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Thomas Warren

Negative Past Performance Information Submitted By a Competitor - Discretion to Ignore?

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All are likely well aware of the GAO's "too close at hand to ignore" rule, which carves out a narrow exception to the general rule that an agency's past performance evaluation is a matter within its discretion that will not be questioned unless it is unreasonable or inconsistent with the terms of the solicitation or applicable statutes and regulations. See, e.g., Continental RPVs, B-292768.2, B-292768.3, Dec. 11, 2003, 2004 CPD ? 56. The GAO has recognized that in certain "limited circumstances" an agency has an obligation, as opposed to the discretion, to consider outside information bearing on an offeror?s past performance "as where the information in question was simply too close at hand to require offerors to shoulder the inequities that spring from an agency?s failure to obtain, and consider, the information." See, e.g., Airwork Limited-Vinnell Corp., B- 285247, B- 285247.2, Aug. 8, 2000, 2000 CPD ? 50 at 8.

I'm curious what the experts think about a situation where an offeror learns the identity of one of its competitors and then submits negative past performance information about this competitor--information previously unknown to the agency and not the type of information that would be discovered during a normal past performance evaluation (e.g., a state or local contract of the same subject matter). Does the agency now have the obligation, as opposed to the discretion, to consider this information?

Does the analysis change if the information is submitted following close of proposals?

In general, does the FAR allow the practice of submitting negative information about a competitor (or likely competitor) if the soliciation does not specifically prohibit it? Would the Agency be forced to consider this information under the "too close at hand" doctrine?

The FAR seems pretty loose on the subject and the GAO appears to not have really grappled with it. Any insight would be appreciated.

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Thomas,

plan on being asked to provide input for the Agency Report that may be required, if the adverse information is overlooked and award is made to the offeror who has otherwise concealed his apparently unfavorable track record from your office.

If you are comfortable saying that the adverse information you saw was not credible, and you didn't bother to send an email to ask the relevant state agency about it, because it seemed so sketchy, that is your call.

But you now know that which has been alleged. We are out of the realm of "close at hand" and into the realm of personal knowledge or awareness, whether that knowledge (awareness) is accurate or not.

If the bidder who submitted the adverse information becomes a disappointed bidder, there's a good chance that they will not only go to the trouble of protesting, they may also also tell their attorney to win, regardless of whose feelings are hurt.

It's a little off the topic you raised, but check out the GAO report on so-called "frivolous" protests. It's on the WIFCON Front Page, issued 9 April.

Somewhere in the middle it says that the beauty of the current protest forum is that it enables bidders who think they've been treated unfairly to act as "little attorney generals."

The first line of defense against fraud or error in contracting is the professional contracting workforce. The second line is the professional management in contracting offices. But when those two fail, which is an unusual occurrence, the third line is the disappointed bidder.

.

NOTE: I am not an expert here; I've still got a lot to learn about contracting. The experts will weigh in tomorrow.

But if it were up to me, I'd check the info out. Then I'd let the contractor have a chance to explain it, just like a bad PPIRS report.

Past Performance is an important consideration, but it needs to be assessed as a whole, and one bad job needs to be taken in context.

In assessing performance risk, I think you are better off knowing more about your bidders, rather than less.

.

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I'm curious what the experts think about a situation where an offeror learns the identity of one of its competitors and then submits negative past performance information about this competitor--information previously unknown to the agency and not the type of information that would be discovered during a normal past performance evaluation (e.g., a state or local contract of the same subject matter). Does the agency now have the obligation, as opposed to the discretion, to consider this information?

Offerors frequently know (or suspect) who the competition is and can use this information in their proposal. It's so common there's actually a term for it, "ghosting." By ghosting, the offeror will highlight their solutions strengths while emphasizing their competitors weaknesses. It's not unlike the charts you see in commercial advertising for over-the-counter cold medicine. Our product takes care of these symptoms while the competitor's products don't.

The agency has the discretion to consider this information.

"Where a solicitation contemplates the evaluation of vendors? past performance, the agency has the discretion to determine the scope of the performance history to be considered, provided all quotations are evaluated on the same basis and the evaluation is consistent with the terms of the solicitation." Paragon Systems, Inc., B-299548.2

Have you confirmed that what the competitor submitted is factual? FAR 15.305(a)92)(i) states that the agency should also consider the source of the information and context of the data in the evaluation. The agency also has the obligation to permit that offeror an opportunity to respond to the negative past performance reference.

The best place to do the research on what works is this WIFCON site. Click on the contents tab and look up FAR Part 15. Scroll down to the past performance section and you'll see a summary of relevant case law.

Does the analysis change if the information is submitted following close of proposals?

FAR 15.305(a)(ii) states that the Government shall consider information obtained from any other source, but does not address timing. Presumably the evaluators are obtaining information on their own after the proposal submission deadline as well.

In general, does the FAR allow the practice of submitting negative information about a competitor (or likely competitor) if the soliciation does not specifically prohibit it? Would the Agency be forced to consider this information under the "too close at hand" doctrine? The FAR seems pretty loose on the subject and the GAO appears to not have really grappled with it. Any insight would be appreciated.

The FAR is loose on the subject to permit flexibility. The agency needs to do a little research to find the negative because offerors are only going to submit past performance information that shows their strengths. In order to find out negative information, you need to do some research and you can use other sources to get that information.

Hope this helps!

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Thanks, MGRumbaugh. I appreciate your insight. Your comments about "ghosting" are particularly interesting.

Let me see if I can throw a further factual kink into this to see if this changes any analysis. What if an offeror learns of the identity of a competitor via a FAR 15.503(a)(2) notification to small businesses? That section in the FAR requires the Agency to notify each offeror in writing prior to award regarding the name of the apparent awardee (for purposes of a size status challenge).

If the apparently unsuccessful offeror learns the identity of the apparent awardee and then uses this information to seek out negative past performance information about the apparent awardee (and submits this information to the Agency), would the Agency have to consider this information at this stage (requiring it to re-open the evaluation)? The obvious wrinkle here is that the evaluation has been "completed" but award has not yet been made. Is this information too close at hand to ignore and would the agency then have to go back and re-evaluate with this "new" information?

Of course, the apparent awardee is not privy to information about its competitors, so it seems like considering this information could give the unsuccessful offeror an unfair competitive advantage.

Any thoughts on this? Or would the advice remain the same?

Thanks again-

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Thomas,

The additional information changes the situation.

If the agency's evaluation is complete and identified the apparent successful offeror, then I would say the agency does not need to re-evaluate and consider the new information. If, however, the new information is serious enough to warrant cosideration, then the agency may do so. That's part of the flexibility the FAR provides.

If the agency considers the information, you must also consider the source: a disgruntled offeror.

Is this information factual? If you verify that it's true-- is it significant enough to overturn the award decision? The agency must also give the offeror an opportunity to respond to the negative past performance information. Maybe the offeror has addressed the issue and it won't happen again.

Make sure that whatever you do is consistent with the solicitation. If you go back and re-evaluate it needs to be consistent with the past performance evaluation criteria stated in the RFP and conducted with all other offerors.

How much time will this assessment take and will it impact the agency in any way? Is it worth the extra time to make sure the awardee is capable of performing?

There's always a risk of protest no matter which way you go with this. But protesting doesn't mean they'll win.

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Marge,

You are but the latest victim of that notorious species, the Wifcon information dribbler. You have my sympathies.

Here's my take:

1. An agency has no obligation to consider information about the successful offeror submitted by an unsuccessful offeror after the evaluation is complete, unless the information reveals that the successful offeror is not eligible for award.

2. An agency may initiate inquiries during proposal evaluation based on information about an offeror provided by a competitor, but may not accept the competitor's information at face value or evaluate the offeror based on that information alone.

3. An agency is not required to consider information about an offeror submitted by a competitor during proposal evaluation, unless the information is about something "close at hand" that the agency should have known about or should have discovered through reasonable inquiries.

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Marge,

You are but the latest victim of that notorious species, the Wifcon information dribbler. You have my sympathies.

Here's my take:

1. An agency has no obligation to consider information about the successful offeror submitted by an unsuccessful offeror after the evaluation is complete, unless the information reveals that the successful offeror is not eligible for award.

2. An agency may initiate inquiries during proposal evaluation based on information about an offeror provided by a competitor, but may not accept the competitor's information at face value or evaluate the offeror based on that information alone.

3. An agency is not required to consider information about an offeror submitted by a competitor during proposal evaluation, unless the information is about something "close at hand" that the agency should have known about or should have discovered through reasonable inquiries.

Vern,

Thanks for the sympathy.

I didn't say the agency was obligated to consider the information, but that they may do so if they wanted.

Nor did I suggest that they take the information submitted by a competitor at face value. I stated that they should consider the source and confirm the information.

Looks like we agree.

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Vern and Marge,

Thank you both for the information.

I was actually looking for insight on both scenarios--the general question of whether an agency is required to consider negative information from a competitor and the more specific question laid out in the second scenario. There is a dearth of case law for either scenario. If I appeared to be "dribbling" information, that is because I was. Since this is a website full of individuals with a wealth of knowledge on all matters of government contracting (and a voluntary response policy), I did not believe I was breaching wifcon etiquette. My sincerest apologies.

As for your points, Vern, they are certainly grounded in common sense. My only wish is that your point number 1 came with a case citation. Perhaps it will soon.

Regards,

Thomas

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Marge:

I understood your comments, and we agree.

Thomas:

Let's not wish for a case citation, since who knows what it will say. I think you'll be okay.

Vern

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Thomas,

The "too close at hand" rule applies when the agency has actual knowledge of an offeror's past performance, usually because the offeror is an incumbent contractor. When Offeror A alleges that Offeror B has performed poorly on a different contract, that does not make the agency knowledgeable of Offeror's B performance on that contract. All the agency knows is that Offeror A has alleged something, which the agency can pursue or disregard.

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