• R.D. Lieberman,Consultant

Past Performance: the Experience of An Offeror's Personnel

In evaluating past performance of an offeror, the Government Accountability Office (“GAO”) has a longstanding series of decisions that generally permit the experience of an offeror’s personnel to be counted. The experience of the personnel will not be counted if the solicitation contains specific language to the contrary. A good example is Normandeau Assoc., Inc., B-417136, Feb. 6, 2019.

Normandeau involved a solicitation by the Army Corps of Engineers for fish counting and related services. The Request for Proposal simply indicated that the agency would evaluate the offeror’s experience performing “relevant Adult Fish Counting contracts.” Normandeau protested that it was improper for the agency to consider the experience of the awardee’s personnel in its evaluation—where the agency had noted that the awardee did not possess organizational experience performing fish counting, but key staff personnel of the awardee had adult fish counting experience as well as 24 hour smolt monitoring, a similar activity.

GAO denied the protest, noting that the protester had the mistaken premise that the solicitation precluded the agency from considering the experience of the awardee’s key personnel. The solicitation did not include a further limitation regarding the consideration of an offeror’s personnel or anything that established that the agency would separately consider the experience of personnel or subcontractors.

The GAO stated that “[w]here a solicitation provides for the evaluation of the experience of the “offeror,” and does not otherwise contain specific language to indicate that the agency would not consider the experience of an offeror’s proposed personnel, or separately consider such information, the general reference to the “offeror” affords the agency the discretion to consider the demonstrated experience of an offeror’s proposed personnel or subcontractors because such experience and past performance may be useful in predicting success in future contracts.”

Takeaway. Read solicitations carefully regarding past performance. If the solicitation precludes the consideration of evaluating experience of key personnel, that’s one thing. But if not precluded, then the experience of your key personnel should be considered by the agency in the evaluation.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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