Past performance need not be evaluated in lowest price, technically acceptable (LPTA) procurements if the contracting officer documents the reason past performance is not an appropriate evaluation factor. If the contracting officer decides to use past performance as an evaluation factor in LPTA selection, a comparative assessment does not apply. FAR 15.101-2(b)(1).
If the contracting officer determines that a small business' past performance is not acceptable the issue must be referred to the Small Business Administration for a Certificate of Competency in accordance with FAR subpart 19.6.
In our experience, technical acceptability in LPTA procurements have been pass/fail determinations. A comparative analysis means the proposals will be rated on some type of scale, relative to each other. However, LPTA most often is used to determine whether the proposal is acceptable or not and part of the technical evaluation includes past performance acceptability.
Past performance has been considered by GAO to be a responsibility factor. GAO views past performance as the ability of the contractor to perform the contract. Responsibility factors may be used as technical evaluation factors only when comparative evaluation is used. GAO has cautioned an agency that it cannot disqualify a small business under the guise of using relative assessment of responsibility technical factors.
If there is no real comparative evaluation, and the assessment is based on pass/fail, the decision really is one of nonresponsibility. An "unacceptable" rating on a technical criterion involving past performance really is a determination of nonresponsibility. If a small business' past performance is not acceptable, then under FAR 15.101-2(b)(1), the matter must be referred to the Small Business Administration for a Certificate of Competency. GAO consistently views past performance as a responsibility criterion where it is used as pass/fail.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
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