Past Performance Consideration—At the Discretion of the Contracting Officer to Require It and An Objection to Not Including it is Waived if not Timely Raised—Prior to Close of Bids

A reminder that consideration of past performance is at the discretion of the contracting officer. If a party believes that the contracting officer should consider past performance and that such consideration is not stated in the solicitation—that objection must be made prior to the close of bidding—not in a bid protest to stop the award. Thales USA, Inc. v. United States, COFC No. 24-1187—Excerpts from the Redacted Case https://www.govinfo.gov/content/pkg/USCOURTS-cofc-1_24-cv-01187/pdf/USCOURTS-cofc-1_24-cv-01187-0.pdf

A firm protested an Air Force award based on three primary grounds: the Air Force (1) improperly evaluated the offerors’ proposals and treated the offerors unequally; (2) used a flawed price evaluation and conducted unequal discussions; (3) conducted an improper best value tradeoff; and (4) issued an improper source selection decision. This analysis will briefly focus on the past performance aspect of the protest.

  The protestor’s first basis focuses on the awardee’s lack of experience or past performance. Under the Federal Acquisition Regulations (“FAR”) “[p]ast performance need not be evaluated if the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition.” FAR 15.304(c)(3)(iii). In this case, the Air Force drafted a Determination and Findings (“D&F”) explaining why it determined that past performance evaluations were inappropriate for this procurement.

  Additionally, past performance or experience “was not a stated evaluation criterion, or reasonably encompassed within the stated criteria.” From the plain language of the Solicitation, it is clear that past performance would not be incorporated into the analysis under any of the factors of this Solicitation. This information was readily apparent to bidders; yet there were no objections. “[A] party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in” our Court. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). Thus, whether there was any merit to the protestor’s claim regarding the Air Force’s measure of the bidder’s past performance, that objection is waived—not raised in time.