Bid protests Part III: Flawed past performance evaluations
Meticulous documentation of past success, leaning on conditions for special groups such as small business or minority business owners and utilizing a red team t...
In its first and second parts, this series has explored two of the principal bases for bid protests: flawed technical evaluations and unreasonable cost evaluations. These protests are not without similarities: both involve issues in which the government has significant discretion and the results typically favor the agency. Protests based on evaluations of past performance, another recurring protest theme, share these similarities.
These protests break down along obvious lines: The evaluation of an offeror’s past performance was unfairly critical or the evaluation of the awardee’s performance history was unduly positive. Based on my experience (which includes one protest in which an agency spent 18 hours on the stand defending its past performance conclusions), here are some pointers for those weighing their protest options in this area.
Read the RFP
Not surprisingly, the first and most critical piece of advice when dealing with Past Performance —as with virtually all potential protest issues — is “read the RFP.” In particular, sections L and M will indicate criteria such as size, scale and period of prior contracts offered for consideration. These sections also indicate the offeror’s role in the performance (e.g., prime contractor, subcontractor, system integrator, joint venture partner) and how that role aligns with the RFP’s evaluation of past performance. In a joint venture, it is key to pay particular attention to how the RFP describes the intended evaluation of joint ventures. Will the agency be considering the past performance of the individual co-venturers (positive or negative) or will it limit the evaluation to the past performance of the joint venture itself, in which case there is likely no past performance record and therefore no advantages accruing from any one co-venturer’s superlative prior performance.
Ask the right questions
If the past performance criteria are ambiguous, seek clarity before the initial offers are submitted. If they are disadvantageous, ask to have them modified. For example, if the RFP can be read to exclude consideration of the past performance of the individual co-venturers, confirm if that is the case and, if so, make the case for changing it.
Don’t overload your proposal with marginal prior contracts. Most RFPs allow for a range in terms of the number of contracts that can be submitted for evaluation (for example, a minimum of 3 and maximum of 5). Contractors have been known to lose when one of the “relevant” contracts offered had too many performance problems to explain away. While an agency may look at other relevant contracts, there is no need to “lead with your chin.”
… and correct where you can
Pay attention to the contractor performance assessment reports (CPARs) issued on your contracts in real time, not when the harmful CPARs emerge in a bid protest and require a rewrite of performance history. By addressing problems realistically and identifying curative measures, it is possible to eliminate any agency concern of systemic business system flaws. To do this effectively, maintain contemporaneous records of how CPARs problems were addressed and aim to have the CPARs updated with corrective actions before they become a part of a past performance evaluation.
These same considerations come into play when protesting the awardee’s past performance evaluation. Remember, many successful protests are grounded in the agency’s deviation from the stated evaluation criteria. If the awardee’s prior contracts do not meet the RFP definition of “relevant” or “highly relevant,” if one or more of the contracts falls outside the prescribed date range, if co-venturers are being given credit for prior performance that is precluded by the terms of the RFP, if the scale of highly rated prior contracts does not match the size, scope and requirements of the RFP, a successful protest may be possible. In a recently sustained protest, for example, the GAO ruled that the agency’s original evaluation was flawed because the awardee’s past performance references were smaller than the solicitation requirement. Look also for evidence of unequal treatment, e.g., evidence that the agency gave the awardee “pass” for prior issues where it assigned others a weakness or that it gave the awardee the same grade despite objectively provable CPARs differences in respective.
Meticulous documentation of past success, leaning on conditions for special groups such as small business or minority business owners and utilizing a red team to review both your and competition’s likely submissions are all ways to identify the right arguments for a successful protest based on a flawed past performance evaluation. While there is no one-size-fits-all approach to mount a successful challenge, following these guidelines are useful steps towards a favorable ruling.
John Chierichella is the founder ofChierichella Procurement Strategies, a consultancy helping contractors pursue and perform Federal contracts and subcontracts.
Bid protests Part III: Flawed past performance evaluations
Meticulous documentation of past success, leaning on conditions for special groups such as small business or minority business owners and utilizing a red team t...
In its first and second parts, this series has explored two of the principal bases for bid protests: flawed technical evaluations and unreasonable cost evaluations. These protests are not without similarities: both involve issues in which the government has significant discretion and the results typically favor the agency. Protests based on evaluations of past performance, another recurring protest theme, share these similarities.
These protests break down along obvious lines: The evaluation of an offeror’s past performance was unfairly critical or the evaluation of the awardee’s performance history was unduly positive. Based on my experience (which includes one protest in which an agency spent 18 hours on the stand defending its past performance conclusions), here are some pointers for those weighing their protest options in this area.
Read the RFP
Not surprisingly, the first and most critical piece of advice when dealing with Past Performance —as with virtually all potential protest issues — is “read the RFP.” In particular, sections L and M will indicate criteria such as size, scale and period of prior contracts offered for consideration. These sections also indicate the offeror’s role in the performance (e.g., prime contractor, subcontractor, system integrator, joint venture partner) and how that role aligns with the RFP’s evaluation of past performance. In a joint venture, it is key to pay particular attention to how the RFP describes the intended evaluation of joint ventures. Will the agency be considering the past performance of the individual co-venturers (positive or negative) or will it limit the evaluation to the past performance of the joint venture itself, in which case there is likely no past performance record and therefore no advantages accruing from any one co-venturer’s superlative prior performance.
Ask the right questions
If the past performance criteria are ambiguous, seek clarity before the initial offers are submitted. If they are disadvantageous, ask to have them modified. For example, if the RFP can be read to exclude consideration of the past performance of the individual co-venturers, confirm if that is the case and, if so, make the case for changing it.
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Don’t overload your proposal with marginal prior contracts. Most RFPs allow for a range in terms of the number of contracts that can be submitted for evaluation (for example, a minimum of 3 and maximum of 5). Contractors have been known to lose when one of the “relevant” contracts offered had too many performance problems to explain away. While an agency may look at other relevant contracts, there is no need to “lead with your chin.”
… and correct where you can
Pay attention to the contractor performance assessment reports (CPARs) issued on your contracts in real time, not when the harmful CPARs emerge in a bid protest and require a rewrite of performance history. By addressing problems realistically and identifying curative measures, it is possible to eliminate any agency concern of systemic business system flaws. To do this effectively, maintain contemporaneous records of how CPARs problems were addressed and aim to have the CPARs updated with corrective actions before they become a part of a past performance evaluation.
These same considerations come into play when protesting the awardee’s past performance evaluation. Remember, many successful protests are grounded in the agency’s deviation from the stated evaluation criteria. If the awardee’s prior contracts do not meet the RFP definition of “relevant” or “highly relevant,” if one or more of the contracts falls outside the prescribed date range, if co-venturers are being given credit for prior performance that is precluded by the terms of the RFP, if the scale of highly rated prior contracts does not match the size, scope and requirements of the RFP, a successful protest may be possible. In a recently sustained protest, for example, the GAO ruled that the agency’s original evaluation was flawed because the awardee’s past performance references were smaller than the solicitation requirement. Look also for evidence of unequal treatment, e.g., evidence that the agency gave the awardee “pass” for prior issues where it assigned others a weakness or that it gave the awardee the same grade despite objectively provable CPARs differences in respective.
Meticulous documentation of past success, leaning on conditions for special groups such as small business or minority business owners and utilizing a red team to review both your and competition’s likely submissions are all ways to identify the right arguments for a successful protest based on a flawed past performance evaluation. While there is no one-size-fits-all approach to mount a successful challenge, following these guidelines are useful steps towards a favorable ruling.
John Chierichella is the founder of Chierichella Procurement Strategies, a consultancy helping contractors pursue and perform Federal contracts and subcontracts.
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