Federal Contract Law: Judging past performance can be vexing

Karen D. Powell

Since 1997, acquisition regulations have required agencies to include past performance as a specific evaluation factor in competitive awards. Ensuring the integrity and accuracy of past performance information is a joint responsibility of contractors and agency acquisition officials. When either fails to shoulder its share of this burden, the award decision is questionable, and often questioned.

A recent review of General Accounting Office protest decisions illustrates this point. Michael R. Golden, assistant general counsel for GAO's Procurement Law Division, published the analysis April 8 in the Federal Contracts Report.

He reviewed some 250 bid protest decisions issued since 1999 involving an agency's evaluation of a vendor's past performance data. He identified what are termed 'the ground rules' for using and evaluating past performance.

The rules include basics such as identifying the weight to be accorded past performance in the solicitation and the need to distinguish between evaluations of past performance and experience. The latter relates to the vendor's technical competence rather than the quality of performance.
Golden also describes GAO's rules for determining if an agency has fairly and reasonably evaluated past performance in various situations, such as whether the agency relies on the listings in the Contractor Performance Assessment Report System.

GAO often has to consider whether the quantity of data used to rate past performance is sufficient. This is illustrated in the line of decisions discussing past performance information that is deemed 'too close at hand' to be ignored or omitted from consideration.

A seminal case in this area involved International Business Systems Inc. of Chantilly, Va. The company received a contract to upgrade the telephone system at a facility in Pennsylvania run by the Veterans Affairs Department.

The agency failed to consider one of the protester's references because the listed contact point failed to return the evaluation form.

GAO normally would not fault the agency, reasoning that the vendor is responsible for making sure its references respond.

But GAO held that VA had an obligation to consider the reference because it involved the agency, the same services and even the same contracting officer.

On the other hand, GAO does not require an agency to search for relevant past performance information. A recent case in point involves a contract with Cetrom Inc. of Gaithersburg, Md., to renovate research laboratories for the National Institutes of Health. Cetrom objected to the agency's determination that it lacked similar work experience.

The company pointed out that it had performed a similar renovation contract, mentioned in its proposal. But GAO found the reference was not in the proper section of the proposal and, therefore, the agency had no obligation to consider it as part of the past performance evaluation.

Karen D. Powell is a lawyer with the Washington law firm of Petrillo & Powell. E-mail her at kdp@petrillopowell.com.

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