Close at Hand: Must an Agency Seek Out Past Performance Information on its Own?

Businesses pursuing federal contracts regularly are required to identify past contract experience they have had so that the Government can evaluate the prospective contractor’s past performance on similar contracts. For example, an offeror may be asked to identify three current or past contracts and to supply contact information so that the contracting.

However, the Government doesn’t usually limit its past performance evaluation to the past performance identified by the contractor. Rather, an agency will reserve the right to look at other information and will say so in the solicitation. What happens if there’s information readily available to a contracting officer that he or she doesn’t review?

That’s one of the questions that was posed in a recent bid protest before the Government Accountability Office (“GAO”). See Sysco Central Texas, Inc., B-422356 (May 8, 2024). The protestor, Sysco Central Texas, Inc. (“Sysco”), was on the losing end of a years-long procurement process for a Defense Logistics Agency (“DLA”) contract “to supply subsistence products, including food and beverage items” for various federal customers in Central Texas. Sysco asserted that the award decision was flawed because the source selection team failed to evaluate its competitor’s performance of a DLA contract that the competitor was performing in the San Antonio, Texas area. One of Sysco’s arguments was that the competitor’s performance information was so “close at hand” that the agency was required to review it. Presumably, Sysco believed that its competitor’s performance wasn’t very good and would have lowered the agency’s evaluation of the competitor.

I’ve encountered this situation before; however, the situation differed from Sysco’s case insofar as I was arguing that my client’s positive performance information on a similar contract wasn’t considered. What was particularly bothersome was the fact that the contracting officer administering the procurement was also overseeing the other contract. Indeed, my client chose not to include that contract for reference purposes since the contracting officer was well aware of its past performance. However, my client lost the award because its very good past performance didn’t match its competitor’s excellent past performance. If only the contracting officer had allowed himself to consider the contract performance, he was most familiar with, he would have given an excellent rating.

This is where the “close at hand” principle comes in. The doctrine creates an exception to the ordinary rule that offerors bear the responsibility of submitting compliant proposals—i.e., proposals that supply all the information that the Government seeks—in particular, past performance. International Bus. Sys., Inc., B–275554, Mar. 3, 1997, 97–1 CPD ¶114, 1997 WL 113958, *4. If applicable, these cases hold that agencies bear the obligation, not just the discretion, to consider past performance information that is not included in an offeror’s proposal if the “information is simply too close at hand to require offerors to shoulder the inequities that spring from an agency’s failure to obtain, and consider, the information.” Id.

In the International Business Systems case, the protesting offeror identified “a recent contract involving the same agency, the same services, and the same contracting officer, and asked that [the agency consider] its performance of this contract . . . as part of its evaluation, as the solicitation anticipated and required.” Id. However, the agency did not take the offeror’s “exemplary” performance on that contract into account and rated past performance as merely good “simply because an individual in the agency did not complete” an assessment form regarding the offeror’s past performance. Because the agency did not take the “close at hand” information into account, the GAO held the offeror was prejudiced by the agency’s failure to consider the other contract because the agency could have reached a different conclusion when making its best value tradeoff. Id. at *4-5.

In a subsequent case, the GAO reached a similar conclusion where close at hand past performance data was not considered because the offeror failed to submit a “Contractor Past Performance Data Sheet.” Because the data sheet had not been submitted, the agency did not send out a past performance survey seeking information regarding the offeror’s performance. GTS Duratek, Inc., B–280511.2, B–280511.3, Oct. 19, 1998, 98–2 CPD ¶130 at 14. Despite the offeror’s misstep, the GAO stated that the “agency could not reasonably ignore personally known information about [the] offeror’s prior experience . . .merely because the firm did not submit” the data sheet. Id.  The GAO rested its conclusion on two facts: (1) the contract at issue was so similar that it served as the basis for the government estimate for the work; and (2) the contracting officer's technical representative for the contract was a member of the technical evaluation team for the subject solicitation and personally was aware of the offeror’s past performance. Id.

Sysco’s situation was quite different. Although the competitor’s project was in the same area and also was administered by DLA, it was overseen by a different team and the Government didn’t rely on anything from the other contract that would have affected the evaluation. Moreover, the competitor’s work on the other contract didn’t even begin until after the submission of the offerors’ final proposal revisions. While the agency certainly would have been within its rights to consider the other contract performance, it had no obligation to do so. Accordingly, the GAO denied the protest on this ground.

When I look at these cases in context, it seems to me that, GAO will not reject the award of a contract unless the past performance information was so “close at hand” that it was also under their nose and couldn’t be ignored. It also matters that Sysco was arguing that the information should have been used to downgrade its competitor. Would the case have come out differently if Sysco were, instead arguing that it’s information shouldn’t have been ignored? Perhaps.

So, what’s the lesson here? Like so many other things in government contracting, one should never leave anything to chance. When it comes to past performance, review the solicitation’s instructions to offerors and the evaluation factors to ascertain what must be submitted and what will be reviewed. And if there are any ambiguities, be sure to submit questions or request clarifications.