Past Performance Evaluations - FAR 12 in conjunction with part 13

[tvak110]

If you are using past performance as an evaluation factor and your solicitation follows FAR 12 in conjunction with Part 13, can you rate an offeror "unfavorably" if they do not have any past performance? Many COs use the "Neutral" rating when using FAR 15 source selection procedures and FAR 15.305 (a)(2)(iv) dictates " 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." But when using 13 &12, nowhere does it state anything about this and that reference would not apply, which leads me to believe that we can conclude it is not a requirement. I am just hoping I am not missing any GAO decision that would state otherwise. Its been awhile since I've been in the commercial world of contracting and I haven't used part 13 in over 10 years. My goal is to keep the evaluation simple & fair. 

 

I haven't found a similar post or anything else that contradicts this. Any help would be greatly appreciated!

[joel hoffman]

Are you referring to the performance record (how well the firms performed)?

Or are you referring to previous experience performing relevant efforts?

“Past performance” with respect to FAR 15.305 refers to the record of how well the firm performed ( the quality of performance) as distinguished from the amount of experience a firm has in performing the same or similar work. See 42.15.

The courts and boards have upheld the government’s right to require a minimum, reasonable amount of previous, relevant experience where deemed necessary and/or to use comparative ratings for the amount of experience.

Try this Google Search: “wifcon experience vs. past performance” for instance.

[tvak110]

28 minutes ago, joel hoffman said:

Are you referring to the performance record (how well the firms performed)?

Or are you referring to previous experience performing relevant efforts?

“Past performance” with respect to FAR 15.305 refers to the record of how well the firm performed ( the quality of performance) as distinguished from the amount of experience a firm has in performing the same or similar work. See 42.15.

The courts and boards have upheld the government’s right to require a minimum, reasonable amount of previous, relevant experience where deemed necessary and/or to use comparative ratings for the amount of experience.

Try this Google Search: “wifcon experience vs. past performance” for instance.

Hey Joel, I had to edit the post slightly. Let me provide an example, an RFQ for commercial services that follows FAR 12 in conjunction with 13 procedures includes past performance as an evaluation factor (price and tech capability are other factors as well), and the offerors are required to provide references for work completed on similar services. If an offeror does not have a track record of past performance, can you rate them unfavorably? We would want to look at how well these contractors performed.

[joel hoffman]

Here is the Title 41 US Code coverage for past performance and evaluation of same:

“41 U.S. Code § 1126 - Policy regarding consideration of contractor past performance

(a) Guidance.—The Administrator shall prescribe for executive agencies guidance regarding consideration of the past contract performance of offerors in awarding contracts. The guidance shall include—

(1) standards for evaluating past performance with respect to cost (when appropriate), schedule, compliance with technical or functional specifications, and other relevant performance factors that facilitate consistent and fair evaluation by all executive agencies;

(2) policies for the collection and maintenance of information on past contract performance that, to the maximum extent practicable, facilitate automated collection, maintenance, and dissemination of information and provide for ease of collection, maintenance, and dissemination of information by other methods, as necessary;

(3) policies for ensuring that—

(A) offerors are afforded an opportunity to submit relevant information on past contract performance, including performance under contracts entered into by the executive agency concerned, other departments and agencies of the Federal Government, agencies of State and local governments, and commercial customers; and

(B) the information submitted by offerors is considered; and

(4) the period for which information on past performance of offerors may be maintained and considered.

(b) Information Not Available.—

If there is no information on past contract performance of an offeror or the information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance.

(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3689.)”

Notice that it doesn’t distinguish between Parts 15, 12 and 13 contract awards or evaluations of past contract performance.

And notice that it doesn’t mention or extend these requirements to relevant “experience”.

Edit: The degree of relevance in evaluating confidence in future performance can consider the amount and relevance of experience associated with  a past performance record. 

Edit: The term ”Neutral Rating” was superseded many years ago by the “may not be evaluated favorably or unfavorably” language.

Edited March 14 by joel hoffman

[Sam101]

B-421307

[joel hoffman]

15 minutes ago, Sam101 said:

B-421307

Thanks, Sam. From that decision, in response to the original question:

“While the solicitation in this case does not expressly explain how vendors who lacked relevant past performance would be evaluated, our decisions have generally concluded that vendors in FAR part 13 procurements who lack a record of recent, relevant past performance may not be treated favorably or unfavorably on that basis. See, e.g., Jacqueline R. Sims, dba JRS Staffing Services, B-409613, B-409613.2, June 16, 2014, 2014 CPD ¶ 181 at 4-5 (concluding that an agency is not permitted to evaluate a firm’s lack of relevant past performance either favorably or unfavorably in a FAR part 13 procurement, even in the absence of solicitation language to that effect); see also SSI Tech., Inc., B-412765.2, July 13, 2016, 2016 CPD ¶ 184 at 5-6.”

This is consistent with my post above, citing applicable law that doesn’t limit the requirement to Part 15 acquisitions or procedures.

[tvak110]

You all are great, thank you so much for this information.