Client Advisory: Federal Agencies Should Not Use Contractor's Filing of Protests or Claims or Use of ADR in Past Performance Evaluations

On April 1, 2002, the Administrator of the Office of Federal Procurement Policy (OFPP), Angela B. Styles, issued a memorandum advising agency acquisition personnel that the filing of protests, the filing of claims and the use of ADR must not be considered by an agency in either past performance evaluations or source selection decisions. Specifically, Ms. Styles requested that agencies emphasize to their acquisition personnel, especially source selection officials (1) not to give contractors "downgraded" past performance evaluations for filing protests and claims or for deciding not to use ADR; and (2) not to give contractors more "positive" past performance evaluations for refraining from filing protests and claims or for agreeing to use ADR.

Ms. Styles notes "federal agencies should continue to work with contractors to avoid or minimize unnecessary protests and claims, and encourage the use of ADR where appropriate. At the same time, contractors should feel free to avail themselves of the rights provided to them by law." We have been concerned over the possibility that federal agencies would downgrade an offeror's past performance merely because the offeror filed a claim or protest or declined to participate in ADR. Ms. Styles' memorandum is a welcome step in the right direction.

The Air Force had recently suggested using a contractor's agreement to use or not use ADR as a factor in its past performance reporting system. Other agencies may have acted similarly. OFPP's memorandum should bring a halt to such unhelpful motion.

Guideline:

Contractors should review previous past performance "report cards" to ensure that the contracting agency is in compliance with current OFPP guidance.