Posted on 2/27/2012 6:00 PM

ADVERSE PAST PERFORMANCE REPORTS: PROTEST SUSTAINED

GAO recently sustained a protest where the agency failed to conduct discussions with the protester regarding adverse past performance reports that the protester had not previously had an opportunity to address.

As a general matter, GAO said, the evaluation of an offeror's past performance is a matter within the discretion of the contracting agency, and GAO will not substitute its judgment for "reasonably based" past performance ratings.  However, GAO will question an agency's evaulation conclusions where they are unreasonable or not properly documented.  The critical question is whether the evaluation was conducted fairly, reasonably and in accordance with the solicitation's evaluation scheme.  Moreover, the evaluation must be based on relevant information sufficient to make a reasonable determination of the offeror's past performance.

In the case, the agency argued it did not consider positive past performance information reliable.  GAO dismissed this argument since the agency had considered similar information other offerors had submitted with their proposals.

It is a fundamental precept of negotiated procurements that discussions, when conducted, must be meaningful, equitable and not misleading, GAO reiterates.  Discussions must not mislead offerors and must identify deficiencies and significant proposal weaknesses that could reasonably be addressed in a manner to materially enhance the offeror's potential for receiving contract award.  Agencies are also required to provide an offeror with a chance to address adverse past performance information to which the offeror has not previously had an opportunity to respond.

While discussions must be meaningful, leading an offeror into the areas of its proposal requiring amplification or revision, the agency is not required to spoon feed an offeror as to each and every item that could be raised to improve its proposal.

Finally, GAO said an agency cannot escape its obligations to conduct discussions in a reasonable manner by characterizing an evaluated weakness in past performance as something less than adverse.  Although agencies must advise offerors during discussions of adverse past performance regarding which the offeror has not yet had an opportunity to respond, GAO says an offeror is not entitled to discussions if it has perviously had an opportunity to address the issue with the agency.

bill@spriggslawgroup.com

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