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.

The General Services Administration (GSA) Federal Supply Schedule (FSS) program provides federal agencies with a streamlined process for acquiring commercial goods and services. The GSA awards indefinite-delivery contracts after following the contractor responsibility requirements outlined in the Federal Acquisition Regulation (FAR). Under FAR 9.1, contracting officers (COs) must determine a prospective contractor’s responsibility, or capability to perform, before awarding a contract. The requirement for an affirmative responsibility determination applies to the award of the FSS contract, not to orders placed under it. This is because responsibility determinations must be made for prospective contractors rather than existing ones, and the GSA makes an affirmative responsibility determination before the contractor’s overarching indefinite-delivery FSS contract is awarded. This approach is consistent with the regulatory framework governing responsibility determinations, which renders the concept of responsibility inapplicable once a contract has been awarded. However, if the CO nevertheless elects to make a responsibility determination before placing an FSS order, he must do so in a reasonable manner.

The government often adds products and services to its existing contracts by executing contract modifications and amending the relevant terms. Under the General Services Administration (GSA) Federal Supply Schedule (FSS) program, a vendor’s schedule contract may be modified to add product or service offerings and revise its price list. Such modifications are generally considered matters of contract administration and therefore may not be challenged in a bid protest. However, an exception to this general rule may arise under the Competition in Contracting Act’s (CICA) full and open competition requirements, which remain applicable notwithstanding the FSS program’s streamlined acquisition procedures. Under this exception, a protester’s allegations that a contract modification changes the work beyond the scope of the original contract place the protest within the Government Accountability Office’s (GAO) bid protest jurisdiction. This is because the additional work covered by the modification is otherwise subject to CICA’s competition requirements, unless a valid determination is obtained that deems the work appropriate for procurement on a sole-source basis. However, as with any protest, the protester must satisfy the requirement of being an interested party. Notably, prospective suppliers or subcontractors who supply competing products or services to FSS vendors may not raise such protests, as their economic interests are not considered sufficiently direct to confer interested party status.