When we are hired to help a contractor prepare to submit a bid or proposal, two of the first things we usually want to know are: (1) Has the contractor recently done any previous, similar work for the agency it will be submitting an offer to?; and (2) How well does the client think the agency rates its performance? The reason is because if the agency thinks that contractor did a good job, that past contract should be included as a past performance references in the bid or proposal.
But, we have noticed an odd trend amongst contractors bidding for state and local contracts in Florida. Contractors do not usually list the agency that is conducting the competition as one of their references. When we ask why, the answer is usually “I didn’t think I could.” We have also heard numerous local government employees say they think listing the bidding agency as a reference is improper since it provides some sort of “unfair” advantage.
To us, not being able to consider the past performance with the contracting agency is nonsensical. Unless the government entity’s bidding rules or the terms of a solicitation prohibit a contractor from listing that entity as a reference, it is reasonable for a contractor to do so.
Past performance is usually a scored evaluation factor in government solicitations like requests for proposals (RFP) or invitations to negotiate (ITN). Past performance factors generally require offerors to submit references that the agencies assess and score in regards to recency and relevancy (similarity in terms of size, scope, and complexity). The agencies will also try to contact the reference’s point of contact so that it can assess performance quality. Such references are also used for invitations to bid (ITBs) so the agency can evaluate bidder responsibility.
The purpose of a past performance evaluation is to assess the degree of confidence the agency has in an offeror’s ability to perform the solicitation requirements based on its “track record.” While second-hand knowledge of a contractor’s performance (e.g., an outside reference) can be useful to making such an assessment, first-hand knowledge is obviously going to be much more useful.
When an agency evaluates an incumbent contract, it does not have to guess how similar it is. More importantly, the evaluators are relying on their direct knowledge of how good a job that contractor has actually done for that agency. Of course, this is the best possible indicator of how well it will probably provide those goods or services for that agency in the future. As important, if a contractor has done a poor job for an agency on the incumbent contract, then government evaluators should consider such in addition to references from other customers. Conversely, if an incumbent contractor is doing outstanding work for an agency, then the government evaluator should be able to consider such information and weigh it against potentially poor performance for another entity. Of course, all such evaluations must be considered within the context of recency and relevancy, and a follow-on contract with significantly different requirements than the incumbent contract are less relevant.
Moreover, there is nothing “unfair” about an incumbent listing the procuring agency as a reference. Contractors with good references always have a competitive advantage over contractors who do not, and not every advantage is an “unfair” one.
Some people may think incumbent references are “unfair” because some of the evaluators may be overseeing the referenced contract, and this could theoretically cause an evaluator to be “biased” for or against that firm. But so what? Evaluators are expected to rely on their professional experience during scoring, and that experience may include overseeing the current contract. Additionally, government personnel are presumed to act lawfully and in good faith, and this presumption must by overcome by proof to the contrary. The fact an evaluator has overseen one of the bidder’s contracts and may have formed an opinion does nothing to rebut the presumption of good faith.
Additionally, some people may think using an incumbent reference is “unfair” because (usually) only one bidder will be an incumbent. Again, so what? The incumbent fairly won its contract, and it should be able to list its references the same as its competitors, who will no doubt have references the incumbent cannot list. Agencies can reduce such incumbent bias by awarding points to contractors who have had less past work for an agency.
In sum, a contractor doing a good job for an agency should list its incumbent contract as a reference for similar work, unless the applicable bidding rules or solicitation clearly prohibit it. Additionally, contractors should always make sure they do not violate relevant “cone of silence” restrictions when they ask their customers to fill out reference forms.
