• Dick Lieberman,Consultant

Agencies: Don't Make the Mistake of Overvaluing Past Performance

You often see a protester who believes that an agency undervalued his company’s past performance. But here’s a protest where the Government Accountability Office (“GAO”) sustained a protest because the agency made the mistake of unreasonably overvaluing an offeror’s past performance. Al Raha Group for Tech. Svcs, Inc.; Logistics Mgt. Int’l, B-4111015.2 & .3, April 22, 2015.

The protesters (“Al Raha” and “LMI”) protested the award of a Foreign Military Sales Contract to SupplyCore, Inc. by the U.S. Air Force (“USAF”) for F-15 jet support transportation services for the Royal Saudi Air Force. The agency evaluated and based award on technical, past performance and cost/price. For past performance, the Solicitation (“RFP”) stated that USAF would evaluate the recency (past 5 years) and relevance (similar scope, similar magnitude of effort and similar complexities to the RFP requirements) of each past performance reference.

The GAO noted that as a general matter, evaluation of an offeror’s past performance is within the discretion of the contracting agency, and GAO will not substitute its judgment for reasonably based ratings. However, GAO will question such an evaluation’s conclusions where they are unreasonable or undocumented. The key question is whether the evaluation was conducted fairly, reasonably and in accordance with the RFP’s evaluation scheme. Al Raha and LMI protested the “substantial confidence” assessment for past performance given to SupplyCore, arguing that the USAF failed to meaningfully consider the limited scope and magnitude of effort and complexities of SupplyCore’s past performance.

The GAO examined SupplyCore’s four references and found that they totaled only $152,036, or only about 0.14 percent of the estimated value of the RFP. Although USAF rated all references as “somewhat relevant,” (meaning they had “some of the scope and magnitude of effort and complexities required by the RFP), the GAO concluded there was no basis to reasonably conclude that even “some” of the effort required by the RFP were included in the references. Even the Source Selection Authority had specifically expressed and documented his concerns regarding the relevance of the SupplyCore past performance references. GAO concluded that the references appeared more consistent with a “not relevant”—meaning little or none of the effort required by the RFP. GAO concluded that the USAF evaluation, which relied on unsupportable past performance relevance ratings to support the highest possible confidence assessment, was flawed. The USAF score of “substantial confidence” was not supported by the record.

In addition to the protest above, LMI also challenged the USAF’s evaluation that its past performance was only worth “limited confidence.” The GAO also found this score unreasonable, because although the agency stated it could not verify LMI’s key personnel’s past performance, the GAO found that the agency itself had “expressly found…that 7 of the 7 relevancy criteria were met.” GAO held that the past performance information was sufficiently “verified” in accordance with the RFP requirements, and sustained the protest on this ground as well.

GAO recommended that the USAF re-evaluate past performance information of all offerors and make a new source selection determination.

REMINDERS: It is crucial that agencies evaluate in accordance with whatever the solicitation states will be used for evaluation. This protest presents both an underrated past performance, and an overrated past performance. This prompts a simple question: were the evaluators properly informed and trained in the requirements of the solicitation?

Also, when an agency conducts an evaluation, it is essential that it document the basis for not only the “best value” decision (the ultimate award), but also the individual scores and evaluations of the proposals. As shown in this protest, while rare, in extreme cases the GAO will go behind the final ratings to determine if the evaluation record supports the conclusions.

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This website was developed by Richard Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements(FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR.   See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Tel. 202-520-5780, rliebermanconsultant@gmail.com

Copyright © 2020 Richard D. Lieberman

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