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FAR 15.305 (2) (ii) says "The Government shall consider this information, as well as information obtained from any other sources, when evaluating the offeror's past performance". IAW with this, they did nothing wrong. In all of my solicitations that include Past Performance as an evaluation factor, I state "The Government reserves the right to limit or expand the number of references it decides to contact and to contact references other than those provided by the offeror."

Read: Finlen Complex, Inc., B-288280, October 10, 2011

Thanks, both of those make sense! In United Marine International LLC File: B-281512 Date: February 22, 1999, the GAO states "The optional clause (52.212-2), which is to be used when FAR part 15 type procedures may be contemplated, that is "when the use of evaluation factors is appropriate", FAR 12.301( c ) was not included or incorporated. Is this saying that you should only use the clause if you're planning to use FAR Part 15? For example, if you're using LPTA as described in FAR 15.101-2, then you should include 52.212-2?

I have been researching FAR 52.212-2 and when to use it. According to the prescrption in FAR 12.301 ( c ), the Contracting Officer may use the clause when evlauation factors are appropriate. It also states that instead of 52.212-2, the Contracting Officer may include a similar provision containing all evaluation factors required by FAR 13.106, 14.2 or 15.3. My questions are: 1.) When would evaluation factors not be appropriate? 2.) What provisions are similar that contain evaluation factors in 13.106, 14.2 and 15.3? Thanks!

I don't know anything about the particluars of your acquisition, but does the following from FAR Part 2 definition for Commercial items help at all? I know SATCOM is used quite extensively in the commercial world and often there are minor differences in Military Satcom and Commercial SATCOM. (3) Any item that would satisfy a criterion expressed in paragraphs (1) or (2) of this definition, but for -- (i) Modifications of a type customarily available in the commercial marketplace; or (ii) Minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements. Minor modifications means modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component, or change the purpose of a process. Factors to be considered in determining whether a modification is minor include the value and size of the modification and the comparative value and size of the final product. Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is minor; Here are a couple of links comparing military and commercial SATCOM: http://www.fas.org/spp/military/docops/arm...ext/chap07b.htm http://www.fas.org/spp/military/docops/nav...rept/index.html

Since I'm sure the sarcasm was completely necessary to make your point, I won't take offense. No, legal review does not necessarily make something right. As for tailoring, in the true sense of the word, making changes to minimize something would be considered tailoring. However, in how tailoring is used in the FAR, you are correct in that simply not incorporting full text is not necessarily tailoring. We do not include either clause in full text. As for FAR 52.212-5, we only include the applicable clauses in solicitations and delete all all unchecked clauses. Is that considered tailoring? I guess it depends on who you ask...

We do tailor 52.212-5 and 52.212-3. We had legal review and they agreed that if we met the requirements of 52.102©, it could be tailored.