PAST PERFORMANCE NEED NOT BE CONSIDERED

Judge Victor Wolski of the Court of Federal Claims (COFC) observes that past performance of all offerors need not be considered under FAR 15.304(c)(3) and that consideration of past performance in commercial buys is not mandated.  He specifically holds that a bidder can waive consideration of its past performance if the solicitation language alerts bidders that unacceptable technical proposals will not be further considered and a protesting contractor fails to raise objection prior to the close of the bidding process.

The case arose when the protester's proposal was rejected as ineligible based on the technical evaluation factor.  The protester argued that if the agency considered past performance, it would have seen that all of the deficiencies in the technical proposal were addressed.  But the solicitation clearly stated that an unacceptable technical proposal "will not be further evaluated."  Based on court precedent, Judge Wolski rejected the protester's argument because the protester failed to object to the terms of the solicitation prior to the close of the bidding process.

But Judge Wolski went on to address the question of whether every offeror is entitled to a past performance evaluation.  No, he says.  Under commercial item buys, past performance should be evaluated but should is not mandatory.  More broadly, FAR 15.304(c)(3) which makes evaluation of past performance mandatory (by using the word "shall"), does not refer to "all offerors" and "nothing in this provision precludes federal agencies from using an approach that weeds out offerors under other non-cost factors before past performance is considered."

To support his conclusion, Judge Wolski notes that price must be considered without exception when an award is made.  However, it need not be considered for proposals that are technically unacceptable.  "It is difficult to see how the less mandatory language of section 15.304(c)(3) could impose a greater obligation on agencies that is imposed for evaluation of price."

In conclusion, Judge Wolski opines:

The FAR does not appear to contain any impediment to an agency's restricting past performance evaluations to offerors who have met some other non-cost factor threshold, such as suitably explaining how the requirements of a contract would be met.

So this case if a reminder that objections to language in the solicitation must be raised prior to the closing of the bidding process.  The case also is a lesson in shall vs. should and a clear indication that an agency can reject a proposal without consideration of past performance data.

bill@spriggslawgroup.com       www.spriggslawgroup.com