Some years ago, I was at a networking event hosted by my law school. While strategically lingering near the snack table–you know, networking–I struck up a conversation with a career counselor about the networking process. After I mentioned that I needed to leave to keep working on a looming assignment, the career counselor retorted “Ian, it’s not what you know; it’s who you know.”
At that point, the only people I’d networked with were the venue staff and I had only managed to improve my snack capture rate. I shrugged off the idea as another outdated platitude and made a move for more loaded potato skins before leaving to finish my assignment.
In hindsight, the career counselor had a point. Who you know matters. Case in point is federal contracting. The overwhelming majority of federal solicitations require contractors to submit past performance references. But are past performance references legally required? According to GAO, no.
Proving me right is GAO’s decision in Pathfinder Consultants, LLC, B-419509 (Mar. 15, 2021). The case involved a VA solicitation for communication strategies and support services. Interestingly, the evaluation procedures did not require bidders to supply any past performance references with this proposal.
Pathfinder Consultants, LLC was perplexed by the lack of a past performance requirement. Convinced that the solicitation should provide some consideration for experience, Pathfinder protested the omission of a past performance evaluation factor.
In response, the VA provided documentation it prepared justifying its decision. According to the VA, the communication strategy services it was procuring were not especially complex or difficult, so limiting the evaluation to technical approaches would be sufficient. There was little value in obtaining past performance information. As GAO summarized, “the VA explained that reviewing past performance information for communications services that are generally performed favorably was unnecessary and would not yield significant data for evaluative purposes.” Accordingly, the VA omitted the past performance evaluation criteria.
GAO concluded the decision was reasonable. GAO explained that agencies generally have broad discretion when developing solicitations. More specifically, FAR 15.304(c)(3)(iii) expressly allows contracting officers to omit past performance as an evaluation factor, provided “the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition.” Since the VA documented the specific reasons for its decision, the omission of the past performance factor was acceptable. Pathfinder’s protest was denied.
The decision in Pathfinder highlights the broad discretion agencies have when developing a proposal evaluation scheme. While past performance evaluations are ubiquitous in federal contracting, these are not always required. All that is required to omit past performance is an explanation from the contracting officer why it’s not necessary.
More importantly to this author, Pathfinder also highlights that, sometimes, what you know does matter more than who you know. And while I can remember precisely nothing about that assignment from all those years ago, I still remember where to get good loaded potato skins.