Past Performance



Considerations for Successful Evaluation of Past Performance and/or ExperienceBy Lisa Schneider DAU/FLDAs evidenced by the number of sustained protests resulting from flawed past performance or experience evaluations, there are some real areas of caution for the acquisition workforce when it comes to using past performance and experience as evaluation factors. Fortunately… or unfortunately, there is a vast array of resources and protest case histories to consider, that disclose fundamental precepts worth reviewing. Successfully defending a protest usually comes down to: was the evaluation “reasonable and consistent with the solicitation's stated evaluation criteria and applicable statutes and regulations.” Government Accountability Office’s (GAO) statistics on sustained protests from 2017 support the assertion that evaluation of past performance and/or experience requires care:“Our review shows that the most prevalent reasons for sustaining protests during the 2017 fiscal year were: (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; (4) inadequate documentation of the record; and (5) flawed selection decision.”As evaluation criteria, past performance and/or experience are prevalently protested each year, as most companies believe these evaluations are not done well, due to the criteria’s subjective nature. The pitfalls of conducting past performance or experience evaluations should not negate their use as valuable tools. As the authors of the text, Competitive Negotiation: The Source Selection Process point out, “evaluation of past performance reduces the emphasis on merely writing good proposals in favor of focusing on actual performance of prior contracts.” GAO record confirms, that “in spite of many challenges to past performance, the GAO has accorded agencies considerable discretion in the evaluation of contractor past performance.” It is worth noting here that the Office of Federal Procurement Policy (OFPP) issued some excellent guidance in a memorandum to executive agencies on the collection and evaluation of contractor performance evaluation. The memo emphasizes that “evaluating timely and relevant information about how a contractor performs is critical to the Government’s ability to deliver results effectively and efficiently.” Do you understand the difference between past performance and experience? The Federal Acquisition Regulation, provides no definition of experience, but does, under FAR 2.101, define past performance as “an offeror’s or contractor’s performance on active and physically completed contracts.” On the other hand, Defense Procurement & Acquisition Policy (DPAP) - A Guide to Collection and Use of Past Performance Information, Version 3 provides definitions and a recommendation for their use in evaluation:“There is an important distinction between a contractor’s experience and its past performance. Experience reflects whether contractors have performed similar work before. Past performance, on the other hand, describes how well contractors performed the work—in other words, how well they executed what was promised in the proposal. Experience can be considered a source selection factor or subfactor. Both experience as a factor or subfactor and past performance should be evaluated under performance risk.”One can imagine potential traps here in understanding the difference between past performance and experience, and also distinctly evaluating them. The DPAP guide points out that the terms experience and past performance must be clearly defined in the solicitation to “avoid the potential for double counting by asking for the same information under both factors.” GAO is also a source of some guidance here:“Past performance relates to how well a contractor performed, while relevant experience pertains to the type of work a contractor performed-- two distinct criteria. Given the fundamentally different nature of the evaluations, a rating in one factor would not automatically result in the same rating under the other.”Reviewing recent GAO protest decisions, common pitfalls involving past performance or experience begin to emerge. These GAO cases provide some useful guiding principles. The following language is excerpted directly from GAO cases and web links to the specific example cases can be found in the end notes:Agencies are required to evaluate proposals on a common basis and in accordance with the terms of the RFP. Agencies may not engage in disparate treatment of vendors past performance. The evaluation of experience and past performance, by its very nature, is subjective, and a vendor’s disagreement with an agency’s evaluation judgments does not demonstrate that those judgments are unreasonable. The evaluation of an offeror's past performance, including the agency's determination of the relevance of an offeror's performance history and the weight to be assigned to a subcontractor's past performance, is a matter of agency discretion, which we will not find improper unless it is inconsistent with the solicitation's evaluation criteria. Our Office has consistently explained that pass/fail evaluations of capability issues, such as past performance, are tantamount to responsibility determinations, with the result that a rating of “unacceptable” in these areas is the same as a determination of non-responsibility. Although agencies properly may apply evaluation considerations that are reasonably encompassed within the solicitation's stated criteria, an agency may not give importance to specific criteria beyond that which would reasonably be expected by offerors.Agency failed to adequately document its evaluation and where the agency credited offerors for relevant performance without considering the quality of that performance experience, and credited offerors for positive performance without considering the relevance of that performance.The agency's evaluation considered a contract that it was not permitted to consider under the terms of the solicitation, overriding the offeror's business judgment as to which contracts the offeror should include in its final proposal--in essence, revising the awardee's final proposal under the experience factor.Although an agency is not required to retain every document generated during its evaluation of proposals, the agency’s evaluation must be sufficiently documented to allow our Office to review the merits of a protest.The circumstance leading to the protests are not unique. There are a number of lessons learned worth considering. I have compiled my top twenty (20) lessons learned from reading protests:Acquisition Planning:1: Allow adequate time for planning to develop a clear RFP. The number of amendments to the solicitation can be an indicator that the RFP was not fully understood by the offerors that could have been resolved with adequate exchanges with potential offerors2: There are potential considerations around bundling requirements under a single contract and reasonable expectations of relevant experience given the size of the bundled effort.3: What worked in the past may not necessarily work every time. Consider the specific circumstances of the instant acquisition -- scope, potential offerors, market conditions, requirements, and risks of each acquisition in developing evaluation criteria.4: Performing a past performance evaluation in the context of a lowest-priced, technically-acceptable procurement, which is set aside for small businesses, could be duplicative of the agency’s responsibility determination. Past performance evaluations are not always necessary, but if not used must be appropriately justified. Developing the Solicitation:5: Choose limited but meaningful or differentiating evaluation factors that provide clarity to the offerors and evaluators.6: Carefully consider how to establish relevance of experience. 7: When using a standard (e.g. # of contracts or $ value) for experience, the standard must be clearly stated in the solicitation. 8: Do not use past performance as both a factor and subfactor, so as not to give it undue weight.9: Terminology must be clearly defined or else it is subject to interpretation during the evaluation which is problematic, for example the difference between “team members” and “affiliates.”Evaluation of Proposals:10: The inherent subjectivity of relevance determinations is problematic, if done in a manner inconsistent with the RFP.11: Avoid unintentionally giving undue importance to one evaluation factor, if all factors are equal.12: Great care must be taken when determining to use or not use information that is “close at hand” and otherwise “known to the agency’ or it may result in the government making a defacto inappropriate revision to an offeror’s proposal.13: Properly use and evaluate the contracts submitted for experience per the evaluation criteria specified in the solicitation.14: Do not deviate from the stated RFP evaluation factors. Do not give importance to specific factors, subfactors or criteria not expressly stated in the solicitation. 15: Do not evaluate an offeror’s proposal based on a mechanical application of an undisclosed Government metric that turns into a go/no go criterion.16: Err on the side of laying it all out there and disclose “correctable” items. 17: Point out all significant weaknesses and deficiencies that must be corrected for an offeror to have a reasonable chance for award. Award Determination:18: Documentation must provide strong rationale for the decision and identify weaknesses, significant weaknesses, and deficiencies, as well as, strengths and risks.19: The file should contain contemporaneous documentation and records considered in assessing past performance or experience.20: Past performance and experience should be risk evaluations and should rarely be the ultimate basis for award.Plan carefully at the outset; pay attention to detail in documentation; be fair, and practice ongoing and effective communication (see the various Myth Buster memos for communication best practices.) Issues with the evaluation of past performance and experience are not unique to any particular solicitation. Care must be taken to avoid the trap of believing that the evaluation criteria and methodology that worked before will work for every acquisition. ................
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