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Can a KO, after he has awarded a contract to a firm, re-evaluate the firm's past performance based simply on the request of another firm?

A service contract has awarded in writing to firm A. The RFQ provided for best value trade off. Past performance was one of the evaluation factors. RFQ requested that quoters provided a minimum of 3 maximum 5 past performance information of contracts similar to the service requested. 

Company A provided 5 recent and relevant contracts for an amount well above the requested service. 

Based on the information obtained by the customers of the 5 contracts on how company A had or was performing, the KO gave to company A the maximum score to its past performance factor. 

After the award, company B wrote to the KO saying that company A should not have got the maximum score because it had performed other similar services in a non satisfactory manner and provided clear and documented evidence of this.

Question: The KO was unaware of this additional information at the time of the award. He based his assessment on the information received from the customers of the 5 contracts. Can company B ask and get the KO to re-evaluate the past performance of company A?

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The award has been made, right?  

If company B objects to the award, it may file a protest against the award.  See FAR subpart 33.1, Protests.

If the Government feels it was defrauded by company A, it may have remedies available such as the common law right of avoidance, rescission, or cancellation.

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The contract is awarded. 

Is the stated evaluation criteria for past performance strictly limited to the submitted projects or was it stated more broadly ?  It would be foolish to limit it only to the cherry picked list that a proposer provides.

If it is indeed limited to those specific projects, then there might not be any basis for company B to challenge or protest the award.

As for the mechanics - company B can’t “get” the KO to re-evaluate company A. If there are grounds for a Protest, then company A can protest the award.

When I asked for specific project information, it was primarily to identify recent, relevant company EXPERIENCE.  We would also evaluate the quality (performance) of that project experience - as a PARTIAL evaluation of recent Past Performance,  and tie it to the relativity of the experience. We would also reserve the right to evaluate other sources of past performance ratings, including the CPARS or other sources, such as personal knowledge of projects performed, interviews with customers on the submitted projects, etc. But if the government boxes itself in to the submitted projects, then it has limited the evaluation to that Universe. 

 

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First of all, thank you for the replies.

The contract was awarded 1 week ago. Firm A has absolutely not defrauded the GVT; she simply chose 5 recent and relevant projects where she had worked very well and was therefore sure of having good references.

The RFQ stated that the KO had the right to obtain other information regarding the past performance of the quoters without limiting himself to the projects presented. However, he had the right but no obligation to do so.

I am convinced that Company B can make a protest to either the agency or the GAO but what would the GAO or the agency say?

The KO did not have the additional information that Company B gave him when he awarded the contract. I’m of the opinion that the GAO or the agency would not re-evaluate the past information assessment but only verify whether the KO has assessed the past performance IAW the terms of the RFQ and based on the material and information in its possession at the time of the award of the contract. But I could be wrong and so I'm asking your opinion on this forum.

No KO can know all the past performances of a firm. Each company has its own skeleton inside the wardrobe. So the KO should become an investigator otherwise every company in theory would have the possibility to report the bad past performances of the awardee to the KO or file a protest because the KO failed to consider other information. So doing, it would be a never ending story. A protest after a protest. 

Am I saying something that makes sense or am I on the wrong track?

Thanks again for the help.

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Rodolfo,

Sometimes, where one stands depends on where one sits.  Are you company B, thinking about whether a protest would be worthwhile?  Or are you the contracting officer, worrying about whether a protest is coming?  Or someone else?

I think your assessment of how the GAO might approach the matter in a protest is reasonable.  Of course, it would depend on what company B actually alleges in its protest.

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2 minutes ago, ji20874 said:

Rodolfo,

Sometimes, where one stands depends on where one sits.  Are you company B, thinking about whether a protest would be worthwhile?  Or are you the contracting officer, worrying about whether a protest is coming?  Or someone else?

I think your assessment of how the GAO might approach the matter in a protest is reasonable.  Of course, it would depend on what company B actually alleges in its protest.

Concur.

 

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8 hours ago, Rodolfo said:

The RFQ provided for best value trade off.

I appreciate all the comments but this quote in the OP's original post makes me go Hmmmmmm with regard to GAO, protests, procedures, etc. etc.    Seems the agency has created their own dilemma at the get go!  Just saying!

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No KO can know all the past performances of a firm. Each company has its own skeleton inside the wardrobe. So the KO should become an investigator otherwise every company in theory would have the possibility to report the bad past performances of the awardee to the KO or file a protest because the KO failed to consider other information. So doing, it would be a never ending story. A protest after a protest. 

This is one big sore point with me personally.  The concept of evaluating past performance as originally envisioned was excellent.  Then then the risk adverse, lawyer driven nature of the procurement process kicked in.  Now all that’s considered are hand picked references provided by offerors and CPARS.  Agencies are even afraid to ask references information so they resort to written questionnaires.

COs are either too scared or too lazy to dig into sources and ask pertinent questions.  Lawyers even say if you verbally ask questions be sure to ask the same to everyone!  

Doing the job right isn’t difficult.  Look in FPDS for their contracts, check trade journals, look at company reports, etc.  if you use company provided references, ask them what other customers they are aware of.  For many commercial products lots of data exists about customer feedback.  For major buys, it’s often worth trips to visit customers and ask those probing questions face-to face.  

If COs would apply the same diligence to checking performance of personal expenditures like buying a new vehicle or home remodeling, past performance on contract awards might be much better.
 

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14 hours ago, Rodolfo said:

The KO did not have the additional information that Company B gave him when he awarded the contract. I’m of the opinion that the GAO or the agency would not re-evaluate the past information assessment but only verify whether the KO has assessed the past performance IAW the terms of the RFQ and based on the material and information in its possession at the time of the award of the contract. But I could be wrong and so I'm asking your opinion on this forum.

The KO is also required to make a responsibility determination IAW FAR 9.105 , etc. before awarding the contract. If the information that firm B provided is something that a diligent preaward responsibility determination would have revealed, then I think that the KO probably should have taken that into consideration in the PP evaluation and rating.

However, if it wasn’t otherwise available or wasn’t something which should have been known at the time, I have doubts that firm B would prevail in a protest forum.

As for evaluating past performance I tend to agree with what formerfed said.

6 hours ago, formerfed said:

This is one big sore point with me personally.  The concept of evaluating past performance as originally envisioned was excellent.  Then then the risk adverse, lawyer driven nature of the procurement process kicked in.  Now all that’s considered are hand picked references provided by offerors and CPARS.  Agencies are even afraid to ask references information so they resort to written questionnaires.

I despised responding to questionnaires as a reference. Especially repeatedly for the same contract from the same or multiple agencies. Quickly got to the point where I ignored the requests or threw them away. I’d  respond to a telephonic interview request.

 I agree with the construction industry that agencies should develop and maintain a database for these reference questionnaires instead of putting the administrative burden on the industry and their references. I never included a requirement for written reference questionnaires. We WERE interested in evaluating successful recent, relevant experience, using a standardized form.

In addition to information regarding the Project and the firm’s role and responsibilities on it, the form asked for the customer’s performance rating, where known, asked for a reference contact and reserved the right to contact the reference for verification if deemed necessary. If we already knew the information, we didn’t contact the reference. Otherwise, we called and conducted (and documented) a short, standardized interview. Those were amazingly informative and effective.

The rating and reference info was used for the relevancy of experience under that factor and in the evaluation of the past performance factor.

That info also fits well with the current DOD confidence rating method. 

I agree with formerfed’s assessment in his post. I don’t think that our agency was afraid to ask references information... It was too much work for them and they had to “talk” to a human...

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On 9/9/2020 at 11:28 AM, joel hoffman said:

The KO is also required to make a responsibility determination IAW FAR 9.105 , etc. before awarding the contract. If the information that firm B provided is something that a diligent preaward responsibility determination would have revealed, then I think that the KO probably should have taken that into consideration in the PP evaluation and rating.

However, if it wasn’t otherwise available or wasn’t something which should have been known at the time, I have doubts that firm B would prevail in a protest forum.

As for evaluating past performance I tend to agree with what formerfed said.

I despised responding to questionnaires as a reference. Especially repeatedly for the same contract from the same or multiple agencies. Quickly got to the point where I ignored the requests or threw them away. I’d  respond to a telephonic interview request.

 I agree with the construction industry that agencies should develop and maintain a database for these reference questionnaires instead of putting the administrative burden on the industry and their references. I never included a requirement for written reference questionnaires. We WERE interested in evaluating successful recent, relevant experience, using a standardized form.

In addition to information regarding the Project and the firm’s role and responsibilities on it, the form asked for the customer’s performance rating, where known, asked for a reference contact and reserved the right to contact the reference for verification if deemed necessary. If we already knew the information, we didn’t contact the reference. Otherwise, we called and conducted (and documented) a short, standardized interview. Those were amazingly informative and effective.

The rating and reference info was used for the relevancy of experience under that factor and in the evaluation of the past performance factor.

That info also fits well with the current DOD confidence rating method. 

I agree with formerfed’s assessment in his post. I don’t think that our agency was afraid to ask references information... It was too much work for them and they had to “talk” to a human...

This is what at the end has happened.

No company made a protest to the award to firm A. However, the requiring activity produced additional information about company A adverse past performance information that the KO was not aware of it when he made the award. The KO, based on this additional documentation received AFTER AWARD, has decided to re-evaluated the past performance of firm A from substantial to satisfactory and, being firm A no longer the best value for the Government, has T4C the contract with A. KO justified this stating that the government has the unilateral right right to change the evaluation scores also after the award of a contract and then go to another offeror. KO stated that each offeror, after an award has made to anothe offeror, has the right to discredit the awardee and if what it alleges is true, he, the KO, will terminate also the second award, the third as so on. I never hear of this way to do contracting. Have I missed something since I left the office? I have done many reserches but I cannot find any case similar to this (re-evaluate the scores after award using new documentation not at hand when award was made but provided by somebody else after award). Your opinion? Thanks

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I’m just curious whether the KO could have discovered this information during a diligent pre-award responsibility determination review...

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He might but the point is this: does the GVT have the right to re-evaluate using new documentation after an award? I know that it can T4C the contract, but not re-evaluate the past performance. Am I wrong? 

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Rodolfo,

You might need an attorney's opinion.  It might be that the offers on the table died when the award was made and those unsuccessful offerors received their debriefings (if applicable) -- if so, maybe the agency needs to conduct a new acquisition to meet the need.

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Rudy,

Tough question.  Ji20874 brings up good points too.  It’s not uncommon for agencies to re-evaluate proposals after award when possible mistakes are uncovered.  Generally It happens when the government discovered they erred in evaluating what proposals said.  It doesn't involve consideration of supplemental information outside what was in the offer normally.

Here the KO didn’t do complete due diligence in conducting past performance even when the solicitation said it could. That’s a weak argument to me. 

It might be difficult to justify cancellation when the past performance rating dropped to satisfactory and not lower plus the termination costs for the awardee.  I would not want to be the attorney supporting this

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Rudy, does the adverse information concern recent contract performance (see 42.1503 (g) or other period described in the solicitation for the contract in question)? There may be limits on the relevancy of past performance information.

 

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18 hours ago, Rodolfo said:

He might but the point is this: does the GVT have the right to re-evaluate using new documentation after an award? I know that it can T4C the contract, but not re-evaluate the past performance. Am I wrong? 

The CO on behalf of the government can terminate a contract for convenience when it is in the best interest of the government.  The bar for establishing a "bad faith" termination is high.  Take for example this statement from the CBCA as found in https://cbca.gov/files/decisions/2016/SULLIVAN_05-17-16_5083__UNIVERSAL_HOME_HEALTH_AND_INDUSTRIAL_SUPPLIES_INC.pdf

"Generally, the contracting officer may terminate a contract for convenience without cause whenever it is determined to be in the Government’s best interest. FAR 52.212-4(l) (“The Government reserves the right to termination this contract, or any part hereof, at its sole convenience.”); Corners & Edges, Inc. v. Department of Health & Human Services, CBCA 693 et al., 08-2 BCA ¶ 33,961, at 168,022 (“[t]he termination for convenience clause grants the contracting officer exceptional authority.”) A termination for convenience will only be a breach of contract if “the tribunal finds that the termination was motivated by bad faith or constituted an abuse of discretion, or that the Government entered into the contract with no intention of fulfilling its promises.” Greenlee Construction, Inc. v. General Services Administration, CBCA 415 et al., 07-2 BCA ¶ 33,619, at 166,510. “In the absence of bad faith or clear abuse of discretion, the contracting officer’s election to terminate for the government’s convenience is conclusive.” T&M Distributors, Inc. v. United States, 185 F.3d 1279, 1283 (Fed. Cir. 1999)."

 

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Something else for the contracting officer to consider:  adverse past performance information to which an offeror has not had an opportunity to respond generally cannot be used in a tradeoff evaluation or selection process -- see FAR 15.306(a)(2), 15.306(b)(4), and 15.306(d)(3).  

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The Government can TFC but if it does so based upon newly discovered adverse information and selects another firm, you might have grounds for a protest. 

If the information isn’t recent, it might not be relevant, depending upon what,  if anything, the solicitation stated. If not stated ,  time frames mentioned in the FAR might  be significant. And see ji’s post above.

Just some thoughts to consider when consulting with an attorney familiar with US acquisitions. 

 

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5 hours ago, ji20874 said:

Something else for the contracting officer to consider:  adverse past performance information to which an offeror has not had an opportunity to respond generally cannot be used in a tradeoff evaluation or selection process -- see FAR 15.306(a)(2), 15.306(b)(4), and 15.306(d)(3).  

This is not "generally" true, unless you consider award without discussions to be an "exception". When awarding without discussions, the contracting officer may use adverse past performance information to which an offeror has not had an opportunity to respond as long as there's no reason to question its validity. From Competitive Negotiation:

Quote

The provision in FAR 15.306 (a)(2) that offerors "may" be given an opportunity to comment on adverse past performance information is permissive and, hence, a contracting officer may award without discussions to another offeror without obtaining such comments, NMS Mgmt., Inc., Comp. Gen. Dec., B-286335, 2000 CPD ¶ 197; U.S. Constructors, Inc., Comp. Gen. Dec. B-282776, 99-2 CPD ¶ 14; Inland Servs. Corp., Comp. Gen. Dec. B-282272, 99-1 CPD ¶ 113; Rohmann Servs., Inc., Comp. Gen. Dec. B-280154.2, 98-2 CPD ¶ 134. See A.G. Cullen Constr., Inc., Comp. Gen. Dec. B-284049.2, 2000 CPD ¶ 45, holding that clarifications would be required in this situation if it was an abuse of discretion to fail to seek the offeror's comments, as follows:

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With regard specifically to clarifications concerning adverse past performance information to which the offeror has not previously had an opportunity to respond, we think that, for the exercise of discretion to be reasonable, the contracting officer must give the offeror an opportunity to respond where there clearly is a reason to question the validity of the past performance information, for example, where there are obvious inconsistencies between a reference's narrative comments and the actual ratings the reference gives the offeror. In the absence of such a clear basis to question the past performance information, we think that, short of acting in bad faith, the contracting officer reasonably may decide not to ask for clarifications.

 

 

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32 minutes ago, Don Mansfield said:

When awarding without discussions, the contracting officer may use adverse past performance information to which an offeror has not had an opportunity to respond...

Good point.

In such a case, I hope the contracting officer will not rely on past performance as THE reason for non-selection.

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