Bid evaluations should avoid a neutral rating for past performance

In the Federal Acquisition Regulation Part 15 rewrite, the policy drafters added past
performance information that sets no guidelines on defining past performance.

According to the current FAR treatment, past performance is ''one indicator of an
offeror's ability to perform the contract successfully.''How informative.

The current FAR also tells us that a lack of past performance should result in ''a
neutral evaluation for past performance.''The proposed rewrite defines a neutral
evaluation as ''any assessment that neither rewards nor penalizes firms without relevant
performance history.''

So past performance is one indicator of future performance, and its absence is not to
be considered in decision-making.

It is no surprise that past performance rules outline what to do when it doesn't exist.
Some have tried to distinguish it from personnel qualifications and experience. For
example, they argue that experience is what the vendor did and past performance is how
well the vendor did it.

The Part 15 rewrite gives the government an excellent opportunity to remain silent on
what actually constitutes past performance. Of course, there will be public comments on
the rewrite suggesting that the government should define past performance. But by leaving
its definition open to contracting officers, regulation writers can help restore a
vendor's track record to its rightful place as a discriminator in the source selection

It leaves the definition up to those who will have to live with the results of awarding
contracts to vendors with no track records--mainly the buying agencies.

How should past performance be defined in a given acquisition? As broadly as possible.
Past performance then is so inclusive a term that all vendors will have some past
performance. Agencies could give vendors with extremely limited past performance a rating
commensurate with that performance level. More important, the dreaded neutral evaluation
will never come into play.

When using past performance as an evaluation factor, include such subfactors as
corporate, personnel and subcontractor experience. Use the broadest possible notion of
relevant experience, too. And use the new open vendor and agency communications to ferret
out past performance not initially apparent.

Bob Little, an attorney who has worked for the General Accounting Office and a
Washington law firm, teaches federal contract law.

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