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FAR 15.306 (b)(4):  Past Performance - Opportunity to respond to adverse information

Comptroller General - Key Excerpts

New Walden first challenges the agency’s assessment that Walden has experienced degradation in service since beginning the performance of CSO contracts in three other judicial circuits. The protester asserts that both the agency’s critique of Walden’s performance, as well as the agency’s reliance on that critique, was unreasonable. Specifically, the protester argues that, because the RFP advised that offerors would be given an opportunity to address adverse past performance information to which an offeror had not previously had an opportunity to respond, the agency’s failure to give it an opportunity to respond to the agency’s conclusions regarding its alleged degradation in service was unreasonable and failed to comply with the plain terms of the RFP.

As relevant here, the solicitation explained that past performance would be evaluated in accordance with Federal Acquisition Regulation (FAR) § 15.306(a)(2), and based on the “currency and relevance of the information, source of the information, context of the data, and general trends in contractor’s performance.” RFP at M-5, L‑9. The RFP defined “relevant present/past performance” as “effort involving a similar scope and similar magnitude of effort and complexity as this solicitation requires,” and “recent” performance as “performed during the last three years.” Id. at M-5. In addition, the solicitation provided that the government would consider information registered in PPIRS [Past Performance Information Retrieval System] and FAPIIS [Federal Awardee Performance and Integrity Information System], and might consider information provided by the program office, contracting officer, and end users. Id. Significantly, the RFP also provided that “[o]fferors will be given an opportunity to address adverse past performance information to which the offeror has not previously had an opportunity to respond.” Id. at L-10.

Walden’s proposal included four past performance references--two for its incumbent USMS CSO contracts for the 4th and 6th Circuits, one for a contract with the Centers for Disease Control and Prevention (CDC), and one for a contract with the State of Tennessee. AR, Tab 14, Walden Past Performance Proposal, at 2-3, 22‑23, 27-28. Walden’s proposal also included CPARS [Contractor Performance Assessment Reporting System] records for the three federal contracts referenced. Id. at 3-16 (Fiscal Year (FY) 2015 CPAR for USMS CSO contract, 4th Circuit), at 8‑11(FY 2014 CPAR for USMS CSO contract, 4th Circuit), at 2-16 (FY 2013 CPAR for USMS CSO contract, 4th Circuit), at 18-21 (FY 2015 CPAR for USMS CSO contract, 6th Circuit), at 24-26 (2014 CPAR for CDC contract).

The agency found all four of the contracts submitted by Walden to be recent (performed within the past three years), as well as relevant in terms of scope (armed and unarmed security officers) and relevant in magnitude of effort and complexity (approximately $25 million or greater). Id. at 13‑14. Walden’s performance was rated exceptional in all areas on both the CDC and the State of Tennessee contracts, and the CPARS for the 4th and 6th Circuits reflected exceptional to very good ratings in the areas of quality, schedule, and management. AR, Tab 14, Walden Past Performance Proposal, at 3-26. Although Walden received satisfactory ratings in the three remaining areas, the evaluators explained that a “satisfactory assessment” is “generally the highest assessment a contractor is able to obtain in CPARS/PPIRS” for quality, schedule, cost, and utilization of small business “due to the CSO Program’s use of a design/detail statement of work and contract limitation on subcontracting.” AR, Tab 16, Past Performance Evaluation, at 25. [4]

In addition, the agency considered information from its “CSO contract files” regarding Walden’s performance on three more recent USMS CSO contracts for the 1st, 5th, and 8th Circuits. Based on the information from the agency’s contract files, the evaluators concluded that Walden’s “capacity has shown difficulty in maintaining performance while scaling up services,” and “has required comparatively heavier oversight with five (5) Circuits than they required when they held one (1) to two (2) Circuits.” AR, Tab 36, Supp. Past Performance Evaluation, at 13-14. In particular, the evaluators noted that, “[s]ince the acquisition of these three additional circuits[,] the USMS program offices have observed some difficulty from Walden in some areas of program administration, most especially in processing applicant packages and medical qualification information on deadline.” AR, Tab 16, Past Performance Evaluation, at 14; Tab 36, Supp. Past Performance Evaluation, at 14.

The evaluators concluded that, “[o]verall, the records of Walden’s performance for the CSO Program provide an above average expectation that the offeror will successfully perform the required effort.” AR, Tab 36, Supp. Past Performance Evaluation, at 14. Specifically, the evaluators explained that “[t]he records show that Walden has successfully performed the required efforts for the last three years,” but “this record of performance has demonstrated areas of weakness and risk by trending down in maintaining administrative performance with increased contract loads.” Id. As a result, the evaluators stated that “[t]he above considerations prevent [the agency] from forming a high expectation that the offeror will successfully perform the required effort.” Id.

The protester argues that, because the agency identified, and relied upon, in its evaluation, adverse past performance information regarding Walden, which Walden had not previously been provided an opportunity to address, the agency was required by the terms of the solicitation to provide Walden with an opportunity to address the adverse past performance information. The protester contends that, by failing to provide Walden with this opportunity, the agency failed to comply with the ground rules for the competition as set forth in the RFP, which prejudiced Walden.

The agency acknowledges that Walden has never been provided an opportunity to respond to the information from the agency’s contract file regarding Walden’s performance on the 1st, 5th, and 8th Circuits that the agency considered during its past performance evaluation. In addition, the agency acknowledges that the RFP, includes a provision providing that offerors “will be given an opportunity to address adverse past performance information to which the offeror has not previously had an opportunity to respond.” RFP at L-10. The agency argues, however, that despite this clear statement in the solicitation, it was not obligated to provide Walden with this opportunity. We find the agency’s arguments in this regard unavailing.

For example, the agency argues that it was not required to comply with the RFP language because the solicitation’s inclusion of FAR § 15.306 “takes precedence over [the] conflicting language in the RFP instructions.” Agency Email, Mar. 13, 2017, at 1. The protester disagrees that the RFP language conflicts with the FAR provision.

As relevant here, FAR § 15.306(a)(2) provides that, “[i]f award will be made without discussions, offerors may be given the opportunity to clarify certain aspects of proposals,” such as “adverse information to which the offeror has not previously had an opportunity to respond.” FAR § 15.306(a)(2) (emphasis added). This FAR provision is permissive, thereby granting discretion to the agency to decide whether to provide an offeror with an opportunity to clarify adverse past performance information. The RFP language, on the other hand, clearly provided that offerors “will be given” an opportunity to respond to such adverse past performance information. Given that clarifications are not legally required when the agency awards without discussions, and that the agency awarded without discussions here, the RFP language clearly placed an obligation on the agency not required by the FAR provision.

Next, the agency argues that it was not required to provide Walden with an opportunity to respond to the alleged adverse past performance information because, in the agency’s opinion, the information at issue did not constitute “adverse past performance information.” In support of this argument, the agency asserts that the past performance information at issue was not “adverse” because it did not result in the protester receiving “an unfavorable or less than satisfactory” past performance rating. Agency Email, Mar. 13, 2017, at 1. We disagree.

As noted above, based on information in the agency’s contract files regarding Walden’s performance on USMS CSO contracts for the 1st, 5th, and 8th Circuits, the evaluators concluded that Walden’s capacity had “shown difficulty in maintaining performance while scaling up services,” and that Walden had “required comparatively heavier oversight with five (5) Circuits than they required when they held one (1) to two (2) Circuits.” AR, Tab 36, Supp. Past Performance Evaluation, at 13-14. Further, the evaluators noted that since the acquisition of the three additional circuits, the USMS program offices had “observed some difficulty from Walden in some areas of program administration, most especially in processing applicant packages and medical qualification information on deadline.” Id. Although the evaluators concluded that, “[o]verall, the records of Walden’s performance for the CSO Program provide an above average expectation that the offeror will successfully perform the required effort,” they found that Walden’s “record of performance has demonstrated areas of weakness and risk by trending down in maintaining administrative performance with increased contract loads,” which the agency specifically concluded, “prevent[ed] [the agency] from forming a high expectation that the offeror will successfully perform the required effort.” Id. The record also reflects that the agency relied on these same performance concerns in determining that Walden’s past performance was not a discriminator. AR, Tab 38, Past Performance Comparison at 1-3.

Although the agency contends that the information regarding Walden’s performance was not “adverse” because it did not result in Walden receiving an unfavorable or less than satisfactory rating, the record reflects that the agency did not assign a rating with regard to the information, which concerned Walden’s performance on contracts for the 1st, 5th, and 8th Circuits. Rather, the record reflects that the evaluators concluded that the information demonstrated “difficulty in maintaining performance,” “difficulty in program administration,” and “areas of weakness and risk by trending down in maintaining administrative performance with increased contract loads.” AR, Tab 36, Supp. Past Performance Evaluation at 14. In addition, the record reflects that the information had an adverse impact on Walden’s otherwise positive past performance, and prevented the agency from “forming a high expectation that the offeror will successfully perform the required effort.” Id. The record also reflects that the evaluators relied on the information as a discriminator in comparing Walden’s past performance with Paragon’s. In light of these considerations, we conclude that the information was sufficiently adverse that the agency should have provided Walden with an opportunity to respond.

In sum, we find that the solicitation required that offerors be given the opportunity to address adverse past performance information to which they had not previously had an opportunity to respond, and that the agency relied on adverse past performance information to which Walden had not been given the opportunity to respond in its evaluation. Given that according to the agency, consideration of this information prevented it from forming a high expectation that Walden would successfully perform the required effort, we further find that there is a reasonable possibility that Walden suffered competitive prejudice as a result of the agency’s failure to give it the opportunity to respond. DRS C3 Sys., LLC, B-310825, B-310825.2, Feb. 26, 2008, 2008 CPD ¶ 103 at 28; see Statistica, Inc. v. Christopher, 102 F.3d 1577 (Fed. Cir. 1996) (competitive prejudice is a necessary element of any viable bid protest). (We note in this connection that a high expectation of successful performance would have resulted in a past performance rating of exceptional, which exceeds Paragon’s past performance rating of very good). As a result, we sustain Walden’s protest on this issue.  (Walden Security; Akal Security, Inc. B-413523.6, B-413523.7, B-413523.8, B-413523.9: Mar 22, 2017)

Pre-Competitive Range Communications

Finally, PPDG argues that the agency was required by FAR § 15.306(b) to conduct exchanges regarding the protester’s adverse past performance record. This argument is without merit. By its terms FAR § 15.306(b)(1)(i), requires the agency to conduct “communications” with offerors “whose past performance information is the determining factor preventing them from being placed within the competitive range.” Here, as detailed above, PPDG’s elimination from the competitive range was due to low ratings under both the past performance and the technical factors. Under these circumstances, the agency was not required to provide communications to permit PPDG to address its adverse past performance. See The Cmty. P’ship LLC, B-286844, Feb. 13, 2001, 2001 CPD ¶ 38 at 13.

The protest is denied.  (Professional Performance Development Group, Inc., B-408925: Dec 31, 2013)  (pdf)
 



Arcus first argues that the agency failed to provide it with meaningful discussions regarding a “marginal” past performance rating that it received for one of its past performance references--the Air Education and Training Command (AETC) Group II housing privatization project, which encompassed family housing at six Air Force bases. The protester asserts that section 4.15.1.5 of the solicitation required the agency to provide Arcus with an opportunity to respond to the negative past performance rating. Arcus claims that the “marginal” rating assigned to Pinnacle Hunt Communities for its performance on the AETC Group II housing project resulted in Arcus receiving a past performance rating of “confidence” rather than high confidence, yet during its discussions with Arcus the Air Force did not mention any past performance concerns regarding the AETC Group II housing project. Protest at 15.

In evaluating Arcus’ past performance, the Air Force reviewed a “Project Owner Performance Overall Assessment Summary” for the AETC Group II prepared by the AFCEE. This document is a summary of the past performance information of Pinnacle Hunt Communities on the AETC Group II Project completed by Air Force personnel familiar with the project and the performance for the 4th Quarter 2009. The report detailed the various past performance problems on the AETC Group II Project and described the overall performance assessment of Hunt as follows:

Overall, the PO’s performance was within the satisfactory and marginal range. While the PO’s financial and developmental performance was satisfactory, customer satisfaction and property management drove the overall marginal rating.

AR, Tab 9, AFCEE Project Owner Performance Overall Assessment/Summary AETC II Privatized Housing, LLC (Pinnacle Hunt Communities), at 1. The report further stated:

Information provided in this report may be used by Air Force Acquisition Support Team’s . . . to evaluate the Pinnacle Hunt Communities past performance as part of the evaluation process for another Air Force project proposal.

Id.

On or about September 24, 2010, AFCEE sent a letter to Hunt Development Group, with a copy of this report. The letter included the same admonition that this report could be used as part of the evaluation process for other Air Force project proposals and advised that Hunt was being provided with the report “so you are aware of the information” that may be shared. AR, Tab 9, Letter from AFCEE to Hunt.

Hunt responded to AFCEE’s past performance assessment in a letter dated October 28, 2010, in which it stated that “we felt compelled to provide brief responses to some of the concerns raised.” AR, Tab 9, Pinnacle Hunt Letter to AFCEE (Oct. 28, 2010), at 1. In this five-page letter, Hunt addressed the marginal ratings that it received for its performance on the AETC Group II project in the critical areas of operations, customer satisfaction, and property management. Hunt closed its letter by listing, “a number of initiatives to enhance the level of customer service throughout the AETC II portfolio.” Id. at 5.

In its proposal here, Arcus referred to its performance of the AETC Group II project as follows:

The AETC II project has had some significant problems which Hunt has overcome. Issues resolved were that of the timeliness of modifications and problems controlling project costs. The primary sources of funds available to the project and the desires of AETC Command and installation leadership challenge of the AETC Group II project was the disparity between sources of funds available to the project and the desires of AETC Command and installation leadership.

AR, Tab 7, Arcus Proposal, Vol. III, Past Performance, at 14.

Thus, the record shows that Arcus’ affiliate, Hunt, was provided the negative past performance report on the AETC II project, that Hunt provided detailed responses to the adverse past performance, and that Arcus addressed the adverse past performance found on the AETC II project in its proposal. Having previously provided Hunt/Arcus the opportunity to respond to the adverse performance on the AETC II project, the agency was not required to mention the marginal rating associated with this project during discussions. In this regard, the RFP only required, “[a]ny adverse past performance information the Offeror has not had a prior opportunity to address will be submitted to the Offeror for its comments, rebutting statement, or additional information.” RFP § 4.15.1.5.

While Arcus claims that FAR § 15.306(d)(3) requires discussions regarding “adverse past performance information to which the offeror has not yet had an opportunity to respond,” this procurement was not subject to the FAR. Where the FAR does not apply, we review the actions taken by an agency to determine whether they were reasonable. Armed Forces Hospitality, LLC, B-298978.2, B-298978.3, Oct. 1, 2009, 2009 CPD ¶ 192 at 9 (privatization procurement). Here, we find the agency acted reasonably in not providing Arcus with another opportunity during discussions to address the adverse past performance on the AETC II project.  (Arcus Properties, LLC, B-406189, Mar 7, 2012)  (pdf)


Rod Robertson next focuses on the agency's past performance evaluation of the contract that it performed with the U.S. Marshal's Service--a contract for which it received an overall unsatisfactory rating. Rod Robertson argues that the agency's evaluation of its past performance in this instance constituted "adverse information," which the protester should have received an opportunity to address. However, where, as here, discussions are not conducted under an acquisition, an agency is not required to communicate with offerors regarding questions about adverse past performance, unless there is a clear reason to question the validity of the past performance information. Universal Fidelity Corp., B-294797.2, Feb. 7, 2005, 2005 CPD para. 88 at 6; contrast Daun-Ray Casuals, Inc., B-255217.3; B‑255217.4, July 6, 1994, 94-2 CPD para. 42 (discussions were conducted, but the protester was not given an opportunity to address adverse past performance information); see also Federal Acquisition Regulation sect. 15.306(d)(3) (where discussions are conducted, an agency must discuss "adverse past performance information to which the offeror has not yet had an opportunity to respond.")  (Rod Robertson Enterprises, Inc., B-404476, January 31, 2011)  (pdf)


LMSI does not deny that, as is evident from the facts recited above, the Air Force advised the firm of the agency’s concerns with its performance on the VH-71 contract. Rather, LMSI asserts that it thereafter was misled by the Air Force into believing that the agency was satisfied with its response to the agency’s evaluation notice and, as a result, was deprived of a meaningful opportunity to further respond to the perceived VH-71 performance problems. Specifically, LMSI notes that, in the agency’s subsequent interim (pre-FPR) evaluation briefings in March, July, and September, LMSI was advised that its proposal had received a satisfactory confidence rating for past performance. It is clear from the record, however, that not only should LMSI have been on notice that the agency’s concerns with its VH-71 performance had not been fully resolved by LMSI’s explanation, but that, in any case, LMSI had a further opportunity to respond to the adverse past performance information that furnished the basis for the protester’s final past performance rating of little confidence. In this regard, in each of the three pre-FPR briefings, the Air Force noted that there had been “VH‑71 difficulties.” LMSI CSAR-X Initial Evaluation Briefing at 43; LMSI CSAR-X Interim Evaluation Brief at 58; LMSI CSAR-X Final Proposal Revision Brief at 55. In addition, in the March briefing, the agency noted that LMSI’s [DELETED] and, in the July and September briefings, referred to its “[c]oncerns with [LMSI’s] VH-71 contract performance.” LMSI CSAR-X Initial Evaluation Briefing at 43; LMSI CSAR-X Interim Evaluation Brief at 55; LMSI CSAR-X Final Proposal Revision Brief at 52. Moreover, the SSA noted in his source selection decision (as had the agency evaluators in their recommendation to the SSA) that LMSI’s final past performance rating of little confidence was based on a negative October 5 Contractor Performance Assessment Report (CPAR) for the VH-71 contract which, although it was first furnished to the Air Force by the Navy on October 12 (after the September 18 closing date for receipt of FPRs), had been previously furnished to LMSI for comment on or about July 10, and commented on by LMSI on October 2. SSD at 7; CSAR-X Final Evaluation Brief, Oct. 21, 2006, at 114, 116-17. As discussed in more detail below, the Navy CPAR rated LMSI’s VH-71 performance [DELETED]. Given the Air Force’s continuing expressions of concern over LMSI’s VH-71 performance, and the very unfavorable Navy CPAR that was furnished to LMSI in July, LMSI clearly was on notice of the need to further account for its VH-71 performance. We note, moreover, that LMSI in fact included an explanation of its VH-71 performance in its response to the CPAR--the agency considered this response in its final evaluation--and that LMSI could have provided an explanation in its FPR response as well, had it chosen to do so. We thus find no basis for concluding that LMSI was deprived of an opportunity to respond to the adverse past performance information on which the little confidence evaluation rating was based.  (Sikorsky Aircraft Company; Lockheed Martin Systems, B-299145.4, March 29, 2007)  (pdf)


Regarding communications concerning adverse past performance information to which the vendor has not previously had an opportunity to respond, we think that for the exercise of discretion to be reasonable, the agency 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 agency reasonably may decide not to ask for clarifications. NMS Mgmt., Inc., supra. Applying this standard here, we conclude that the agency reasonably exercised its discretion in deciding not to communicate with GD-OTS regarding the delays under the LRIP contract, since the information was based on first-hand knowledge of Navy personnel who evaluated the protester's past performance; thus, there was no reason for the Navy to have questioned the validity of its own conclusions. While the protester clearly disagrees with the Navy's conclusions about the LRIP delays and may have wished to respond to the information, that fact does not render the agency's decision to make award without holding discussions or clarifications unreasonable, given the permissive language of FAR Section 15.306(a)(2). Id. The protester's argument that offerors were treated unequally is similarly unavailing. According to GD-OTS, when the Navy raised its concerns with Alliant regarding its subcontracting plan, and afforded Alliant the opportunity to revise its plan as directed by the agency, the Navy effectively held discussions with Alliant, and thereby triggered a requirement for the agency to hold discussions with GD-OTS as well. (General Dynamics-Ordnance & Tactical Systems, B-295987; B-295987.2, May 20, 2005) (pdf)


As a preliminary matter, to the extent that the protester contends that it was improper for the agency to consider the adverse past performance information included in its RYG 1 records without providing the protester with a further opportunity prior to award to explain the information, Federal Acquisition Regulation (FAR) 15.306(a)(2), which addresses clarifications and award without discussions, states in relevant part that where award will be made without conducting discussions, "offerors may be given the opportunity to clarify certain aspects of proposals ( e.g. , the relevance of an offeror's past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors." As the agency points out, and as discussed further below, Hanley has had ample opportunity to comment on the adverse past performance information in its RYG records. Given the permissive language of FAR 15.306(a)(2), and the fact that Hanley has been given ample opportunity to comment upon the past performance information, the fact that Hanley now wishes to provide further comments on the information in its RYG records does not give rise to a requirement for the agency to provide an opportunity to do so. See TLT Constr. Corp. , B-286226, Nov. 7, 2000, 2000 CPD 179 at 7-8; A.G. Cullen Constr., Inc. , B-284049.2, Feb. 22, 2000, 2000 CPD 45 at 5-6.
———————

1 The Red/Yellow/Green (RYG) Program is a Navy/Air Force automated system that classifies the performance risk associated with a particular contractor by assigning a color rating to the vendor's quality and delivery performance history; a green rating signifies low risk, yellow signifies moderate risk, red signifies high risk, and a neutral rating applies to contractors lacking recent or relevant past performance information. All offerors were advised that the past performance evaluations would be based upon the offerors' quality and delivery records reported under the RYG Program.

(Hanley Industries, Inc., B-295318, February 2, 2005) (pdf)


GTA additionally argues that it was not given an adequate opportunity to address the negative TACOM contract past performance information during discussions. The record shows, however, that GTA was explicitly told during discussions that the agency had received negative information regarding the performance of its 210,000 gallon fuel bladder contract. Specifically, GTA was told that 210k gallon fuel bladder: The respondent indicated you were experiencing some problems with the First Article. AR, Tab 10B, GTA EN G-PR-2, at 1. GTA was also provided a summary that stated performed first article test 3 times and rejected all three. AR, Tab 10B, GTA Briefing Slides, at 2. When conducting discussions, an agency must advise offerors of deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond, and must afford offerors an opportunity to revise their proposals to fully satisfy the agencys requirements. Federal Acquisition Regulation 15.306(d)(3). Clearly, based on the discussion here, GTA was aware that the agency had received negative past performance information concerning the TACOM contract and that the information received by the agency was characterized as a FAT failure. GTA, in fact, responded with a discussion of its performance on the TACOM contract, explaining difficulties in performing the FAT requirements and its efforts to correct the various problems. AR, Tab 10B, GTA EN Response G-PR-2, at 1-2. Based on this record, we find that the agency conducted meaningful discussions. (Cooley/Engineered Membranes; GTA Containers, Inc., B-294896.2; B-294896.3; B-294896.4, January 21, 2005) (pdf)


FRS also objects to the TEB's reliance on adverse past performance information from another source.  As noted above, the TEB learned of certain past performance information adverse to FRS, and considered the information credible because it was a statement against the interest of its author--another offeror who had been FRS's partner in a predecessor company.  An agency is not limited to the "four corners" of an offeror's proposal in the evaluation of proposals, and may use other information known by its own evaluators.  Arctic Slope World Servs., Inc., B-284481, B-284481.2, Apr. 27, 2000, 2000 CPD ¶ 75 at 7.  While the Forest Service could have given FRS the opportunity to respond to this adverse past performance information, see FAR § 15.306(a)(2), we see no basis to conclude that it was unreasonable for the agency not to do so.  See NMS Mgmt., Inc., B-286335, Nov. 24, 2000, 2000 CPD ¶ 197 at 3 (in the absence of a clear basis to question adverse past performance information, agency reasonably may decide not to ask for clarification).  In any event, FRS's focus on the agency's reliance on this information ignores the basic problem with its proposal.  Quite simply, it was the responsibility of FRS to demonstrate in its proposal past performance relevant to the instant procurement; it was not the agency's obligation during the evaluation process to fill in the gaps.  Since FRS had the burden of submitting an adequately written proposal, yet failed to do so, we have no basis to question the reasonableness of the agency's evaluation.  G&M Indus., B-290354, July 17, 2002, 2002 CPD ¶ 125 at 4.  (Forest Regeneration Services LLC, B-290998, October 30, 2002)  (pdf)


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.  Applying this standard here, we think that the contracting officer reasonably exercised his discretion in deciding not to communicate with Cullen regarding the adverse past performance information received from one of Cullen's references.  (A. G. Cullen Construction, Inc., B-284049.2, February 22, 2000)

Comptroller General - Listing of Decisions

For the Government For the Protester
Professional Performance Development Group, Inc., B-408925: Dec 31, 2013  (pdf) New Walden Security; Akal Security, Inc. B-413523.6, B-413523.7, B-413523.8, B-413523.9: Mar 22, 2017
Arcus Properties, LLC, B-406189, Mar 7, 2012  (pdf)  
Rod Robertson Enterprises, Inc., B-404476, January 31, 2011  (pdf)  
Sikorsky Aircraft Company; Lockheed Martin Systems, B-299145.4, March 29, 2007  (pdf)  
General Dynamics-Ordnance & Tactical Systems, B-295987; B-295987.2, May 20, 2005 (pdf)  
Hanley Industries, Inc., B-295318, February 2, 2005 (pdf)  
Cooley/Engineered Membranes; GTA Containers, Inc., B-294896.2; B-294896.3; B-294896.4, January 21, 2005 (pdf)  
Cooley/Engineered Membranes; GTA Containers, Inc., B-294896.2; B-294896.3; B-294896.4, January 21, 2005 (pdf)  
Exelon Services Federal Group, B-291934, April 23, 2003  (pdf)  
Kathpal Technologies, Inc., B-291637.2, April 10, 2003  (pdf)  
Forest Regeneration Services LLC, B-290998, October 30, 2002  (pdf)  
NMS Management, Inc., B-286335, November 24, 2000  (pdf)  
Arctic Slope World Services, Inc., B-284481; B-284481.2, April 27, 2000  (pdf)  
A. G. Cullen Construction, Inc., B-284049.2, February 22, 2000  

U. S. Court of Federal Claims - Key Excerpts

The FAR's treatment of discussions speaks in broad terms of subject matter areas. See FAR §15.306(d)(3) ("significant weaknesses, deficiencies and other aspects of its ... past performance"). Clearly, the obligation goes to the issues, not the specific circumstances that illustrate those issues. The Air Force satisfied its obligation by citing the three management weaknesses. It was not obligated to cite all the illustrative contracts. See Voices R Us, B-274802.2, 97-2 CPD ¶ 170, 1997 WL 789005 * 2-3 (Dec. 24, 1997)(Navy discharged discussions obligation where it identified categories of past performance problems that related to specific problems found in past performance surveys).  (Cubic Defense Systems, Inc. v. U.S. and Metric Systems Corp., No. 99-144C, December 3, 1999)
U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Cubic Defense Systems, Inc. v. U.S. and Metric Systems Corp., No. 99-144C, December 3, 1999  
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