This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its January 2013 decision in the matter of Mission Essential Personnel, LLC, the U.S. Government Accountability Office (GAO) found that the Department of the Army improperly evaluated the complainant’s bid by failing to communicate past performance concerns during the evaluation process to enable the complainant’s response to those issues. The case dealt with a Request for Proposals (RFP) for intelligence analyst services. The complainant’s proposal received a “No Go” assessment due to alleged past performance issues involving personnel turnover and invoicing delays. The complainant challenged this assessment, maintaining that the contract performance problems in question were caused by the Department and that the Department had failed to properly raise its concerns over the alleged past performance issues during the performance of the prior contract or during the subsequent evaluation process:
MEP maintains that the agency unreasonably assigned weaknesses to its proposals for having turnover in its program manager position, and for delaying the submission of its invoices. According to the protester, these problems were the result of agency actions rather than its own deficient performance. For example, the protester maintains that the only reason there was turnover with its program manager was because the agency hired its original program manager and, thus, MEP had to engage in various interim and remedial actions to put another permanent hire in place. MEP also maintains that its delays in submitting invoices were caused by the inconsistent directions of the Army’s contracting officers concerning how the invoices should be prepared. The protester also argues that, to the extent the agency had concerns in these two areas, the agency never discussed these concerns with the protester.
The GAO sustained the complainants protest on these grounds, finding that the Department’s failure to raise the concerns and provide the complainant an opportunity to respond undermined the validity of the Department’s assessment.
As this case illustrates, when past performance issues are relied upon in subsequent bid evaluation processes, public institutions should ensure that those issues have been properly documented and communicated to the supplier since the failure to do so can undermine the validity of an evaluation that relies on past performance.
