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 Past Performance as a De Facto Responsibility Ddetermination
By FormerCO4AF on Wednesday, February 12, 2003 - 03:40 pm:

Is it just me or does anyone else have a concern with the GAO ruling here?

This ruling sounds to me like now any SB contractor with a performance rating less than, lets say a large firm that costs more, can now protest under Responsibility challenge.

In my opinion (for what its worth) Past Performance is not a responsibility check, rather a system which allows you to partner with those firms that, when compared with their peers, are the best performers.

Maybe in this instance they are calling it responsibility since there was only one offeror? Sounds like someone didn't conduct enough market research to ensure adequate competition availability. Thats a key step in competative 8(a)'s restricted to one region.

By joel hoffman on Wednesday, February 12, 2003 - 04:16 pm:

I don't have a problem with the ruling. The Government declined to award to an 8(a) firm because it rated the firm's "past performance" as marginal/lack of confidence, due to size of project experience and other relevancy issues. It is clear that the Government eliminated the firm from consideration for an evaluation factor, which was a "responsibility" type factor. It was required to refer the matter to the SBA for a competency determination. That is a settled principle.

Although the factor was set up using "comparative criteria", there was only one offeror. The rating then became a defacto pass/fail criteria.

As an aside, I think that the Government screwed up the evaluation criteria, because it mixed "past performance" and "experience" evaluation criteria into one factor called "past performance".

The Government's primary concern in refusing to award the contract was really a lack of relevant experience - not the quality of the offeror's experience, which is what "past performance" is actually defined as in FAR.

The GAO has previously held that the Government can establish minimum "experience" criteria, (without having to refer an unacceptable small business firm to the GAO for a determination of competency). When the Government establishes a mimimum experience factor, generally, the specific minimum experience requirement is spelled out in the evaluation criteria in the RFP.

Here, I think the Government used "comparative" criteria for both aspects (experience and past performance), without setting a minimum experience requirement. Then they said the offeror didn't have enough relevant experience.

They deserved to lose this protest for 1) not separating past performance from experience 2) using poor evaluation criteria and 3) not going to the SBA once they boxed themselves in with their rating criteria. happy sails! joel

By Eric Ottinger on Wednesday, February 12, 2003 - 04:43 pm:


I can't find your case. Could you give us a cite?


By joel hoffman on Wednesday, February 12, 2003 - 05:14 pm:

Eric, it's the one cited above. It was just published.

Are you talking about the GAO decisions that confirm that the Government can establish mimimum "experience" criteria? I've read a couple of such decisions in the last year or two. One involved my old office, the Mobile District, Corps of Engineers on a design-build project at an Air Base in Florida. I don't remember the cite, but it was in 2002. I'll call my associates in the morning to find the name of the company. happy sails! joel

By joel hoffman on Wednesday, February 12, 2003 - 05:23 pm:

Eric, on some projects, Mobile District has started using streamlined evaluation criteria, which include a minimum experience factor. The offeror in the specific protest complained that this amounts to a defacto debarment for firms that don't meet the rigorous minimum experience standards. The GAO said the Government has some discretion, if it legitimately determines that some minimum relevant experience is necessary. I have some personal reservations about their minimums, but the GAO was pretty 'liberal' in their decision. happy sails! joel

By Eric Ottinger on Wednesday, February 12, 2003 - 05:28 pm:


Your "minimum" corporate experience factor sounds like a "definitive responsibility factor" to me. I'm confused.


By FormerCO4AF on Wednesday, February 12, 2003 - 06:00 pm:

I don't think the minimum experience has much to do with responsibility. Minimum experience should be used to make a definitive pool of peers in which to rate contractors past performance.

Responsibility is more of a check of the contractors current abilities and status. There's a lot of things that can happen to a corporation after past projects that would effect responisbility standing for a new award.

Joel, I agree the agency screwed up on this one.
1.My opinion is it should never have received a rating. The protest showed there were three checks. First was conformance to RFP. If the contractor submits other than whats asked for its determined non-responsive and therefore not available for the evaluation team to look at and rate.

2. It's apparent the agency either did not conduct effective market research or has a bad SBA office and relied on poor data for contractor resources. If your going to do a competative 8(a) solicitation and restrict it to a specific region, you better be VERY comfortable that you will receive adequate competition.

I just don't want to see the Past Performance process more convoluted to where if you rate a lower priced small business below a higher priced large business that you have to then do a COC with the SBA. I like to be in a position where I can partner more with the exceptional performers (at a reasonable price) rather than having to go with the ok performer just because they are lowest price. I think its good for the industry. And I'm definitely not saying small businesses or 8(a)'s are only OK performers. I am a huge supporter of the program. While in the AF conducting accident recovery operations it was normally the small businesses that opened at midnight and provided unquestionable support when the large business wouldn't help.

By Cherokee21 on Wednesday, February 12, 2003 - 08:01 pm:

Though not on point with the above decision, your discussion on minimum corporate experience relates to a scenario that I have been looking at recently. What would be your take on a newly formed 8(a) that entered the program based on a waiver that they were not required to have a two year business history based on the qualifications of the owner and principals? If the owner and principals years of experience far exceeded managing projects of greater size than the above, would this require a different consideration of what constitutes minimum experience?

By joel hoffman on Wednesday, February 12, 2003 - 08:45 pm:

Cherokee21, In the even that a firm cannot directly show relevant corporate experience, we can and should take into account relevant experience of key personnel under the corporate experience evaluation factor(the requirement is consistent with GAO protest decisions). happy sails! joel

By joel hoffman on Wednesday, February 12, 2003 - 08:59 pm:

FormerCO4AF, I don't think this GAO opinion is really anything new. The GAO has maintained consistency in allowing you to give consideration to a higher rated performer. Here, a key distinction is that there was only one offeror.

The problem ensues when you effectively disqualify a small business under the past performance factor. It is proper to use comparative ratings between firms, avoiding eliminating a small business via an "unqualified" rating. If you disqualify the firm, you must consult with the SBA. Of course, if the firm is the only competitor, you pretty well have to refer to the SBA's competency determination procedures if the past performance factor is rated low enough that you wouldn't award the contract to the firm. happy sails! joel

By joel on Wednesday, February 12, 2003 - 09:12 pm:

Cherokee21, see Bob's Wifcon Bid Protest page at http://www.wifcon.com/pd15305a2iii.htm

Check out the discussion on the DRA Software Training protest, B-289128; B-289128.2, December 13, 2001 for a case on point to your question. happy sails! joel

By Eric Ottinger on Wednesday, February 12, 2003 - 10:15 pm:


Long before OFPP started the current push to emphasize past performance, the GAO took the position that corporate past performance was usually the experience of the corporate entity; however, for new starts the experience of key employees and managers should be considered.

OFPP and DoD both have guides and they are very clear on this point.


By Cherokee21 on Wednesday, February 12, 2003 - 10:17 pm:

Most excellent Joel, thank you. As always, I am impressed by your inputs

By cherokee21 on Wednesday, February 12, 2003 - 10:20 pm:

As I am by yours, Eric, thanks.

By joel hoffman on Wednesday, February 12, 2003 - 11:10 pm:

Folks, I may have been a little misleading. You can give consideration to any firm for relevant experience by its key employees. It just seems to be an issue in cases where a firm can't otherwise show direct corporate experience. happy sails! joel

By joel hoffman on Thursday, February 13, 2003 - 08:19 am:

Eric, the case I'm looking for involved C. Lawrence Construction ~ I don't have the B- number, yet. Still looking.

Cherokee21, check out this protest for an example where the Government successfully defended a comparative past performance evaluation and didn't have to refer the rating of the unsuccessful, small business offeror to the SBA: Matter of: Goode Construction, Inc. File: B-288655; B-288655.2; B-288655.3, Date: October 19, 2001

happy sails! joel

By joel hoffman on Thursday, February 13, 2003 - 08:42 am:

Eric, try this case. I don't have a link to the case, itself:


Matter of C. Lawrence Construction Company, Inc. (January 2002) Comp. Gen. No. B-289341

The U.S. Army sought proposals, under a qualifications-based system, to build an aircraft hangar and associated facilities. It required contractors to list at least five projects valued at $5-10 million which were "similar in scope to . . . aircraft hangars and/or light industrial type facilities which may include pre-engineered metal building frame, paving and utility work." One contractor protested on the grounds that this would prevent small, emerging businesses from competing for the work. The Army responded that it needed to know that the contractors are capable of building projects of this size and to be able to determine whether a contractor had a trend of sustained, continuous performance.

The Comptroller General allowed the requirement. It allows evaluation criteria "so long as the criteria used reasonably relate to the agency's minimum needs in choosing a contractor that will best serve the government's interests." It was not unreasonable to look for trends in contractors' work and since the Project would cost at least $7,500,000, the dollar limitations were acceptable."

Eric, it seems that this company is very active in the litigation area. There were a lot of hits under that name. Another GAO case involved a comparative evaluation, where the Government deemed this company's relevant experience to be a "deficiency". The GAO didn't specifically rule on the deficiency issue, but decided the protest on other principles. That case is "Matter of C. Lawrence Construction Company, Inc. File: B-287066, Date: March 30, 2001
happy sails! joel

By joel on Thursday, February 13, 2003 - 08:53 am:

Ha, I finally found it - where? It's in Bob's Wifcon pages. go to http://www.wifcon.com/pd11002a1.htm and look at the bottom of the page for the link to the decision! happy sails! joel

By Anonymous on Thursday, February 13, 2003 - 10:23 am:

Goode Construction is here too.


By Eric Ottinger on Thursday, February 13, 2003 - 12:08 pm:


These topics are covered in the OFPP and DoD Guides.




I am still looking for the case where the Government established a “minimum” experience factor (separate from the Past Performance factor) which the GAO did not consider to be a responsibility determination, notwithstanding that minimum clearly connotes Pass/Fail.

Lawrence appears to be a case with a single “past performance” factor including elements of both past experience and past performance. That is, performance is only considered for past contracts which meet certain minimum size and scope criteria.


By Vern Edwards on Friday, February 14, 2003 - 10:27 am:

Two comments.

First, I agree with Joel in that there is nothing new or alarming about the GAO decision cited by FormerCO4AF, Phil Howry Company, B-291402, Feb. 6, 2003. There is no new law in that decision and it does not have wide applicability. It is interesting only because of the unique circumstance that the agency received only one proposal.

Second: As for evaluating the experience (or past performance) of an offeror based on its proposed personnel or subcontractors, I have long taken the stand that agencies should evaluate offerors' organizational experience and past performance separately from the experience and past performance of their actual and prospective employees or subcontractors. I have done so for a very good reason -- they are very different things.

The experience and past performance of a firm are embodied and reflected in its policies and procedures and organizational culture, which are important to its prospects for success. When a firm has little or no experience with a certain kind of work, it may not have the organizational "infrastructure" that would ensure or enhance its prospects for successful performance. The firm can try to make up for this lack by hiring managers and employees with experience in such work, and by subcontracting parts of the work, but new managers, employees and subcontractors may not be effective in their new relationship. They may not prosper in their new assignment. New managers may not have enough time to establish and implement effective policies and procedures and to indoctrinate their new colleagues and subordinates. They may not get along with their boss or their peers if performance becomes stressful. Subcontractors who have not worked with the prime before may not work well with their new customer.

For these reasons and more, I have urged agencies to evaluate organizational experience, key personnel and subcontractors separately and then take into account the kinds of considerations I have just described when integrating their assessments of each of the competing offerors. I would evaluate a firm with organizational experience more highly than a firm without it, but which has sought to make up for its lack of experience through new hires or subcontracts.

It is not news to old timers here that I do not respect either the OFPP or the DOD guides, because I think that they do not adequately address this issue. The DOD guide, for example, seems to treat the idea of crediting an offeror with the past performance of its key personnel and subcontractors as nothing more than a way to avoid having to give the firm a "neutral" rating. It does not address the considerations that I discussed above and is thus inadequate. FAR § 15.305(a)(2)(iii) says that agencies "should" take into account key personnel and subcontracts, it does not say "shall" and it does not say how to do it.

A well-drafted RFP will say that if an offeror, as an organization, has no experience in doing the work, then it will be evaluated accordingly. It should say that if the offeror has no organizational record of past performance it will receive a "neutral" rating. The RFP should say that offerors will be credited for the experience and past performance of their key personnel and subcontractors, if appropriate, under separate evaluation factors.

By Eric Ottinger on Friday, February 14, 2003 - 11:51 am:

As we used to say in the army, “Opinions are like noses, everyone has one.” However, most of us try to disagree without being disrespectful.

When we first had this argument there was a speculative interpretation of some case law to back up Vern’s argument. I was not impressed by the case (one each) because it appears that plaintiffs counsel was incoherent and the Comp. Gen. was doing its best to find something halfway logical to respond to. (The solicitation’s selection scheme wasn’t much better.) The complaint (as best the Comp. Gen. could make it out) was that the evaluators double counted by evaluating the same issue under two different factors. The Comp. Gen. demonstrated that this was not the case. (Incidentally -- if I remember correctly -- financial capability was lumped with numerous other factors under “Technical Approach.” I’m sure the Comp. Gen. found this greatly amusing, but it wasn’t an issue in the case.)

Vern may not respect the DoD and OFPP Guides, but it is evident that the courts and the Comp. Gen. do respect the guides.

Personally, I prefer to treat past performance and experience as separate factors.

With the push to use the minimum number of selection factors, there is a tendency to lump disparate issues in a single factor. Personally, I would rather have a sharper focus and more factors (or subfactors) as long as the factors produce significant discriminators. However, I try not to confuse my personal preferences with policy.

In any case, treating experience as a separate factor would not have solved the Army’s problem. It would still have been viewed as a pass/fail and the Comp. Gen. would have wanted a COC.

Just to be perfectly clear-- The Guides clearly distinguish experience from past performance. That isn’t the issue.

Vern should back up his argument with a case or admit this is all a personal hobbyhorse.


By Vern Edwards on Friday, February 14, 2003 - 12:05 pm:


Calm down. I did not intend my comment to be any criticism of you or attack on you. I'm sorry if you interpreted it in that way.

Now, why are you asking me to produce a case? I agree with you that if an agency establishes a minimum requirement for experience and makes no comparative assessment, then it is effectively using experience as a responsibility criterion. What did I say in my post that makes you think I disagree with you? I did not even address that question. What argument of mine are you talking about? What case?

Go get some water (no more coffee for you), re-read what I said, and then if you are taking issue with me for some other reason come back and explain yourself.


By Vern Edwards on Friday, February 14, 2003 - 12:21 pm:


If you want a case in which an award was protested because the agency distinguished between the past performance of the offeror and its proposed subcontractors, and then down-scored the offeror because it, as prospective prime, lacked experience even though its proposed subcontractors had experience, see: Alpha Data Corporation, B-291423, December 20, 2002. The protest was denied. The GAO said:

"While Federal Acquisition Regulation (FAR) § 15.305(a)(2)(iii) directs agencies to take into account past performance information regarding subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the acquisition, the significance of, and the weight to be assigned to, a subcontractor's past performance is a matter of contracting agency discretion. See Loral Sys. Co., B-270755, Apr. 17, 1996, 96-1 CPD ¶ 241 at 5; see also Strategic Res., Inc., B-287398, B- 287398.2, June 18, 2001, 2001 CPD ¶ 131 at 5-6. Similarly, the weight to be assigned a prime contractor's past performance--or lack thereof--should, in our view, be considered a matter of contracting agency discretion. Here, because the RFP solicited services in support of SOF aircraft and weapons systems, the agency determined that it was important that the prime contractor itself have had some previous experience with SOF programs."

Does this help?

By Vern Edwards on Friday, February 14, 2003 - 12:33 pm:


Here's a quote from Sikora & Fogleman, B-236960, Jan. 17, 1990:

"Under experience, the RFP also required the offeror to identify and demonstrate its organizational experience performing contracts for similar requirements. S & F did not demonstrate such experience, but maintains that the experience of its key personnel, particularly the experience which one of its principals gained as an employee of the contracting agency, should be attributed to the organization. However, the RFP called for evaluation of corporate experience separately from the experience of the individual employees, which was also evaluated. We have recognized that the firm's experience is different from its staffs' individual experience, and we consider HCFA's separate evaluation of these areas to be proper. Professional Analysis, Inc., B-224096, Nov. 16, 1986, 86-2 CPD ¶ 579; Communications and Data Sys. Assocs., B-223988, Oct. 29, 1986, 86-2 CPD ¶ 491."

By Vern Edwards on Friday, February 14, 2003 - 12:40 pm:


Here's another, from Blue Rock Structures, Inc., B-287960.2, Oct. 10, 2001:

"We have no basis to question the reasonableness of the agency's conclusion that one principal's prior project management experience gained while working under the control of a different and established firm, standing alone, does not demonstrate the ability of that principal's newly-formed corporation to perform similar work successfully. See York Sys. Corp., B-237364, Feb. 9, 1990, 90-1 CPD ¶ 172 at 3-4. Further, as stated above, the RFP here specifically differentiated between the evaluation of a firm's corporate experience, and its key personnel's experience (in fact, key personnel experience was to be given less weight than the firm's corporate experience), and the protester's proposal was, in fact, given full credit for the principals' experience under that key personnel subfactor. The record thus provides no reason to question the reasonableness of the evaluation of corporate experience, which was consistent with the RFP's evaluation terms."

Is this what you were looking for?

By Eric Ottinger on Friday, February 14, 2003 - 12:44 pm:


You win. Wrong argument.

Your disrespect was directed to the DoD and OFPP Guides.

I agree that there should be a clear distinction between "corporate" past performance/experience and the experience of key personnel and subcontractors. I would go farther and argue that there is such a thing as generalized corporate past performance entirely distinct from experience. That is-- If the management of a firm has a solid record of success in various undertakings, I would expect that they will find a way to get the job done successfully, even if they have never done this particular work before.

However, you will not find this view in the case law or any official policy guides.


By Vern Edwards on Friday, February 14, 2003 - 12:51 pm:


No problem.

But I'm not sure that I follow your last comment. What view is not in the case law?


By Eric Ottinger on Friday, February 14, 2003 - 01:17 pm:


I was taking some folks to task for speed reading and committed the same sin myself. Again, apologies.

I am not aware of any authority for the proposition that there is generalized corporate past performance entirely distinct from experience doing similar work.

The guides are a work in progress. Doctrine regarding past performance was pretty chaotic before the guides. The current guides are the second edition. I am sure that the third edition will be even better.


By Vern Edwards on Friday, February 14, 2003 - 01:33 pm:


No problem. I just had to cop to speed reading in the thread on competition.