FAR 15.305(a)(2)(iv) and the Neutral Rating

[napolik]

Yesterday, the GAO issued the following decision: B-406729,B-406729.2, Sterling Medical Associates, Inc., August 8, 2012

http://www.gao.gov/products/B-406729,B-406729.2

The Sterling decision includes a discussion of the basis for the VA's conclusion that Sterling's past performance was "marginal". It is set forth in the final sentence of this paragraph from the decision:

Quote

The record also does not support Sterling's argument that it should have received a higher rating than marginal under the past performance factor. As noted above, the SSEC rated Sterling's past performance as marginal because Sterling failed to provide three past performance surveys as required by the RFP and to provide information that would allow the agency to assess the firm's past performance. Id. at 17-18. Sterling complains, however, that it made arrangements to have four past performance surveys submitted to VA and that these references had submitted their surveys by email to the agency. See Protester's Supp. Comments at 11. We find from review of the record that VA received two past performance surveys for Sterling (although the agency only evaluated one of these surveys).[7] VA denies receiving the other two, and our review of the record indicates that they were misaddressed. See id., exhib. 8, Emails, at 10, 15. Given that Sterling failed to submit the required number of surveys for its past performance and that Sterling did not specifically address the SSEC's conclusion that Sterling did not provide sufficient information to allow the evaluators to assess the firm's past performance, we have no basis to object to the marginal rating of its proposal under this factor.

Unquote

I am a bit confused because this basis seems to overlook the FAR discussion of the evaluation of past performance. Specifically, FAR 15.305(a)(2)(iv) says "In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance."

See also Herley Industries Inc., B-400736.2, January 15, 2009. The GAO seems to accept as a basis for a “neutral” rating the contractor’s failure to furnish past performance info required by the solicitation.

Quote

The RFP called for, but MSI did not provide, information on the reliability and timeliness of delivery of the equipment that was the subject of the supplemental past performance information offered in response to the concern raised during discussions. Because MSI failed to provide the information necessary to assess the past performance under these three contracts, we see no basis on which to question the reasonableness of the protester’s past performance rating of “neutral.”

Unquote

Can anyone reconcile the Sterling decision’s acceptance of the "marginal" rating for past performance with the FAR requirement not to evaluate the offeror favorably or unfavorably on past performance?

[C Culham]

"We find from review of the record that VA received two past performance surveys for Sterling (although the agency only evaluated one of these surveys)"

The above quote from the paragraph you have provided indicates to me that the contractor did submit past performance info ( 1 survey), and the VA evaluated it. It just wasn't the info that Sterling intended to provide (4 surveys). Does not seem in conflict with the FAR citation you have provided by my read. If no surveys had reached the VA and the VA still evaluated the firm as "marginal" that would be a different matter in my view.

[napolik]

"We find from review of the record that VA received two past performance surveys for Sterling (although the agency only evaluated one of these surveys)"

The above quote from the paragraph you have provided indicates to me that the contractor did submit past performance info ( 1 survey), and the VA evaluated it. It just wasn't the info that Sterling intended to provide (4 surveys). Does not seem in conflict with the FAR citation you have provided by my read. If no surveys had reached the VA and the VA still evaluated the firm as "marginal" that would be a different matter in my view.

Your view that the marginal rating is based upon an assessment of a single survey does not seem to be supported by the GAO's words:

"The record also does not support Sterling's argument that it should have received a higher rating than marginal under the past performance factor. As noted above, the SSEC rated Sterling's past performance as marginal because Sterling failed to provide three past performance surveys as required by the RFP and to provide information that would allow the agency to assess the firm's past performance. Id. at 17-18. Sterling complains, however, that it made arrangements to have four past performance surveys submitted to VA and that these references had submitted their surveys by email to the agency. See Protester's Supp. Comments at 11. We find from review of the record that VA received two past performance surveys for Sterling (although the agency only evaluated one of these surveys).[7] VA denies receiving the other two, and our review of the record indicates that they were misaddressed. See id., exhib. 8, Emails, at 10, 15. Given that Sterling failed to submit the required number of surveys for its past performance and that Sterling did not specifically address the SSEC's conclusion that Sterling did not provide sufficient information to allow the evaluators to assess the firm's past performance, we have no basis to object to the marginal rating of its proposal under this factor.”

Based upon the second "that" phrase in the final sentence, above, I suspect that the protestor's attorneys did not raise the FAR15.305(a)(2)(iv) argument.

[joel hoffman]

Can anyone reconcile the Sterling decision’s acceptance of the "marginal" rating for past performance with the FAR requirement not to evaluate the offeror favorably or unfavorably on past performance?

Yes - FAR15.305(a)(2) (iv) doesn't apply in this case.

"In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance. "

The firm has a record of past performance and it is available. Two of four records submitted were sent to the wrong address. The rule is intended for new firms without any past performance record, not for a situation where they simply dont provide it.

[Guest Vern Edwards]

The protester did not argue that it should have received a "neutral" rating. That issue does not appear to have been litigated. The protester argued that it should have received a rating higher than marginal. I agree with napolik and Joel except...

According to the decision, the agency rated the offeror's past performance as "marginal" because it did not provide the requested information. If the rating "marginal" was supposed to characterize the quality of the work that the offeror did in the past, then rating the firm as marginal because it did not submit required information seems inappropriate. This is an example of an agency not understanding the concepts of evaluation and scoring. If the agency did not get the information that would enable it to evaluate the offeror's past performance, then how could it characterize the offeror's past performance as marginal? Of course, it could be that marginal was defined in the RFP to include proposals that did not contain required information. I don't know, but I doubt it. I suspect that the agency had never considered what to do if it did not receive the information that it wanted. The evaluators probably called the CO and asked what they should do, and the CO probably said, "Just rate them as marginal," thinking that marginal was neither good nor bad. A better solution would have been to record that the past performance factor could not be rated because the offeror did not provide the requested information. The source selection authority could have taken that into account when making his or her decision. The offeror would not have been eligible for award.

The agency wasted time and money fighting this protest. Upon receiving the protest I would have put the protester in the competitive range and given it a chance to provide the missing info.