GAO’s VMSI Decision Shows Agencies Must Follow Their Own Past Performance Rules
GAO’s decision in Veterans Management Services, Inc. is a useful reminder that agencies have discretion in past-performance evaluations, but that discretion is bounded by the solicitation. The protest involved a Department of Veterans Affairs procurement for acquisition support services. Veterans Management Services, Inc., an SDVOSB, challenged the award to another SDVOSB, arguing that VA had evaluated past performance in a manner inconsistent with the solicitation. GAO sustained the protest in part.
The critical issue was recency. The RFQ stated that recent experience within the past three years “may be viewed more favorably” than performance older than three years. That language allowed the agency to prefer more recent past performance. It did not state that older past performance would be excluded from consideration altogether. Yet VA effectively filtered out CPARS information for contracts more than three years old and did not evaluate those records for relevance or quality. GAO found that approach inconsistent with the solicitation.
The distinction matters. Agencies may establish recency cutoffs if they write them into the solicitation. They may also assign greater weight to recent performance if the solicitation says so. What they may not do is convert permissive evaluation language into an unstated exclusion rule after quotations are submitted. In VMSI, the difference was material because past performance and price were approximately equal in importance, and the protester argued that its older CPARS records could have improved its competitive standing.
For contractors, the decision reinforces the importance of comparing the evaluation record to the actual words of the solicitation. It is not enough to ask whether the agency’s evaluation seems plausible. Contractors should ask whether the agency applied the evaluation criteria it announced. Did the solicitation create a hard cutoff or a preference? Did it require three references or allow other sources? Did it permit CPARS review beyond submitted references? Did the agency apply the same rule to all offerors? Did the source selection document introduce definitions that were not in the RFQ?
This case is also a reminder that debriefing review should be textual. Contractors often focus on ratings and price differences. Those matter, but the protest question frequently turns on whether the agency followed the evaluation scheme. A small word such as “may” can become significant if the agency treats it as “must” or “only.”
The broader procurement takeaway is direct. Agencies must follow their own past-performance rules. Contractors should preserve protest rights by reading solicitation language carefully before submission and reviewing award records against that language after award.
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Use the Section L/M Compliance Crosswalk to map past-performance instructions, evaluation criteria, recency rules, CPARS language, required references, and proposal-response locations. VMSI shows why contractors need to know exactly what the solicitation says before they write, submit, or protest.
Disclaimer
This post is for informational purposes only and does not constitute legal advice. Past-performance evaluations, CPARS use, debriefing strategy, and bid protest viability depend on specific solicitation language and procurement facts. Contractors should consult qualified counsel before making legal, proposal, or protest decisions.