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I have a slightly odd question.  I could not find any information in the MAS Desk Reference or on any GSA blogs.   Situation:   an agency plans to issue a T&M order under GSA MAS for a small business set aside project management services.   The agency wants to use past performance information in evaluation criteria for a confidence rating and is looking for past performance on a comparable scope of work, in a comparable environment (overseas) comparable magnitude (over $10MIL).    A GSA MAS holder which is a small business is interested in submitting an offer, but it does not have past performance of the comparable magnitude contracts.  It has done this work before successfully, but well below $10MIL contract.    The small business wants to subcontract part of the work to a large business which has relevant past performance.    Would they agency have to consider the past performance of a subcontractor under a MAS Order?    This is not a CTA arrangement.  The small business plans to use a large business to perform part of the work and the large business agreed to work within the small business GSA MAS rates.  

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The contracting officer for that procurement will have to answer your questions.

In my practice, I prefer not to evaluate the experience of proposed subcontractors -- or, in other words, I prefer evaluating the experience only of the proposed prime contractor (this might include experience in managing major subcontractors).  Some other contracting officers seem eager to evaluate experience of proposed subcontractors.

And, in my practice, I do not like to set rigid "comparable magnitude" definitions -- rather, I prefer to give more confidence to comparable experiences that are more similar to the agency need, and less confidence to experiences that are less similar.  Some other contracting officers seem eager to use rigid eligibility or go/no go approaches.

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37 minutes ago, ji20874 said:

The contracting officer for that procurement will have to answer your questions.

In my practice, I prefer not to evaluate the experience of proposed subcontractors -- or, in other words, I prefer evaluating the experience only of the proposed prime contractor (this might include experience in managing major subcontractors).  Some other contracting officers seem eager to evaluate experience of proposed subcontractors.

And, in my practice, I do not like to set rigid "comparable magnitude" definitions -- rather, I prefer to give more confidence to comparable experiences that are more similar to the agency need, and less confidence to experiences that are less similar.  Some other contracting officers seem eager to use rigid eligibility or go/no go approaches.

Thank you!  So to your knowledge there is no specific prohibition, just a CO preference?

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3 hours ago, Tzarina of Compliance said:

Would they agency have to consider the past performance of a subcontractor under a MAS Order?

Are you saying that you want to evaluate the past performance of a proposed subcontractor based on their past performance as a prime contractor?   

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The past performance of the prospective prime as it relates to managing a sub who has critical experience seems more relevant.  Good work can be undone by poor management. 

(Edit: I have first-hand experience with this scenario. A SB prime operating way outside their wheelhouse brought us in as a sub/SME and then proceeded to delay & butcher everything that went to the government because they believed their ISO 9000 certification and CEO's background in jewelry design qualified them to do so. These guys were so clueless their PM 'reported' me for failing to attend their internal career development training despite the fact I didn't even work for them 🙄)

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3 hours ago, Tzarina of Compliance said:

So to your knowledge there is no specific prohibition, just a CO preference?

I am unaware of either a requirement or a prohibition regarding the evaluation of proposed subcontractors.  For reference, FAR 15.305(a)(2)(iii) uses the word "should...when...," not "shall...when..."  But for me, I would rather evaluate the proposed prime contractor's past performance in managing major subcontractors.

I am unaware of either a requirement or a prohibition regarding rigid "comparable magnitude" definitions.  I don't like rigid "comparable magnitude" definitions because they may limit competition to firms who "pass" the definition and may otherwise lessen a contracting officer's flexibility.  I prefer to determine relevance after seeing the facts and the context, rather than before.

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5 hours ago, Tzarina of Compliance said:

Situation:   an agency plans to issue a T&M order under GSA MAS for a small business set aside project management services.   The agency wants to use past performance information in evaluation criteria for a confidence rating and is looking for past performance on a comparable scope of work, in a comparable environment (overseas) comparable magnitude (over $10MIL).    A GSA MAS holder which is a small business is interested in submitting an offer, but it does not have past performance of the comparable magnitude contracts.  It has done this work before successfully, but well below $10MIL contract.    The small business wants to subcontract part of the work to a large business which has relevant past performance.    Would they agency have to consider the past performance of a subcontractor under a MAS Order?  

Emphasis added.

1 hour ago, REA'n Maker said:

Are you saying that you want to evaluate the past performance of a proposed subcontractor based on their past performance as a prime contractor? 

 

1 hour ago, Tzarina of Compliance said:

yes

@Tzarina of ComplianceGee whiz, let's get it straight, shall we? What's the question: Do we have to? or Can we?

A MAS order would presumably be made pursuant to FAR Section 8.405. Presumably, 8.405-2. FAR 15.305(a)(2)(iii) is inapplicable. FAR 8.405-2(c) says you can evaluate experience and past performance.

In short, Your Majesty, do as you please. You can evaluate the subcontractor's past performance. Or not.

And let's work on our question-asking, Ma'am. ❤️

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1 hour ago, Vern Edwards said:

Emphasis added.

 

@Tzarina of ComplianceGee whiz, let's get it straight, shall we? What's the question: Do we have to? or Can we?

A MAS order would presumably be made pursuant to FAR Section 8.405. Presumably, 8.405-2. FAR 15.305(a)(2)(iii) is inapplicable. FAR 8.405-2(c) says you can evaluate experience and past performance.

In short, Your Majesty, do as you please. You can evaluate the subcontractor's past performance. Or not.

And let's work on our question-asking, Ma'am. ❤️

Will, do, oh the Wise One! Part of my new year's resolution is to ask a question on Wifcon that you will approve of 🙂.  Happy New Year and Thank you!  The question was meant to read:  If a prime small business GSA MAS holder proposes a large subcontractor's past performance to meet certain PP requirements under a MAS Order RFQ (FAR 8.405), must the CO consider such subcontractor's PP?   The RFQ simply says relevant PP will be considered in a risk/confidence evaluation and defines what PP is considered relevant - contracts of certain value, performed under similar circumstances in the last 3 years.    I appreciate that the small business should be asking a question of the CO to see if the subcontractor's PP would be considered.    But if the small business did not ask the question and submitted PP of its subcontractor, can the CO assign a neutral rating - i.e. not consider subcontractor past performance as relevant?  I am keeping my fingers crossed in hopes that you will not hate the revised question 🙂

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13 hours ago, Tzarina of Compliance said:

The question was meant to read:  If a prime small business GSA MAS holder proposes a large subcontractor's past performance to meet certain PP requirements under a MAS Order RFQ (FAR 8.405), must the CO consider such subcontractor's PP?   The RFQ simply says relevant PP will be considered in a risk/confidence evaluation and defines what PP is considered relevant - contracts of certain value, performed under similar circumstances in the last 3 years.    

@Tzarina of ComplianceNow that is an interesting question.🙂 Unfortunately, it is one that the FAR does not answer directly in connection with FSS MAS orders. I don't have a ready answer for you.

I think that the answer probably depends on the language of the MAS RFQ. The key question is whether it was reasonable for the quoter to think that the government would consider subcontractor past performance when assessing the quoter's qualifications?

Does the RFQ mention subcontractors? Does the RFQ mention evaluation of subcontractors? Does it request references for subcontractors? Does it allude to subcontractors in connection with offeror qualifications? Does it mention FAR Section 15.305? The CO must look closely at the RFQ language, because that is what the GAO or the COFC will do if a quoter files a protest about subcontractor past performance, either because the government did or did not evaluate it.

If the RFP does not mention the past performance of subcontractors, then the government might get away with not considering a sub's past performance. But it's an iffy matter. Ideally, the government should have thought about subcontractors when it issued its RFQ and said something about subcontractor past performance one way or the other. See CSI Aviation, Inc., GAO Dec. B-415631, Feb. 7, 2018, which suggests that the government's consideration of subcontractor past performance without saying that it would might be a problem.

If the government has any doubts about the clarity of its RFQ in this matter, it should consider amending the RFQ to clarify its stance before making a decision. Better safe than sorry.

That's the best I can do. Maybe someone else knows something that I don't.

 

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8 minutes ago, Vern Edwards said:

@Tzarina of ComplianceNow that is an interesting question.🙂 Unfortunately, it is one that the FAR does not answer directly in connection with FSS MAS orders. I don't have a ready answer for you.

I think that the answer probably depends on the language of the MAS RFQ. The key question is whether it was reasonable for the quoter to think that the government would consider subcontractor past performance when assessing the quoter's qualifications?

Does the RFQ mention subcontractors? Does the RFQ mention evaluation of subcontractors? Does it request references for subcontractors? Does it allude to subcontractors in connection with offeror qualifications? Does it mention FAR Section 15.305? The CO must look closely at the RFQ language, because that is what the GAO or the COFC will do if a quoter files a protest about subcontractor past performance, either because the government did or did not evaluate it.

If the RFP does not mention the past performance of subcontractors, then the government might get away with not considering a sub's past performance. But it's an iffy matter. Ideally, the government should have thought about subcontractors when it issued its RFQ and said something about subcontractor past performance one way or the other. See CSI Aviation, Inc., GAO Dec. B-415631, Feb. 7, 2018, which suggests that the government's consideration of subcontractor past performance without saying that it would might be a problem.

If the government has any doubts about the clarity of its RFQ in this matter, it should consider amending the RFQ to clarify its stance on the matter before making a decision. Better safe than sorry.

That's the best I can do. Maybe someone else knows something that I don't.

 

Very very interesting.  Thank you for food for thought on this....   I just saw your Solzhenitsyn quote and wow, I can totally see why you would like it ❤️ 

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11 hours ago, Tzarina of Compliance said:

I have a slightly odd question.

"Protest that agency was required to consider proposed subcontractor’s past performance is denied where solicitation is conducted under Federal Acquisition Regulation part 8, and where the solicitation only requested past performance information for the “offerors.” "

https://www.gao.gov/products/b-413901%2Cb-413901.2

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8 hours ago, C Culham said:

"Protest that agency was required to consider proposed subcontractor’s past performance is denied where solicitation is conducted under Federal Acquisition Regulation part 8, and where the solicitation only requested past performance information for the “offerors.”

Atlantic Systems Group, Inc., GAO B-413901, January 9, 2017.

That's a good decision, but the pertinent part is in three paragraphs.

Quote

ASG first asserts that the agency improperly failed to consider the experience/past performance of its proposed subcontractor, as the solicitation did not prohibit the agency from doing so. ASG cites to our decision in Singleton Enterprises, B-298576, Oct. 30, 2006, 2006 CPD ¶ 157 for support. ASG also asserts that the solicitation was ambiguous on this point.

We disagree. In Singleton, the agency issued its solicitation under FAR part 15. Similar to ASG here, the protester in that decision complained that the agency failed to consider the past performance of its proposed subcontractor. The agency responded that the solicitation requested the past performance of the offeror, and the agency intended that to mean the prime contractor only. We stated that FAR § 15.305(a)(2)(iii) provides that contracting agencies should consider the past performance of subcontractors. Singleton Enterprises, supra, at 4. In addition, we acknowledged that decisions of our Office have stated that in the absence of a provision indicating that the agency will not consider a subcontractor’s past performance, the agency has discretion to do so. Id. Therefore, we concluded that the protester reasonably interpreted the solicitation as indicating that the agency would consider the past performance of proposed subcontractors. Id. at 5. We also concluded that the agency reasonably interpreted the term “offeror” to mean only the entity submitting the proposal, and therefore, the solicitation contained a latent ambiguity. Id. We sustained the protest and recommended that the agency amend the solicitation to clarify its intent. Id. at 6.

Here, in contrast, the solicitation was issued pursuant to FAR part 8 and requested corporate experience of the organization and past performance information for the offeror, without mentioning subcontractors. 5 RFQ at 50. FAR part 8 does not suggest that in evaluating an offeror’s past performance an agency should also consider the past performance of its proposed subcontractors. Accordingly, we do not find that the solicitation here is ambiguous, and it was reasonable for the agency to consider the experience and past performance of the offeror (i.e., the entity that submitted the offer) and not its subcontractors.

A more recent decision, which cites Atlantic, is Epsilon, Inc. GAO B-419278, February 2, 2021. It is based on a FAR 16.505 fair opportunity protest:  

Quote

Epsilon argues that the agency unreasonably failed to evaluate the past performance of the protester's subcontractor, the incumbent contractor. The protester argues that because the solicitation stated that the past performance of “offerors” would be evaluated, it was unreasonable for the agency to consider only the prime contractor's past performance. Comments & Supp. Protest at 21– 22 (citing RFP at 8). The protester asserts that nothing in the solicitation suggests that only the prime's past performance will be considered, and that FAR 15.305(a)(2)(iii) states that the “evaluation should take into account past performance information regarding ... subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.”

We find this argument to be without merit. In this respect, the solicitation did not state whether the agency would evaluate a subcontractor's past performance, with the RFP being silent on this issue and the agency providing an incoherent answer to a pre-submission question asking for clarification on this subject. Moreover, while the protester argues that FAR 15.305(a)(iii) requires consideration of subcontractor past performance, the instant RFP was governed by FAR part 16, not part 15. Because the RFP did not provide for the evaluation of subcontractor past performance and FAR 15.305(a)(iii) did not apply to the acquisition, the protester has not demonstrated that it was contrary to the terms of the solicitation or regulation for the agency to have failed to consider the past performance of Epsilon's subcontractor. Cf. Atlantic Sys. Grp., Inc., B–413901, B–413901.2, Jan. 9, 2017, 2017 CPD ¶38 at 7 (denying a protest alleging that the agency unlawfully failed to consider a subcontractor's past performance in violation of FAR 15.305(a)(iii), because the solicitation was conducted under FAR part 8); see also FAR 16.505(b)(1)(v)(A)(1) (providing that the contracting officer should (rather than shall) consider past performance when developing ordering procedures under FAR 16.505).

So, the answer to the Tzarina's question likely depends on the wording of the RFQ.

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6 hours ago, Vern Edwards said:

Atlantic Systems Group, Inc., GAO B-413901, January 9, 2017.

That's a good decision, but the pertinent part is in three paragraphs.

A more recent decision, which cites Atlantic, is Epsilon, Inc. GAO B-419278, February 2, 2021. It is based on a FAR 16.505 fair opportunity protest:  

So, the answer to the Tzarina's question likely depends on the wording of the RFQ.

THANK YOU!!!!!  This is super helpful

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