Past performance evaluations play an integral role in determining the capability of competing offerors to perform. Solicitations describe the government’s intended approach for evaluating past performance, and an offeror’s past performance is typically evaluated by reviewing performance histories on individual procurements. As long as the evaluations are consistent with the solicitation and all proposals are evaluated on an equal basis, it is within the procuring agency’s discretion to determine the scope of the offerors’ performance histories to be considered. There are situations where a contractor contests a recently assigned past performance rating by disputing the government’s interpretation of the facts relating to its performance. However, even when a past performance rating is being disputed, a procuring agency may base its evaluation upon a reasonable perception of inadequate past performance. The contractor’s efforts to dispute the past performance rating, or its continued disagreement with the agency that assigned the rating, may be disregarded by the procuring agency when conducting the past performance evaluation.
In B-423103, a bid protest decision issued on January 15, 2025, the Government Accountability Office (GAO) found the procuring agency’s past performance evaluation fair and reasonable despite the protester’s assertion that a past performance rating considered during the evaluation was a matter of an unresolved and ongoing dispute. The Defense Logistics Agency (DLA) issued a request for quotation (RFQ) to acquire 85 commercial piston seals for the Apache and Black Hawk helicopters. The piston seals were deemed critical application items, with the awardee and the protester designated as the only approved sources. The awardee’s quotation was evaluated as acceptable. Meanwhile, the contracting officer (CO) noted the protester’s recent performance under a contract for the same items as having quality issues, following issuance of a stop-work order for supplying non-conforming material. Based on this evaluation, the contract was awarded to the awardee, and the protester filed its protest.
Among other arguments, the protester alleged that the stop-work order issued to the protester was baseless, and that the DLA did not fairly evaluate its quotation because the existence of the allegedly unjustified stop-work order was unfairly considered. The protester contended that it was improper for the DLA to consider the quality issues in its recent performance because an unresolved dispute remained over the basis for the stop-work order. The DLA maintained that its evaluation of the protester’s quotation was reasonable and adequately documented. The GAO agreed with the DLA, noting that a procuring agency may properly base its evaluation upon a reasonable perception of inadequate past performance, notwithstanding the company’s efforts to dispute it. Furthermore, the protester’s continued disagreement with past performance ratings is insufficient to demonstrate the unreasonableness of the procuring agency’s evaluation. Consequently, the protester’s dispute concerning the basis of the stop-work order did not preclude the DLA from properly considering it in evaluating the protester’s quotation.
Similarly, in B-416460.3, a decision issued on May 14, 2019, the GAO determined that the agency’s past performance evaluation was reasonable despite the protester’s continued disagreement with the agency’s interpretation of performance issues on the incumbent services contract. The Federal Emergency Management Agency (FEMA) issued the request for proposals (RFP) for vehicle and equipment maintenance services at six sites. The awardee and the protester received identical ratings in the technical, management, and past performance factors, with the protester’s price 3.56% lower than the awardee’s in the best-value tradeoff evaluation. Despite the lower price, the agency did not select the incumbent-protester for the award due to issues in the preceding contract, including delays, cost tracking, and invoicing problems. In the protest that followed, the protester disputed FEMA’s characterization of the past performance and provided a detailed response to each issue.
However, the GAO denied the protest, noting that the record contained no basis to question the agency’s past performance evaluation. The agency’s evaluation identified three specific issues, corroborated by contemporaneous communications, that FEMA experienced during the protester’s performance under the incumbent contract. Although the protester had provided its own detailed version of the facts surrounding these issues, that version only reflected a continued disagreement with the agency’s interpretation of the protester’s performance under the incumbent contract. Such disagreements were insufficient to demonstrate that FEMA’s evaluation of the protester’s past performance was unreasonable or otherwise inconsistent with the solicitation. In other words, the protester’s disagreement with FEMA’s interpretation of the protester’s past performance on the incumbent contract did not preclude FEMA from properly considering the issues during proposal evaluations for the follow-on contract.
When conducting a past performance evaluation, it is within the procuring agency’s discretion to determine the scope of the offeror’s performance history to be considered, provided that all proposals are evaluated on the same basis and in accordance with the solicitation requirements. In this regard, the procuring agency may base its past performance evaluation on its own reasonable perception of inadequate performance, regardless of whether the contractor disputes the agency’s interpretation of the facts. Furthermore, an agency’s assessment of a contractor’s performance on a previous contract, along with its findings related to such assessments, are matters of contract administration and thus unreviewable during a bid protest. Thus, when feasible, offerors should avoid submitting references for contracts on which facts surrounding their performance are under dispute. Ultimately, procuring agencies have discretion to consider recent performance histories and information from past performance evaluations, even when the contractor disputes the underlying facts concerning the past performance.
This Federal Procurement 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.
