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Past Performance: Does Duration Matter?

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Koprince Law LLC

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Past performance evaluations normally consider two aspects of an offeror’s prior work: whether that performance was recent and relevant. But in making its best value determination, must an agency also consider the duration of an offeror’s past performance?

A recent GAO bid protest decision answered this question, at least under the rules established in the solicitation at hand. In Technica LLC, B-413546.4 et al. (July 10, 2017), GAO denied a protest challenging the sufficiency of an awardee’s past performance even though the awardee’s past performance was much shorter than the protester’s.

At issue in the protest was a solicitation seeking logistics support services at the United States Military Academy at West Point from holders of the Enhanced Army Global Logistics Enterprise (EAGLE) basic ordering agreement. The Army would award a task order to the lowest-price offeror whose proposal was technically acceptable and whose past performance instilled substantial confidence.

The Army originally awarded the order to Technica, for almost $47 million. Akima Support Operations, LLC—whose total evaluated price was about $1.5 million less than Technica’s—protested the award, asserting that the Army erred by not considering Akima’s work under a task order at Fort Carson, Colorado in its past performance evaluation. The Army took corrective action in response to Akima’s protest.

After re-evaluating Akima’s proposal (and considering its work at Fort Carson), the Army assigned it a substantial confidence past performance rating and awarded it the contract.

Technica then filed its own protest, saying that the Army’s consideration of Akima’s Fort Carson work was unreasonable. It based this argument on the relatively short duration of that contract—Akima had been performing at Fort Carson for less than one year at the time it was awarded the West Point task order. According to Technica, this short duration meant that the Army should have given less weight to Akima’s work at Fort Carson.

GAO disagreed. In doing so, it noted that an agency has the discretion to consider the relevance and scope of an offeror’s past performance and, “[a]bsent a relevant solicitation provision, there is no minimum duration requirement that an offeror’s past performance reference must meet before performance of that requirement may be considered in the agency’s past performance evaluation.” Here, the GAO noted that “the RFP advised offerors that the past performance evaluation could consider the recency, relevancy, source, and context of the past performance information that the government evaluates,” and that the Army reserved the right to even consider information about past performance that occurred after proposals were due. “As such,” the GAO concluded, “the RFP contained no minimum duration requirement for an offeror’s past performance.”

Under this backdrop, GAO found the Army’s past performance evaluation to be reasonable. As required by the solicitation, the Army considered a past performance questionnaire for the Fort Carson project that rated Akima’s performance as very good. Moreover, the Army noted that Akima had completed deadlines sooner than required, “executed the schedule flawlessly, taken on additional work,” and performed in a manner that “reduced the government’s costs.”

Based on this feedback, the Army properly assigned Akima’s past performance a substantial confidence rating. The GAO denied Technica’s protest.

The Technica decision is interesting: in some cases, it means that an offeror with relatively little past performance (say, one or two projects of short duration) might be evaluated as instilling more confidence than an established contractor. Experienced and inexperienced contractors alike should keep this decision in mind when preparing their past performance proposals.


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