For companies trying to break into the government market for the first time, past performance can seem a bit like the old chicken-and-egg conundrum. Sometimes it can appear like a company can’t win a government contract without a strong record of past performance–but can’t build a past performance record without contracts! And with the government’s continued movement away from lowest-price, technically acceptable evaluations, past performance seems increasingly important.

But that doesn’t mean the government always has to consider past performance as an evaluation factor. Instead, as a recent GAO bid protest decision confirms, procuring agencies have broad discretion to omit past performance in appropriate cases.

GAO’s decision in Pathfinder Consultants, LLC, B-419509 (Mar. 15, 2021) involved a VA Request for Proposals seeking a contractor to provide communications strategies and support services. The RFP was issued as a commercial item acquisition under the procedures set forth in FAR Parts 12 and 15. The RFP stated that award would be made on a best-value tradeoff basis, considering just two factors: technical merit and price.

A potential bidder, Pathfinder Consultants, LLC, filed a pre-award bid protest with GAO, challenging the terms of the solicitation. Among its arguments, Pathfinder contended that it was unreasonable for the VA to decline to include past performance as an evaluation factor.

The GAO explained that, as a general matter, “[t]he determination of a contracting agency’s needs and the best method of accommodating them are matters primarily within the agency’s discretion.” Further, FAR 15.304(c)(3)(iii) provides that “[p]ast performance need not be evaluated if the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition.”

In this case, GAO held, the VA–acting within its considerable discretion–had properly documented the reasons why it was unnecessary to consider past performance:

Here, the VA documented its determination and adequately explained why it concluded that evaluating past performance was not appropriate for this solicitation. When drafting the solicitation, the VA noted that the types of communication services to be acquired were not particularly complex or difficult, and that therefore only assessing each offeror’s proposed technical approach would provide sufficient indication as to the likelihood of successful performance. Further, the VA explained that reviewing past performance information for communication services that are generally performed favorably was unnecessary and would not yield significant date for evaluative purposes. The protester has provided no basis for us to question the agency’s conclusion.

GAO denied Pathfinder’s protest.

As we’ve discussed on this blog, new entrants to the federal marketplace have options when it comes to past performance–like, in some cases, submitting past performance acquired as a member of a joint venture, or submitting the past performance of a subcontractor. But another strategy is to look for solicitations without past performance as an evaluation factor. As the Pathfinder Consultants case demonstrates, they’re out there, even in some services NAICS codes.

Need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.

Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.

View the full article