How past performance can haunt a contractor, Published August 31, 2012
How past performance can haunt a contractor
Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, August 31, 2012, 1:07pm EDT
In sports, there’s the phrase, “you are only as good as your last game.” In contracting, you are only remembered for the recent, negative parts of your record.
Protesting contractor: Johnson Controls Government Systems LLC, Milwaukee, Wis.
Contracting agency: General Services Administration
Issue: Whether the agency properly considered past performance.
GAO decision, March 17, 2011 (Public decision published August 23, 2012: Denied.
Post-mortem: Johnson Controls protested the award of multiple contracts for medical treatment facilities maintenance at various Air Force sites worldwide. The company didn’t protest the award of contracts to the other awardees, only GSA’s evaluation of its past performance.
According to the request for proposals, offerors that selection would be made on a best value basis considering technical evaluation factors first and then price. The most important technical evaluation factor was past performance and “how well the firm had performed on similar contracts.” Offerors were required to identify all past performance within the past five years.
Johnson Controls submitted its past performance, including information from a past contract with the Air Force at another medical facility. Although the facts are not complete, according to the GAO decision, the Air Force claimed that Johnson Controls had failed to conduct critical maintenance, which led to the failure of three boilers. Given the opportunity to rebut those allegations, the company gave other reasons for the failure that were countered by an Air Force engineer. GSA relied on this past performance to give Johnson Controls a poor rating on its past performance subfactors and thus not award it a contract.
The company argued that the GSA should not have relied on one past performance reference and ignore all the other good references, but the GAO found that the past performance was relevant and that GSA was not required “to conduct [its] own investigation.”
Next to being able to perform the work, past performance is probably the most important factor to consider when submitting a proposal. E very single past performance evaluation has the ability to make or break their future. Not only should contractors ensure that they do everything possible to achieve positive past performance evaluations, they should fight negative evaluations through the appropriate channels.
I am sure that Johnson Controls will win future contracts, just as football star turn things around after a bad game. But it is going to take hard work and time to rebuild the damaged reputation.