Evaluating the “Past Performance” of Federal Contractors: Legal Requirements and Issues

Congressional research reportFeb 5, 2015

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Evaluating the “Past Performance” of Federal

Contractors: Legal Requirements and Issues

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February 5, 2015

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R41562

Evaluating the “Past Performance” of Federal Contractors

Summary

Poor performance under a federal contract can have immediate consequences for contractors, who

could be denied award or incentive fees, required to pay damages, or terminated for default. In

addition, it could affect their ability to obtain future contracts because federal law generally

requires agencies to evaluate contractors’ past performance and consider past performance

information when making source selection decisions in negotiated procurements and determining

whether prospective contractors are “responsible.” “Past performance” refers to performance on

“active and physically completed contracts” and certain orders under existing contracts.

Federal law generally requires agencies to evaluate and document contractor performance on

contracts or orders whose value exceeds the simplified acquisition threshold (generally

$150,000). The evaluation must generally address the quality of the product or service supplied

by the contractor, its efforts to control costs, its timeliness and compliance with schedules, its

conduct of management or business relations, its performance in subcontracting with small

businesses, and other applicable factors (e.g., tax delinquency). The evaluation and any contractor

response comprise the past performance information that is stored in government databases (e.g.,

Past Performance Information Retrieval System (PPIRS), Federal Awardee Performance and

Integrity Information System (FAPIIS)) and may be used in future source selection decisions.

Federal law also generally requires agencies to consider contractors’ past performance when

making source selection decisions in negotiated procurements whose value exceeds the simplified

acquisition threshold. In a negotiated procurement, the contract is awarded to the offeror whose

proposal represents the “best value” for the government based on various factors identified in the

solicitation. These factors typically must include price and past performance. However, other

factors may be considered, and procuring agencies determine the weight given to various factors.

Additionally, agencies are required by law to consider whether the contractor has a “satisfactory

performance record” when determining whether the contractor is sufficiently “responsible” to be

awarded a federal contract. Agencies generally cannot award a contract without determining that

the contractor is “responsible.” While agencies are generally prohibited from repeatedly finding a

contractor nonresponsible based upon the same deficient past performance, they may debar or

suspend contractors for willful failure to perform under a contract or contracts, or for a history of

failure to perform or of unsatisfactory performance of a contract or contracts.

Reports alleging that contractors received new contracts or orders despite poor performance under

prior ones have recently prompted interest in the role that evaluations of past performance play in

contracting, as well as attempts by some Members of Congress and the Obama Administration to

strengthen requirements pertaining to performance evaluations. The 112th Congress enacted

legislation that requires the Department of Defense (P.L. 112-81) and the Federal Acquisition

Regulatory Council (P.L. 112-239) to develop “strateg[ies] for ensuring” that past performance

reports are timely, accurate and complete; and give contractors 14 days to comment on, rebut, or

supplement past performance reports. The 113th Congress also enacted legislation addressing

certain issues relating to past performance (P.L. 113-6, P.L. 113-291), although this legislation

was narrower in scope than that enacted by the 112th Congress. In addition, the Obama

Administration updated the Federal Acquisition Regulation (FAR) in 2013 to standardize the

factors used in evaluating contractors’ performance, and require that all past performance

information be entered into the Contractor Performance Assessment Reporting System (CPARS).

It made further updates to the FAR in 2014 to implement P.L. 112-81 and P.L. 112-239.

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Evaluating the “Past Performance” of Federal Contractors

Contents

Evaluating and Documenting Performance ..................................................................................... 2

Contents of Evaluations ............................................................................................................. 3

Procedures for Compiling, Posting, and Using Evaluations...................................................... 4

Contractor Challenges to Performance Evaluations .................................................................. 6

Consideration of Past Performance in Source Selection in Negotiated Procurements .................... 9

Past Performance as an Evaluation Factor .............................................................................. 11

Protesting Agency Evaluations of Past Performance............................................................... 15

Other Consideration of Past Performance in Source Selection ............................................... 16

Past Performance as a Criterion in Responsibility Determinations ............................................... 17

“Satisfactory Performance Record” As Condition for Contract .............................................. 18

Protests of Responsibility/Nonresponsibility Determinations ................................................. 19

De Facto Debarment ............................................................................................................... 20

Debarment and Suspension Under the FAR ............................................................................ 21

Tables

Table 1. Various Exchanges Potentially Involving Past Performance Information ....................... 14

Contacts

Author Contact Information........................................................................................................... 22

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Evaluating the “Past Performance” of Federal Contractors

oor performance under a federal contract can have immediate consequences for

contractors, who could potentially be denied award or incentive fees, required to pay

damages, or terminated for default.1 In addition, it can affect their ability to obtain future

contracts because federal law generally requires agencies to evaluate contractor’s “past

performance” and consider past performance information when making source selection decisions

in negotiated procurements and when determining whether prospective contractors are

“responsible.” “Past performance” refers to contractors’ performance on “active and physically

completed contracts” and certain orders under existing contracts.2

Reports alleging that some contractors received new contracts despite allegedly deficient

performance under prior or current contracts have recently prompted interest in the role that

evaluations of past performance play in federal contracting,3 as well as attempts by some

Members of Congress and the Obama Administration to improve agencies’ compilation and use

of past performance evaluations. The 112th Congress enacted legislation that requires the

Department of Defense (DOD) (P.L. 112-81) and the Federal Acquisition Regulatory Council

(P.L. 112-239) to develop “strateg[ies] for ensuring” that past performance reports are timely,

accurate and complete; and would give contractors 14 days to comment on, rebut, or supplement

past performance reports. The 113th Congress also enacted legislation addressing certain issues

relating to past performance, although such legislation was narrower in scope than that enacted in

the 112th Congress.4 In addition, the Obama Administration updated the Federal Acquisition

Regulation (FAR) in 2013 to standardize the factors used in evaluating contractors’ performance,

and require that all past performance information be entered into the Contractor Performance

Assessment Reporting System (CPARS).5 It made further updates to the FAR in 2014 to

implement P.L. 112-81 and P.L. 112-239.6 Contractors, however, have expressed concern that

increased emphasis on past performance information could lead to de facto debarment or

“blacklisting” of contractors.7

See 48 C.F.R. §§11.500-11.503 (liquidated damages); 48 C.F.R. §§16.401-16.406 (award and incentive fees); 48

C.F.R. §§49.401-49.406 (termination for default).

48 C.F.R. §2.101. As used here, an “order” is a request for work under an existing contract.

For example, concerns about contractors’ past performance factored significantly in discussions about the problematic

roll-out of HealthCare.gov. See generally archived CRS Report R43368, Contractors and HealthCare.gov: Answers to

Frequently Asked Questions , by (name redacted), (name redacted), and (name redacted).

See Consolidated and Further Continuing Appropriations Act, 2013, P.L. 113-6, §520(d), 127 Stat. 370 (March 26,

2013) (requiring the Department of Homeland Security Inspector General to include past performance problems in its

review of agency contracts awarded using other than “full and open competition”); Carl Levin and Howard P. “Buck”

McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, §821,—Stat.—(December 19, 2014)

(making failure to comply with a subcontracting plan under the DOD Comprehensive Subcontracting Plan Test

Program a factor in evaluations of past performance), id. at §824,—Stat.—(requiring that DOD regulations regarding

reverse auctions provide for past performance information created by third parties conducting reverse auctions on the

department’s behalf be made available to offerors).

See Dep’t of Defense, Gen. Servs. Admin., & Nat’l Aeronautics & Space Admin., Documenting Contractor

Performance: Final Rule, 78 Fed. Reg. 46783 (August 1, 2013).

See also Dep’t of Defense, Gen. Servs. Admin., & Nat’l Aeronautics & Space Admin., Contractor Comment Period,

Past Performance Evaluations,: Final Rule, 79 Fed. Reg. 31197 (May 30, 2014) (implementing changes made by P.L.

112-81 and P.L. 112-239).

See, e.g., Tom Spoth, Contractor Performance Data to Become Public, Federal Times, August 6, 2010, available at

http://www.federaltimes.com/article/20100806/ACQUISITION03/8060301; Matthew Weigelt, New Law Puts

Contractor Performance in Public Spotlight, Wash. Tech., August 5, 2010, available at

http://washingtontechnology.com/articles/2010/08/05/obama-opens-fapiis-to-the-public.aspx. Such contractors worry

that, as the weight given to past performance information increases, contractors will be effectively excluded from future

contract opportunities based upon information about them that they may not be aware of, or whose accuracy and

(continued...)

Congressional Research Service

Evaluating the “Past Performance” of Federal Contractors

This report provides an overview of existing legal requirements pertaining to past performance,

including the issues raised by contractors’ attempts to challenge (1) agency evaluations of their

past performance, (2) source selection decisions based, in part, on consideration of past

performance information, and (3) responsibility determinations.

Evaluating and Documenting Performance

While agencies have long informally evaluated contractors’ performance and generally kept some

records regarding this performance, at least during the term of the contract, they were not

required to compile evaluations of past performance until 1993. Then, as part of reforms requiring

agency consideration of past performance in certain source selection decisions, discussed below,

the Office of Federal Procurement Policy (OFPP) directed federal agencies to “[p]repare

evaluations of contractors’ performance on all new contracts over $100,000.”8 One year later,

Congress enacted the Federal Acquisition Streamlining Act (FASA) of 1994, which established a

statutory basis for agency evaluation of past performance.9 Among other things, FASA required

OFPP to prescribe

policies for the collection and maintenance of information on past contract performance that,

to the maximum extent practicable, facilitate automated collection, maintenance, and

dissemination of information and provide for ease of collection, maintenance, and

dissemination of information by other methods, as necessary.10

OFPP met this requirement, in part, by promulgating regulations regarding “contractor

performance information” in Subpart 42.15 of the FAR.11 These regulations, as amended,

(...continued)

objectivity they cannot meaningfully challenge (e.g., information communicated between agency personnel but not

incorporated into a formal evaluation of contractor performance). Commentators have also noted that increased

consideration of past performance can be seen to interject additional subjectivity into the procurement process. See,

e.g., Kimberly R. Heifetz, Striking a Balance Between Government Efficiency and Fairness to Contractors: Past

Performance Evaluations in Government Contracts, 51 Admin. L. Rev. 235, 254 (1998). It has been suggested that this

subjectivity could potentially give rise to more bid protests. See, e.g., Michael J. Davidson, Protest Challenges to

Integrity-based Responsibility Determinations, 14 Fed. Cir. Bar J. 473 (2004/2005). It has also been noted that not

every allegedly poor performance by a contractor is the contractor’s fault. See, e.g., id. at 502 (“Contractors are

frequently under investigation for alleged [misconduct], and in a large percentage of those cases the allegations are

either unfounded or unproven.”); George M. Coburn, Unfavorable Past Performance Determinations as De facto

Debarment, 31 Proc. Law. 26, 27 (1996) (“Experience shows that a contractor’s apparent ‘seriously deficient’

performance ... is sometimes found ... to be a performance failure that is beyond the contractor’s control and without

fault or negligence, and on occasion, one for which the Government is contractually liable.”).

Exec. Office of the Pres., Office of Mgmt. & Budget, Office of Fed. Procurement Policy, Final Issuance of Policy

Letter 92-5, 58 Federal Register 3573, 3575 (January 11, 1993). OFPP Policy Letter 92-5 further added that

“[e]valuations shall be made during contract performance, as required for contract administration purposes and at the

time the work under the contract is completed.” Id. Previously, the FAR requireed evaluations of contractor

performance only “at the time the work under the contract or order is completed,” or on an interim basis, in the case of

multiyear contracts. 48 C.F.R. §42.1502(a) (2012). However, the FAR was amended in August 2013 to require, among

other things, that past performance be evaluated “at least annually and at the time the work under a contract or order is

completed.” Documenting Contractor Performance, 78 Fed. Reg. at 46788 (codified at 48 C.F.R. §42.1502(a)).

P.L. 108-355, §1091(b), 108 Stat. 3272 (October 13, 1994) (codified at 41 U.S.C. §1126).

Id.

Gen. Servs. Admin., Nat’l Aeronautics & Space Admin., & Dep’t of Defense, Federal Acquisition Regulation; Past

Performance Information, 60 Federal Register 16718, 16719-20 (March 31, 1995).

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Evaluating the “Past Performance” of Federal Contractors

currently prescribe the content of contractor performance evaluations, as well as procedures for

the compilation, posting, and use of such evaluations.

The requirement that agencies evaluate contractor performance was imposed, in part, because

“performance assessment is a basic ‘best practice’ for good contract administration, and is one of

the most important tools available for ensuring good contract performance.”12 Additionally,

Congress and the executive branch hoped that written evaluations of contractor performance

would “improve the amount and quality of performance information available to source selection

teams,” which would, in turn, “enable agencies to better predict the quality of, and customer

satisfaction with, future work.”13 However, although OFPP, in particular, anticipated that agencies

would ultimately be able to rely almost exclusively on agency performance evaluations in their

source selection decisions,14 this does not seem to have occurred, as discussed below.15

Contents of Evaluations

Under Subpart 42.15 of the FAR, agencies are generally required to evaluate contractors’

performance on contracts or orders valued in excess of $150,00016 ($30,000 for architect-engineer

contracts, $650,000 for construction contracts) “at least annually and at the time the work under a

contract or order is completed.”17 Prior to August 2013, Subpart 42.15 left the content of this

evaluation largely to the agency’s discretion, requiring only the evaluation of the contractor’s

performance on and efforts to achieve any small business subcontracting goals.18 Agencies were

encouraged to consider other factors, such as “the contractor’s record of conforming to contract

Exec. Office of the Pres., Office of Mgmt. & Budget, Office of Fed. Procurement Policy, Best Practices for

Collecting and Using Current and Past Performance Information, May 2000, at Foreword, available at

http://www.whitehouse.gov/omb/best_practice_re_past_perf.

Id.

Office of Fed. Procurement Policy, A Guide to Best Practices for Past Performance, at 19 & 36 (1995) (copy on file

with the author) (encouraging agencies to rely on evaluations completed pursuant to Subpart 42.15 of the FAR in the

source selection process “to the maximum extent practicable”).

See infra notes 89 to 91 and accompanying text.

This amount generally represents the simplified acquisition threshold. However, in the case of supplies or services to

be used in support of a contingency operation or to facilitate defense against or recovery from nuclear, biological,

chemical, or radiological attack, the simplified acquisition threshold increases to $300,000 for contracts to be awarded

and performed inside the United States, and $1 million for contracts to be awarded and performed outside the United

States. 48 C.F.R. §2.101.

48 C.F.R. §42.1502(b) (general requirement); 48 C.F.R. §42.1502(e) (construction contracts); 48 C.F.R. §42.1502(f)

(architect-engineer contracts). Agencies must also evaluate performance on any construction or architect-engineer

contract that is terminated for default, regardless of its value, as well as on orders valued in excess of $150,000 placed

under the Federal Supply Schedules or an interagency contract. 48 C.F.R. §42.1502(c) & (f). They are, however, not

required to evaluate performance on orders valued in excess of $150,000 under single-agency task or delivery order

contracts, although they may conduct such evaluations if doing so “would produce more useful past performance

information for source selection officials.” 48 C.F.R. §42.1502(d). It should also be noted that agencies are not

prohibited from evaluating contractors’ past performance on contracts whose value is below the relevant monetary

thresholds, even if the contract does not expressly provide for such evaluations. See, e.g., Jacqueline R. Sims LLC v.

United States, No. 13-174C, No. 13-196C, Opinion and Order (Fed. Cl., February 25, 2014) (copy on file with the

author) (rejecting the argument that the agency exceeded its authority under the FAR, and breached the contract’s

terms, by preparing performance evaluations for contracts whose value was below the simplified acquisition threshold).

48 C.F.R. §42.1502(g) (2012). Section 8(d) of the Small Business Act requires that all contracts whose expected

value exceeds $650,000 ($1.5 million for construction contracts) incorporate a “subcontracting plan” that provides the

“maximum practicable opportunity” for various types of small businesses to participate in performing the contract. See

15 U.S.C. §637(d)(4)(D) (negotiated procurements); 15 U.S.C. §637(d)(5)(B) (sealed-bid procurements).

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Evaluating the “Past Performance” of Federal Contractors

requirements and to standards of good workmanship,” but were not obligated to do so under the

FAR provisions then in effect.19 The situation changed in August 2013, however, when the FAR

was amended to require that evaluation factors for each assessment generally

include, at a minimum, the following:

(i) [t]echnical (quality of product or service)[;]

(ii) [c]ost control [;]

(iii) [s]chedule/timeliness[;]

(iv) [m]anagement or business relations[;]

(v) [s]mall business subcontracting ...[; and]

(vi) [o]ther (as applicable) (e.g., late or nonpayment to subcontractors, trafficking violations,

tax delinquency, failure to report in accordance with contract terms and conditions, defective

cost or pricing data, terminations, suspension and debarments).20

Other factors could be considered in the agency’s discretion. Any required or other factors are

typically incorporated into a “performance assessment clause” or similar clause in the contract.21

Prior to August 2013, such clauses established the categories that agencies would use in rating

performance and the metrics used in applying particular ratings to specific conduct, both of which

could be quite broad.22 However, the 2013 FAR amendments standardized the rating categories to

be used by agencies, as well as defined how each rating (e.g., exceptional, marginal) is to be

used.23

Procedures for Compiling, Posting, and Using Evaluations

Subpart 42.15 of the FAR also requires agencies to follow certain procedures when compiling,

posting, and using performance evaluations. The contracting officer, or someone else who has

been delegated this responsibility, is to prepare the evaluation.24 However, the evaluation should

48 C.F.R. §42.1501 (2012). When the FAR was initially revised to require evaluation of contractor performance,

some contractors and commentators objected to certain of these criteria, most notably the contractor’s “commitment to

customer satisfaction” and “business-like concern for the customer’s interest,” on the grounds that the criteria are

inherently subjective. See, e.g., Unfavorable Past Performance Determinations, 31 Proc. Law. at 27. Despite such

concerns, however, their implementation does not appear to have generated particular controversy, beyond the

controversy generally associated with the issuance of allegedly biased or erroneous performance evaluations. See infra

note 39 and accompanying text.

48 C.F.R. §42.1503(b)(2)(i)-(vii).

See, e.g., Colonna’s Shipyard, Inc., ASBCA No. 56940, 2010-2 B.C.A. ¶ 34,494 (2010) (contractor’s performance to

be evaluated based on “technical (quality of product),” “schedule (timeliness of performance)” and “management”).

See, e.g., id. (performance to be rated as exceptional, very good, satisfactory, or marginal, with the marginal rating

used for performance that “does not meet some contractual requirements. The contractual performance of the element

or sub-element being assessed reflects a serious problem for which the contractor has not yet identified corrective

actions. The contractor’s proposed actions appear only marginally effective or were not fully implemented.”).

See 48 C.F.R. Tables 42-1 & 42-2.

48 C.F.R. §42.1503(a)(1)-(2). If no other person is designated, the contracting officer is responsible for performance

evaluations. 48 C.F.R. §42.1503(a)(2).

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Evaluating the “Past Performance” of Federal Contractors

generally be based on the experiences of the technical office, the program management office,

and quality assurance and end users, where appropriate, as well as those of the contracting

office.25 A copy of the evaluation should be provided to the contractor “as soon as practicable

after [its] completion,”26 with the contractor then having “up to 14 calendar days ... to submit

comments, rebutting statements, or additional information.”27 Prior to May 2014, contractors had

“a minimum of 30 days” to submit such information.28 However, the FAR was amended in May

2014 to shorten this period, in conformity with the requirements of P.L. 112-81 and P.L. 112-239.

Disagreements between the contractor and the contracting officer are reviewed “at a level above

the contracting officer,” although “[t]he ultimate conclusion on the performance evaluation is a

decision of the contracting agency.”29

The evaluation and any response from the contractor should be marked “source selection

information” and submitted to the Contractor Performance Assessment Reporting System

(CPARS),30 from which it is “automatically transmitted” to the Past Performance Information

Retrieval System (PPIRS).31 Marking the evaluation and response as “source selection

information” ensures that they cannot be released to anyone other than eligible government

personnel, or the contractor whose performance was evaluated, for at least three years.32 Because

of this limitation on access to performance evaluations, access to the CPARS and PPIRS

databases are similarly limited, and information about a contractor in these databases can only be

viewed by authorized government personnel or the contractor in question.33 Access to the Federal

Awardee Performance Integrity Information System (FAPIIS), which includes PPIRS information

48 C.F.R. §42.1503(a)(1)(i).

48 C.F.R. §42.1503(d).Delays of several months in completing evaluations would not necessarily be seen to be

impermissible under the FAR. See, e.g., Gray Owl Servs., Inc. v. United States, No. 13-963C, 2014 U.S. Claims LEXIS

793 (Fed. Cl., August 14, 2014). However, depending upon the circumstances, delays of several years could potentially

be seen to raise issues. See, e.g., Public Warehousing Co. K.S.C., ASBCA No. 58078, 2013-1 B.C.A. ¶ 35,460

(declining to dismiss a contractor’s claim regarding a performance evaluation whose issuance had been delayed for four

years “[b]ecause the [contracting officer’s] commitment to issue a decision by a specific date ... was not met and was in

actuality contingent upon the resolution of the criminal and civil cases filed against [the contractor in federal district

court].”); Metag Insaat Ticaret A.S., ASBCA No. 58616, 2013-1 B.C.A. ¶ 35,454 (“We find this extended passage of

time without a [contracting officer’s] decision to be unreasonable given the nature of the claim, and supports an appeal

on a deemed denial basis.”).

48 C.F.R. §42.1503(d).

48 C.F.R. §42.1503(b) (2012).

48 C.F.R. §42.1503(d). Some contracts contain language to the effect that the final performance rating is “the

unilateral determination of the reviewing official” and not subject to dispute or appeal beyond the agency. See, e.g.,

Colonna’s Shipyard, Inc., ASBCA No. 56940, 2010-2 B.C.A. ¶ 34,494 (2010). However, similar language has been

found to be unenforceable when used in other contexts. See, e.g., Burnside-Ott Aviation Training Center v. Dalton, 107

F.3d 854 (Fed. Cir. 1997) (finding that certain award fee determinations are reviewable notwithstanding contract

language like that quoted above), aff'g Burnside-Ott Aviation Training Center, ASBCA No. 43184, 96-1 B.C.A. ¶

28,102 (1996); Puyallup Tribe of Indians, ASBCA No. 29802, 88-2 B.C.A. ¶ 20,640 (contract’s sovereign immunity

provision cannot nullify the disputes clause), aff’d F.2d 1096 (Fed. Cir. 1989). See also infra notes 43 to 55 and

accompanying text.

48 C.F.R. §42.1503(d).

48 C.F.R. §42.1503(f).

41 U.S.C. §2102(a) (prohibiting disclosure of source selection information); 41 U.S.C. §2101(7) (defining “source

selection information”). See also 48 C.F.R. §42.1503(d) (“Disclosure of such information could cause harm both to the

commercial interest of the Government and to the competitive position of the contractor being evaluated as well as

impede the efficiency of Government operations.”)

See generally CRS Report R43111, Transforming Government Acquisition Systems: Overview and Selected Issues,

by (name redacted).

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Evaluating the “Past Performance” of Federal Contractors

along with contractor-submitted information and information from other federal databases, was

originally similarly limited.34 However, although Congress subsequently required that most

FAPIIS information be made publicly available on the web,35 past performance information was

explicitly exempted from such disclosure because of its protected status as source selection

information.36

Subpart 42.15 of the FAR further requires that agencies “use” recent evaluations of past

performance stored in PPIRS,37 but it does not specify for what they are to be used. This

provision presumably refers to consideration of agency past performance evaluations in source

selection decisions, as discussed in the following section. However, nothing in Subpart 15.3 of

FAR, which generally governs use of past performance as an evaluation factor, expressly requires

consideration in source selection decisions of the past performance evaluations that agencies are

required to complete under Subpart 42.15.38

Contractor Challenges to Performance Evaluations

Because of the potential use of agency performance evaluations in source selection decisions,

contractors are generally concerned about the contents of their evaluations and want to ensure that

these evaluations are accurate and unbiased.39 However, their ability to challenge their

evaluations outside the agency was historically limited, and they could generally only allege

improprieties in their evaluations in the course of bid protests challenging agency source selection

decisions based, in part, on the contents of these evaluations.40 This arguably afforded contractors

little relief from erroneous or biased evaluations because (1) the focus of the protest is upon the

See Duncan Hunter National Defense Authorization Act for FY2009, P.L. 110-417, §§871-873, 122 Stat. 4555-58

(October 14, 2008). Among other things, FAPIIS also includes brief descriptions of all civil, criminal, and

administrative proceedings involving federal contracts that resulted in a conviction or finding of fault, as well as all

terminations for default, administrative agreements, and nonresponsibility determinations relating to federal contracts,

within the past five years for all persons holding a federal contract or grant worth $500,000 or more.

See Consolidated Appropriations Act, 2010, P.L. 111-212, §3010, 124 Stat. 2340 (July 29, 2010) (“Section 872(e)(1)

of the Clean Contracting Act of 2008 (subtitle G of title VIII of Public Law 110–417 ... is amended by adding at the

end the following: ‘In addition, the Administrator shall post all such information, excluding past performance reviews,

on a publicly available Internet website.’”) (emphasis added).

48 C.F.R. §42.1503(d). See also Dep’t of Defense, Gen. Servs. Admin., & Nat’l Aeronautics & Space Admin.,

Federal Awardee Performance and Integrity Information System: Final Rule, 75 Federal Register 14059, 14063 (March

23, 2010).

48 C.F.R. §42.1503(g) (“Agencies shall use the past performance information in PPIRS that is within three years (six

for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order,

and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), e.g.,

terminations for default or cause.”) (emphasis added). However, Subpart 42.15 elsewhere states that “[t]hese

evaluations may be used to support future award decisions.” 48 C.F.R. §42.1503(d).

Policy guidance from OFPP does, however, encourage agencies to use performance evaluations completed under

Subpart 42.15 of the FAR for source selection purposes. See supra note 14 and accompanying text.

See, e.g., Todd Constr., L.P. v. United States, 85 Fed. Cl. 34, 36 (2008) (“Given the increasing importance of

performance reviews and prejudice to contractors from erroneous ratings, there should be some judicial forum available

to consider challenges to the fairness and accuracy of evaluations.”).

A “bid protest” is a formal, written objection to an agency’s solicitation for bids or offers, cancelation of a

solicitation, or award or proposed award of a contract. 31 U.S.C. §3551(1)(A)-(D). For more on bid protests, see CRS

Report R40228, GAO Bid Protests: An Overview of Time Frames and Procedures, by (name redacted) and (name

redacted). More recently, GAO has suggested that bid protests are not the proper forum to dispute the substance of

performance evaluations required under Subpart 42.15 of the FAR. See Ocean Tech. Servs., Inc., B-288659 (November

27, 2001).

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Evaluating the “Past Performance” of Federal Contractors

reasonableness of the contracting officer’s source selection decision, not the reasonableness of the

evaluation of the contractor’s past performance,41 and (2) the judicial and administrative tribunals

hearing bid protests give substantial deference to the contracting officer’s determinations in the

source selection process.42

More recently, however, disputes over performance evaluations have come to be seen as potential

claims under the Contract Disputes Act (CDA) of 1978. This trend began in 2004, when the U.S.

Court of Federal Claims issued its decision in Record Steel & Construction, Inc. v. United

States.43 The contractor in Record Steel had sued seeking, among other things, a declaratory

judgment that its evaluation be “corrected to reflect accurately” its performance under the

contract.44 The government countered by asserting that the court lacked jurisdiction because,

while the Tucker Act waives the government’s sovereign immunity as to “claims” arising under

the CDA, Record Steel’s letter to the contracting officer requesting that its performance rating be

reevaluated and changed did not constitute a claim since it did not seek relief “as a matter of

right” or arising from or related to the contract.45 The court disagreed.46 It found that it had

jurisdiction, assuming the other requirements of the CDA were met,47 because Record Steel’s

letter to the contracting officer constituted a “claim” as that term is defined in the FAR.48 In

reaching this conclusion, the court found that a request for reevaluation and/or change of

performance ratings was a “claim of right” because the FAR requires agencies to prepare such

evaluations for contracts of the size and type held by Record Steel.49 The court also rejected the

government’s assertion that the precedent of the boards of contract appeals, which had long

See, e.g., BLR Group of Am. v. United States, 84 Fed. Cl. 634, 647 (2008) (“It is conceivable that by the time the

contractor is able to challenge the evaluation, ... fading memories could hinder the contractor’s chances of success.”).

In addition, the contracting officer making the source selection decision is not necessarily the same person, or even

with the same agency, that produced the allegedly biased or erroneous evaluation of the contractor’s performance.

See infra notes 99 to 104 and accompanying text. Some commentators also suggest that challenges to past

performance evaluations raised during bid protests make the procurement process less efficient by disrupting agency

operations. See BLR Group, 84 Fed. Cl. at 647 (“The efficiency of the procurement process would be compromised by

forcing a contractor to protest an issue that could have been resolved at an earlier time under the [Contract Disputes

Act].”).

62 Fed. Cl. 508 (2004).

Id. at 509.

Id. 518-19. As sovereign, the United States is immune to suit without its consent. See, e.g., United States v.

Sherwood, 312 U.S. 584, 586 (1941). The Tucker Act waives this immunity as to claims against the United States

founded in the U.S. Constitution, federal statutes or regulations, or express or implied contracts with the United States.

28 U.S.C. §1491(a)(1). It also provides the court with “jurisdiction to render judgment upon any claim by or against, or

dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978, including ...

nonmonetary disputes in which a decision of the contracting officer has been issued under section 6 of that Act.” 28

U.S.C. §1491(a)(2).

Record Steel, 62 Fed. Cl. at 518.

For example, for the Court of Federal Claims to have jurisdiction over a CDA “claim,” the claim must have been

made in writing and submitted to the contracting officer for a decision. See 41 U.S.C. §7103(a).

Record Steel, 62 Fed. Cl. at 518. The CDA itself does not define “claim,” nor did the contract in question. The FAR,

however, defines a “claim” as “written demand or written assertion by one of the contracting parties seeking, as a

matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief

arising under or relating to the contract.” 48 C.F.R. §2.101 (definitions). See also 48 C.F.R. §52.233-1(c) (standard

Disputes clause used in federal procurement contracts).

Record Steel, 62 Fed. Cl. at 519 (noting that FAR Subpart 36.201(a)(1), which governs contracting for construction,

required the agency to prepare a performance evaluation).

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Evaluating the “Past Performance” of Federal Contractors

declined to exercise jurisdiction over challenges to performance evaluations, meant that the court

lacked jurisdiction.50

Then, on May 6, 2010, the Armed Services Board of Contract Appeals (ASBCA) also found that

it has jurisdiction over contractor challenges to performance evaluations.51 Previously, in a series

of decisions issued between 1991 and 2006, the ASBCA and other boards of contract appeals had

found that they lacked jurisdiction in such cases because a “performance evaluation under a

contract is an administrative matter not a Government claim, and a contractor’s request that a

contracting officer change an evaluation is not a contractor’s claim.”52 Like the decision in

Record Steel, the May decision of the ASBCA relied on the FAR’s definition of “claim” to find

that the contractor’s request that the board “rescind” the contractor’s evaluation constituted a

claim, although the board grounded the contractor’s entitlement to a “fair and accurate”

performance evaluation in the terms of the contract and the “implied ... duty of good faith and fair

dealing inherent in every contract,” not the FAR.53 A subsequent decision by the ASBCA

expanded upon the May decision by suggesting that earlier board decisions had been

misconstrued as holding that the boards always lacked jurisdiction over contractor challenges to

performance evaluations,54 and that the government’s duty to provide an “accurate and fair”

performance evaluation arises from both the FAR and the contract.55

Nonetheless, despite these recent decisions finding that the federal courts and boards of contract

appeals have jurisdiction to hear contractor challenges to allegedly erroneous or biased

performance evaluations, it is presently unclear what, if any, relief they might be able to grant.

This question was first directly addressed in the Court of Federal Claims’ decision on July 22,

Id. at 521. However, a subsequent decision of the Court of Federal Claims distinguished between performance

evaluations and PPIRS entries, finding that, while contractors are entitled by the FAR to a “fair and accurate”

performance evaluation, they are not similarly entitled to a “properly formatted PPIRS entry” since the relevant

regulations and policy guidelines “do not address the manner in which a PPIRS entry is displayed or formatted.” BLR

Group, 84 Fed. Cl. at 639. This decision also suggested that final Contractor Performance Assessment Reports

(CPARs) are not final decisions of the contracting officer for purposes of the CDA because they are issued by a

reviewing official, who is above the contracting officer, not the contracting officer. However, while only final decisions

of the contracting officer are generally disputable, the plaintiff’s claim survived because, assuming the reviewing

official is seen as issuing the performance evaluation, the contracting officer issues no decision, and the contracting

officer is otherwise required by the CDA to issue a decision “within a reasonable time,” or the claim is deemed denied.

BLR Group, 84 Fed. Cl. at 648.

Versar, Inc., ASBCA No. 56857, 2010-1 B.C.A. ¶ 34,437 (2010).

TLT Constr. Corp., ASBCA No. 53769, 02-2 B.C.A. ¶ 31,969 (2002). See also Aim Constr., ASBCA No. 52540, 071 BCA ¶ 33,466 (2006); Franklin’s Cleaning & Supply Co., GSBCA No. 16527, 06-1 BCA ¶ 33,139 (2005); G.

Bliudzius Contractors, ASBCA No. 42365, 92-1 BCA ¶ 24,605 (1991); Konoike Constr. Co., ASBCA No. 40910, 91-3

BCA ¶ 24,170 (1991).

Versar, Inc., ASBCA No. 56857, 2010-1 B.C.A. ¶ 34,437 (2010) (“[T]he Air Force was contractually obligated to

complete a performance assessment in good faith that was fair and accurate.”). This reliance on the “implied ... duty of

good faith and fair dealing inherent in every contract” is potentially significant because it could encompass aspects of

the performance evaluation process that are not explicitly addressed in the contract or regulations (e.g., the formatting

of PPIRS entries).

Colonna’s Shipyard, Inc., ASBCA No. 56940, 2010-2 B.C.A. ¶ 34,494 (2010). According to the board, the initial

case involving a past performance evaluation found only that the issuance of a performance evaluation, per se, did not

constitute a claim. The board in Colonna’s Shipyard also noted that a subsequent case found that the board had

jurisdiction when a performance rating claim is based upon a contract’s disputed terms. See Sundt Construction, Inc.,

ASBCA No. 56293, 09-1 BCA ¶ 34,084 (2009).

Colonna’s Shipyard, Inc., ASBCA No. 56940, 2010-2 B.C.A. ¶ 34,494 (2010). The contractor here also noted that

the government had an implied duty to produce an unbiased and accurate performance evaluation, but the board did not

address this issue.

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2009, in Todd Construction, L.P. v. United States.56 Todd Construction had asked the court to (1)

determine that the Air Force’s final evaluation of its performance was unlawful and should be set

aside and (2) direct the Air Force to remove the final performance evaluation from the

Construction Contractor Appraisal Support System (CCASS).57 The court, however, found that

neither form of relief was within its authority.58 It found that, while it has inherent authority to

grant declaratory relief,59 a declaration of rights would not resolve the case at hand because it

would not cause the performance evaluation to be changed or removed from CCASS.60 It

similarly found that its statutory authority to remand the case to the agency with directions that

the agency take “proper and just” steps could only be used to direct the agency’s attention to

matters that the court believes require further action to create an adequate record of the agency’s

decision, not to mandate particular factual determinations.61 Subsequent board of contract appeals

decisions also found that the boards lack authority to order an agency to rescind a poor

performance evaluation or revise the agency’s evaluation.62

Consideration of Past Performance in Source

Selection in Negotiated Procurements

Although not expressly required to do so, agencies appear to have considered past performance

when selecting vendors in “negotiated procurements” since at least the 1960s.63 A negotiated

88 Fed. Cl. 235 (2009). A December 9, 2008, decision in this case had found that the court had jurisdiction over the

contractor’s challenge to its performance evaluation on the same grounds discussed in Record Steel. See 85 Fed. Cl. 34

(2008).

Todd Constr., 88 Fed. Cl. at 248. Prior to July 1, 2009, agencies were not required to submit their performance

evaluations to PPIRS, and some, such as DOD, maintained their own databases (e.g., CCASS).

Id. at 243-44.

Id. (quoting Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) (“Jurisdiction is power to declare the law.”)).

Id. at 244 (“If the Court possess only the power to say ‘no, the performance evaluation is not fair and accurate,’ but

no authority to order any other action, the plaintiff would be essentially no better off than it is today. Even if the Court

could say ‘the performance evaluation should be set aside,’ but had no power to require any entity to take any action on

that conclusion, the declaratory relief would be meaningless.”). In so finding, the court distinguished prior cases, where

it had granted declaratory relief, from the present case by characterizing the prior cases as involving “live disputes” of

the “yes” or “no” sort, where “the consequences flowing from [the court’s] answer did not require further intervention

from a court or board.” Id. (citing CW Gov’t Travel, Inc. v. United States, 63 Fed. Cl. 369, 387-90 (2004) (declaring

whether the contract entitled the contractor to be the exclusive service provider); Alliant Techsystems, Inc. v. United

States, 178 F.3d 1260, 1271 (Fed. Cir. 1999) (declaring whether the exercise of an option was valid); Malone v. United

States, 849 F.2d 1441, 1445 (Fed. Cir. 1988) (declaring whether a termination for default was valid).

Todd Constr., 88 Fed. Cl. at 244-46. See 28 U.S.C. §1491(a)(2) (“In any case within its jurisdiction, the court shall

have the power to remand appropriate matters to any administrative or executive body or official with such direction as

it may deem proper and just.”). In its 2009 decision, the court granted Todd Construction the right to amend its

complaint, which the court had characterized as “not contain[ing] sufficient factual allegations to suggest entitlement to

remand,” in light of the recent decisions by the Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.

88 Fed. Cl. at 249. Subsequently, in 2010, the court found that revised complaint failed to state a basis on which relief

could be granted. See Todd Constr., L.P. v. United States, 94 Fed. Cl. 100, 116 (2010), aff’d by, 656 F.3d 1306 (Fed.

Cir. 2011).

Colonna’s Shipyard, Inc., ASBCA No. 56940, 2010-2 B.C.A. ¶ 34,494 (2010) (contractor seeking a declaration that

its performance scores are erroneous and a violation of the contract, as well as remand to the contracting officer with

instructions or advice on correcting the evaluation); Versar, Inc., ASBCA No. 56857, 2010-1 B.C.A. ¶ 34,437 (2010)

(contractor seeking rescission of the performance evaluation).

See, e.g., Educ. Servs., B-156860 (July 26, 1965) (request for proposals (RFP) stating that NASA would solicit

information about prospective contractors’ past performance from all available government sources and consider this

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Evaluating the “Past Performance” of Federal Contractors

procurement is one in which the contract is awarded to the vendor whose proposal represents the

“best value” for the government.64 This is not necessarily the vendor whose proposal has the

lowest price, but rather the vendor whose proposal represents the greatest overall benefit to the

government given its price, technical merit, and relationship to other evaluation criteria specified

in the request for proposals (RFP).65 Such consideration of past performance in source selection

decisions was not, however, standardized or required until the mid-1990s.66 Then, in 1993, OFPP

issued guidelines that required agencies to consider past performance information in all

negotiated procurements valued in excess of $100,000.67 This requirement was given a statutory

basis one year later, when Congress enacted FASA.68 FASA directed OFPP to promulgate

“standards for evaluating past performance with respect to cost (when appropriate), schedule,

compliance with technical or functional specifications, and other relevant performance factors

that facilitate consistent and fair evaluation by all executive agencies.”69 OFPP did so by

promulgating regulations in 1995-1997 regarding consideration of past performance information

in negotiated procurements.70 These regulations were codified in FAR Subpart 15.3 and fully took

effect in 1999.71 Subpart 15.3, as amended, currently governs use of past performance as an

evaluation factor in negotiated procurements.

Congress and the executive branch required agencies to consider past performance in source

selection decisions in the hope that the government would obtain better performance under its

contracts—and better value for its procurement dollars—by shifting the basis of its source

selection decisions. Previously, agencies conducting negotiated procurements had relied heavily

on what some commentators described as “complex technical and cost proposals,” which these

commentators asserted had “no correlation to the contractor’s ability to perform the job.”72

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information in its evaluation).

See 48 C.F.R. §15.101 (best value as the goal of negotiated procurements); 48 C.F.R. §2.101 (defining “best value”).

Defense agencies were first authorized to conduct negotiated procurements in certain circumstances in 1948. Armed

Services Procurement Act, P.L. 80-413, 62 Stat. 21 (February 19, 1948). Civilian agencies received similar

authorization in 1949. Federal Property and Administrative Services Act, P.L. 81-152, 63 Stat. 377 (June 30, 1949).

This authority was subsequently expanded when Congress enacted the Competition in Contracting Act of 1984. See

P.L. 98-369, §§2701-2753, 98 Stat. 1175 (July 18, 1984).

Previously, in 1986, Congress enacted legislation requiring defense agencies to consider “quality” in every source

selection decision in which cost/price is not the only factor considered. See Joint Resolution Making Continuing

Appropriations for the Fiscal Year 1987, and for Other Purposes, P.L. 99-591, §101 [Title IX, §924(a)-(b)], 100 Stat.

3341-153 (October 30, 1986) (codified at 10 U.S.C. §2305). “Quality” was defined as including the “prior experience

of the offeror.” Id. However, prior experience can be distinguished from past performance, and this provision was

repealed by FASA. See infra note 105; P.L. 103-355, §1013(a), 108 Stat. 3255 (October 13, 1994).

58 Federal Register 3573.

P.L. 108-355, §1091(b), 108 Stat. 3272 (October 13, 1994) (codified at 41 U.S.C. §1126).

Id.

Dep’t of Defense, Gen. Servs. Admin., & Nat’l Aeronautics & Space Admin., Part 15 Rewrite: Contracting by

Negotiation and Competitive Range Determination, 62 Federal Register 51224 (September 30, 1997); 60 Federal

The requirement was phased in, with procurements with higher values being subject to the requirement sooner than

those with lower values. See, e.g., 60 Federal Register at 16719 (procurements valued in excess of $1 million subject to

the requirement July 1, 1995; those valued in excess of $500,000, by July 1, 1997; and those valued in excess of

$100,000, by January 1, 1999).

Nathanael Causey, Past Performance Information, De facto Debarments, and Due Process: Debunking the Myth of

Pandora’s Box, 29 Pub. Cont. L.J. 637, 640 (1999/2000). See also Steven Kelman, Procurement and Public

Management: The Fear of Discretion and the Quality of Government Performance 40 (1990) (quoting a government

employee as saying “We deal with written lies,” when describing his agency’s reliance on contractors’ technical

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Evaluating the “Past Performance” of Federal Contractors

Consideration of past performance in source selection decisions was seen as an alternative to

reliance on such proposals, especially by those who characterized past performance information

as the best indicator of a contractor’s ability to provide quality goods and services at a reasonable

cost.73 Such consideration was not intended to exclude contractors with poor performance

histories from future contracts. Rather, it was anticipated that certain contractors with poor

performance histories would be able to compensate for this in other aspects of their proposals

(e.g., offering lower prices, partnering with companies with better records),74 while others would

be found nonresponsible for purposes of particular contracts or excluded from government

contracting generally through the operation of other legal authorities.75

Past Performance as an Evaluation Factor

Subpart 15.3 of the FAR currently requires agencies to consider past performance or some other

non-cost evaluation factor in all procurements, although the requirements differ somewhat

depending upon the value of the procurement:

•

With procurements valued at or below the simplified acquisition threshold

(generally $150,000), agencies must consider past performance or some other

non-cost evaluation factor (e.g., technical excellence, management capability).76

•

With procurements whose value exceeds the simplified acquisition threshold,

agencies must consider past performance unless the contracting officer

documents why past performance is not an appropriate evaluation factor for the

acquisition.77

Subpart 15.3 further requires (1) that agencies’ evaluation of past performance be in accordance

with the terms of the solicitation,78 and (2) that contractors’ performance in subcontracting with

small disadvantaged businesses be considered when evaluating their past performance.79

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proposals when making source selection decisions).

The FAR, however, views past performance information as “one indicator of an offeror’s ability to perform the

contract successfully.” See 48 C.F.R. §15.305(a)(2)(i).

See, e.g., Steven Kelman & Mathew Blum, Past Performance as an Evaluation Factor—Strengthening the

Government’s Best Value Decisions, 38 Gov't Cont. 37 (October 2, 1996) (“[The offerors] always have the opportunity

to offset a marginal performance record with an aggressive price proposal or a strong showing in other factors that are

being considered.”); Alliant Techsystems, Inc., B-260215.4, B-260215.5 (August 4, 1995) (suggesting that a contractor

that is aware of potentially adverse past performance information can explain that information or otherwise revise its

proposal). Dr. Kelman was the administrator of OFPP during the mid-1990s.

See infra notes 108 to 147 and accompanying text.

48 C.F.R. §15.304(c)(2).

48 C.F.R. §15.304(c)(3)(i) & (iii).

48 C.F.R. §15.304(d). Additionally, Subpart 15.3 requires that agency solicitations (1) provide offerors with the

opportunity to identify past or current contracts for similar efforts with any entity; (2) authorize offerors to provide

information on problems encountered with identified contracts and the offeror’s corrective actions; and (3) make clear

that an offeror without relevant past performance, or for whom information on past performance is not available, may

not be evaluated either favorably or unfavorably on this factor. 48 C.F.R. §15.305(a)(2)(ii) & (iv).

48 C.F.R. §15.305(a)(2)(v). Additionally, when the solicitation involves “bundling,” agencies’ evaluation of past

performance must assess the offeror’s performance in meeting goals in any subcontracting plans incorporated in prior

contracts. 48 C.F.R. §15.304(c)(3)(ii) & (4). “Bundling” refers to the consolidation of two or more requirements for

goods or services previously provided or performed under separate smaller contracts into a solicitation for a single

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Evaluating the “Past Performance” of Federal Contractors

Beyond these requirements, however, Subpart 15.3 generally gives agencies broad discretion in

their use of the past performance evaluation factor.80 Agencies may define what constitutes “past

performance” for purposes of the procurement, including any subfactors that comprise the past

performance evaluation factor.81 They may also determine what performances qualify as “recent”

and “relevant” for purposes of the procurement,82 as well as whose performances are considered

when past performance is evaluated (e.g., prime contractors, subcontractors, key employees).83

Additionally, agencies may determine what role the “past performance” factor plays in relation to

other evaluation factors. Agencies are required to consider cost/price and the quality of the

product or service, along with past performance, in all negotiated procurements.84 However,

depending upon their requirements, they may consider a range of other factors, such as corporate

experience, management, key personnel and staffing plan, organizational capacity, “proven plan

to achieve efficiency and cost-effectiveness,” “continuous enhancement of processes and

systems(s),” and the offeror’s small business status.85 Moreover, agencies have broad discretion in

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contract that is likely to be unsuitable for award to a small business because of its size or scope. See 15 U.S.C.

§632(o)(2). For further discussion of bundling, see CRS Report R41133, Contract “Bundling” Under the Small

Business Act: A Legal Overview, by (name redacted).

See 48 C.F.R. §15.304(c) (“The evaluation factors and significant subfactors that apply to an acquisition and their

relative importance are within the broad discretion of agency acquisition officials,” subject to certain narrow limits).

Although the factors and subfactors considered must relate to the procurement, contractors’ ability to challenge

agencies’ use of allegedly improper factors is limited by the deference that judicial and administrative tribunals give to

agencies’ selection of evaluation criteria. See, e.g., SML Innovations, Inc., B-402667.2 (October 28, 2010) (“[W]e will

not object to the use of particular evaluation criteria so long as they reasonably relate to the agency’s needs in choosing

a contractor that will best serve the government’s interests.”).

See 48 C.F.R. §15.304(d) (requiring only that the agency describe the “general approach for evaluating past

performance information” in the solicitation). See also Brican Inc., B-402602 (June 17, 2010) (evaluation of past

performance based on experience and past performance); CapRock Government Solutions, Inc.; ARTEL, Inc.; Segovia,

Inc., B-402490, B-402490.2, B-402490.3, B-402490.4, B-402490.5 (May 11, 2010) (evaluation of past performance

based on (1) conformance to contract requirements; (2) standards of workmanship; (3) schedule; (4) business relations;

(5) management of key personnel; (6) management of subcontractors; and (7) record of complying with subcontracting

goals).

See 48 C.F.R. §15.305(a)(2) (requiring that the “currency” and “relevance” of past performance information be

considered, but not prescribing what is meant by either of those terms). See also Dorado Services, B-401930.3 (June 7,

2010) (defining relevant performance as that under contracts requiring the offeror to perform refuse and recycling

services of the same or similar complexity and recent performance as that within the past five years).

Agencies are encouraged to consider past performance information regarding predecessor companies, key personnel

who have relevant experience, or subcontractors that will perform “major or critical” aspects of the work, but are not

required to do so. 48 C.F.R. §15.305(a)(2)(iv). See, e.g., Brican Inc., B-402602 (June 17, 2010) (past performance of

subcontractors considered); CapRock Government Solutions, Inc.; ARTEL, Inc.; Segovia, Inc., B-402490, B-402490.2,

B-402490.3, B-402490.4, B-402490.5 (May 11, 2010) (noting that nothing in the RFP indicated that the past

performance of the prime contractor was more important than that of the subcontractors); JSW Maintenance, Inc., B400581.5 (September 8, 2009) (past performance of key employees considered). Any such consideration must,

however, be consistent with the terms of the solicitation. See, e.g., Quality Servs. Int’l LLC, B-410156 (November 3,

2014) (finding that the agency had improperly credited the awardee with past experience it had earned through a joint

venture because the way in which such experience was credited was inconsistent with the terms of the solicitation).

48 C.F.R. §15.304(c)(1) (price/cost); 48 C.F.R. §15.304(c)(2) (quality of the product or service). Certain other

evaluation factors must be used in specific circumstances. For example, the extent of proposed subcontracting with

small businesses must be an evaluation factor for contracts that involve bundling and offer a significant opportunity for

subcontracting. 48 C.F.R. §15.304(c)(4).

See, e.g., Source Diversified, Inc., B-403437.2 (December 16, 2010) (corporate experience); Industrial Constr. &

Trading Co., B-403849 (December 13, 2010); Int’l Medical Corps, B-403688 (December 6, 2010) (key personnel and

staffing plan, organizational capacity); Delta-21 Resources, Inc., B-403586 (November 10, 2010) (“proven plan to

achieve efficiency and cost-effectiveness,” “continuous enhancement of processes and systems(s)”); Washington(continued...)

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assigning various weights to the evaluation factors.86 Past performance need not be the most

heavily weighted factor,87 and poor scoring on the past performance factor could be offset by

higher scores on other factors, particularly if little weight is given to past performance.88

Agencies also generally have broad discretion in their consideration of various sources of

information about contractors’ past performance. Much of the information used in evaluating

contractors’ past performance comes from questionnaires or customer surveys submitted by the

contractor,89 although agencies have,90 and often explicitly reserve,91 the right to consider other

information. This can include any evaluations of contractor performance that agencies were

required to prepare under Subpart 42.15 of the FAR. It should be noted, however, that Subpart

15.3 does not require agencies to consider evaluations prepared pursuant to Subpart 42.15 in

source selection decisions,92 although Subpart 42.15 does require “use” of such evaluations, and

failure to consider them could be found unreasonable under the “close at hand” doctrine.93 While

the federal courts and the Government Accountability Office (GAO) have held that contracting

officers need not consider all possible information about a contractor’s past performance when

(...continued)

Harris Group, B-401794, B-401794.2 (November 16, 2009) (offeror’s small business status).

See 48 C.F.R. §15.304(e)(1)-(3) (requiring only that the solicitation indicate whether all non-cost/non-price

evaluation factors are (1) significantly more important than cost/price; (2) approximately equal to cost/price; or (3)

significantly less important than cost/price).

See, e.g., Source Diversified, Inc., B-403437.2 (December 16, 2010) (product description and corporate experience

weighted more heavily than past performance); ITW Military GSE, B-403866.3 (December 7, 2010) (technical merit

weighted more heavily than past performance); L&N/MKB, Joint Venture, B-403032.3 (December 16, 2010) (price as

important as technical merit and past performance combined). Guidance issued by OFPP in 1995 recommended that

past performance be at least 25% of the non-cost factors, or at least equal to or more important than any other non-cost

factor. See Guide to Best Practices, supra note 14, at 16-18. Agencies were not required to abide by this guidance,

however.

It should also be noted that agencies evaluating past performance often rate it using broad descriptors (e.g.,

substantial, satisfactory, limited, and unknown). See, e.g., Dorado Services, B-401930.3 (June 7, 2010). Additionally,

vendors’ past performance is considered only in relation to that of the other vendors who submitted offers, not in the

abstract. Thus, a company whose past performance has been less than stellar, but does not result in a nonresponsibility

determination or exclusion, could be selected for award if the past performance of the other offerors was equally or