Past performance evaluations play an important role in determining the strength and viability of competing offerors’ proposals. It is generally within the procuring agency’s discretion to determine the scope of the past performance history to be considered during evaluation, provided all proposals are evaluated on the same basis and the evaluation is consistent with the terms of the solicitation. While procuring agencies are typically permitted to limit their evaluations to only consider past performance information submitted in response to the solicitation, under certain limited circumstances, outside information not submitted with the offerors’ proposals must also be considered. Under such circumstances, the procuring agency is required to consider outside information as part of its past performance evaluation when the information is determined to be “too close at hand” to require competing offerors to bear the inequities that would arise from the agency’s failure to obtain and consider the information. Notably, the “too close at hand” principle is narrowly interpreted and is only applied to information related to the offerors’ past performance.

In B-275554, the Government Accountability Office (GAO) sustained a bid protest challenging the procuring agency’s past performance evaluation by applying the “too close at hand” principle. In that procurement, the Department of Veterans Affairs (VA) intended to acquire a replacement telephone system for the VA Medical Center in Wilkes-Barre, Pennsylvania. In evaluating the protester’s past performance, the contracting officer (CO), as the source selection authority, identified two directly relevant past performance references but only considered one reference, as an agency official did not complete a required form with respect to the protester’s other past performance reference. Notably, the contract whose reference was not considered involved the same agency, the same CO, and virtually the same services as the solicitation at hand. Furthermore, the CO conducting the procurement not only had the first-hand knowledge of the prior contract but also described the protester’s performance as “exemplary” in a letter provided to the Small Business Administration (SBA) on an unrelated matter. In applying the “too close at hand” principle, the GAO sustained the protest and concluded that it was unreasonable for the CO not to consider the protester’s past performance information on the earlier contract under these circumstances.

It is worth noting, however, that the “too close at hand” principle does not create an obligation for procuring agency officials to search and review public records when conducting past performance evaluations. For instance, in B-417010; B-417010.2, the GAO recognized the principle but declined to extend it beyond its narrow interpretation. The protest involved a request for quotation (RFQ) for dormitory furniture items for the Air Force, and generally provided that the agency would consider data independently obtained from other government and commercial sources. In a post-award protest, the protester challenged the scope of the Air Force’s past performance evaluation in alleging that the agency was required to seek out and consider the publicly available information regarding the awardee’s recent bankruptcy reorganization. However, the GAO dismissed the protest, noting that while the agency had the discretion to consider data obtained independently of the past performance information submitted in the vendor’s quotation, it was not required to do so under the circumstances. The outside information in this instance was not with the procuring agency and was not personally known to the evaluators, and the “too close at hand” was therefore determined to be inapplicable.

Similarly, the “too close at hand” principle does not apply to information unrelated to the offeror’s past performance. In B-416415; B-416415.2, the GAO refused to apply the principle to information relating to the technical requirements of a solicitation. That protest involved a request for proposals (RFP) for providing services in support of the National Oceanic and Atmospheric Administration’s (NOAA) Center for Satellite Applications and Research. The protester argued that NOAA unreasonably failed to consider information it already knew about the skills of the protester’s proposed personnel. Specifically, the protester contended that the agency was on notice of the leadership and communication skills of its personnel because they had previously given presentations at conferences and workshops attended by NOAA personnel. In support of its argument, the protester cited the “too close at hand” principle. However, the GAO declined to apply the principle, noting that information about the qualifications of the protester’s key personnel related to the technical requirements of the solicitation, rather than the protester’s past performance. In dismissing the protest, the GAO reminded the protester that the “too close at hand” principle was applied only to information relevant to an offeror’s past performance.

Under certain limited circumstances, the “too close at hand” principle requires procuring agencies to consider past performance information not submitted with the proposal. The GAO has narrowly interpreted the principle and limited its application to the consideration of previous contracts for the same services with the same contracting activity, or to information that is personally known to the evaluators. Under such circumstances, the procuring agency has an obligation, as opposed to the discretion, to consider outside information not submitted with the offerors’ proposal because the relevant information is considered “too close at hand” to ignore. Contractors should be mindful that the “too close at hand” principle does not create an obligation for agency officials to search out and review public records during evaluations. Furthermore, the principle is inapplicable to information relating to the technical requirements of the solicitation and only applies to past performance information. Ultimately, while the “too close at hand” principle may be applicable under certain limited circumstances, when challenging past performance evaluations, contractors should begin their inquiry by first focusing on whether the government assessed the proposals on an equal basis and otherwise conducted an evaluation consistent with the terms of the solicitation.

This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.