Another View" Using past performance to steer contract awards

Joseph J. Petrillo

When it comes to awarding contracts, there are two kinds of government officials. One sort believes that a fair competition, using a well-crafted solicitation, will get the government the best-value contractor. The other sees the procurement process as a set of obstacles to be overcome before making an award to a preselected company.

For those who want to manipulate the process, the rules governing the evaluation of past performance offer broad discretion and a bonanza of opportunities to steer the evaluation in a desired direction.

When past performance is part of the evaluation, most solicitations require that participating companies identify some of their ongoing and completed contracts. The instructions may only ask for 'similar' contracts, or they may ask for all completed contracts over a certain period of time, or they may ask for some combination of the two.

The government can also use information from sources other than the contracts listed in the proposal. For instance, the National Institutes of Health sponsors an often-used past-performance database.

Since multiple contracts usually factor into the evaluation, it's common to use point-scoring systems. Questionnaires sent to references ask for ratings on a numeric scale. The NIH system includes both numeric scores and narratives.

So long as the company has been in business for a while, it will have a variety of contracts to choose from. And the scores for those contracts are likely to vary. Few companies are rated excellent or execrable all the time; and most don't do everything well. Even if a contractor sticks to what it does best, and does a great job every time, it will run into the 'tough grader,' a phenomenon we all remember from school.

Varied scores make manipulation possible. The evaluator can lift a competitor's evaluation by excluding low scores and trash it by doing the opposite. There is no rule that the evaluator needs to include every contract mentioned in a proposal. And no solicitation I've heard of requires the government to assess the same number of scores for each offeror.

The normal tendency to put one's best foot forward makes it easier to find high scores. The contracts cited in a proposal are likely to be those with the best performance and highest scores. Proposals are less likely to list those jobs where the customers weren't as satisfied. If you want higher scores, look first at the contracts referenced in the proposal. To do the opposite, ignore those, and instead search in a database like the NIH one for inferior ratings. An evaluator can also help things along by making sure that favorable references respond to questionnaires.

And current law doesn't require more relevant contracts to have greater weight than less relevant ones. So the evaluator can dilute an excellent score from a very relevant reference by averaging it with worse scores from less relevant ones.

Additionally, the evaluator can boost or deflate a company's score by factoring in the evaluation of its proposed subcontractor. Including the sub is warranted when it will perform major aspects of the contract, another judgment call.

Another opportunity to skew the process comes when the evaluator concludes that a company has no relevant past performance. A company without relevant past performance gets a neutral evaluation. The regulations say it can't be evaluated 'favorably or unfavorably' on this factor. Thus, it is inferior to any company with any rating of 'good,' or better.

You get the picture. There are many ways to move a past performance score up or down. It's a lot easier than packing the technical review panel.

JosephJ. Petrillo is a lawyer with the Washington law firm of Petrillo & Powell. E-mail him at [email protected].

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