best value and awarded contracts to them.

After timely requesting and receiving a debriefing, VEI filed an agency-level protest. Upon the denial thereof, VEI protested to the GAO. VEI challenged both its past performance evaluation and the best value trade-off. Among other things, VEI argued (i) that the agency failed to consider VEI’s past performance on the projects as to which its references failed to return completed PPQs, resulting in an “unfair downgrading” of VEI’s proposal, (ii) that one of the missing projects was at McGuire AFB, and therefore was “too close at hand” for the agency to ignore, and (iii) that the RFP language imposed an affirmative duty on the agency to independently seek past performance information from databases including commercial contracts.

The GAO rejected each of these arguments. First, the GAO stated that the satisfactory rating applied was consistent with the two references received; therefore, there was no “unfair downgrading.” Second, the GAO stated that the “too close at hand doctrine” generally is limited to situations involving either (i) the same services with the same procuring activity, or (ii) information personally known to the evaluators, neither of which was established by VEI here. Third, the GAO refused to read a new affirmative duty of investigation into the RFP language, and that, in any event, VEI had failed to establish any prejudice by showing that such a search would have revealed any information as to its performance on relevant contracts. As to best value, the GAO stated that a finding that the higher price associated with the proposals of the three awardees was worthwhile was “implicit” in the contracting officer’s award decision, even though the contracting officer did not explicitly so state, and noted that the evaluation was limited to past performance and price.

The latter rationale seems a little sketchy, and arguably inconsistent with GAO decisions requiring agencies to explain why a higher cost is deemed warranted. However, the real problem here, which VEI was trying to dance around, was the absence of past performance data that might have enabled the agency to apply the higher substantial confidence rating. Since VEI was the low-priced offeror, such a rating would have ensured it obtaining an award.

There are several lessons to be learned here. First, an offeror who sits back, and simply hopes that its references will respond and timely submit requested PPQs, does so at its own risk. The far better practice would be for the offeror to affirmatively notify the identified references that the offeror is listing them, try to make sure each reference will say what is needed, and ask them to timely complete a PPQ should such be requested. Second, the offeror regularly should ensure that its past performance information is up-to-date, complete and accurate in the various Government databases (e.g., SAM, PPIRS), and promptly take appropriate steps to correct any omissions or errors. Third, if the offeror wants the agency to consider other information or databases, the offeror should identify such information in its proposal. Fourth, if the offeror wants to assert after-the fact that any information not considered would have helped the offeror’s cause, the offeror needs to prove the pertinent facts.

The bottom line is that, as an offeror, you need to take the responsibility to ensure the availability, and provision to the evaluating agency, of the necessary past performance information. Otherwise, like VEI here, you may end up on the outside looking in, and trying to manufacture protest grounds to get a second bite on a procurement that you should have won.

Hopewell Darneille is the attorney responsible for the content of this article.