Sometimes government agencies make mistakes in assessing proposed contractors’ past performance.  When an agency ignores negative past performance information about a potential contractor, its award decision can be found to be unreasonable.  That is what happened in a recent procurement by DOD for commissary deli and bakery resale operations.

In Northeast Military Sales, Inc., B-404153, Jan.13, 2011, GAO considered a protest that challenged DOD’s consideration of past performance information.  As part of the past performance factor, DOD was required to evaluate “quality history/overall customer satisfaction….”  DOD rated the awardee’s past performance as exceptional.  Instead of being exceptional, the GAO Decision described the awardee’s past performance as follows:

“Specifically, the evaluation team was provided with e-mails from various commissaries which reported staff and product shortages during transition periods; unsanitary conditions; employee tardiness and cleanliness; and problems with sushi, including use of expired products and pre-dating products.  See, e.g., id. at 147-48 (June 25 e-mail reporting “serious problems” with sushi at Memphis commissary which “nee[d] to be addressed immediately”); 145-46 (July 15 e-mails reporting an “ongoing problem” and that “there arestill significant issues” with sushi at Memphis commissary); 154 (July 18 e-mail reporting problems “once again” with sushi at Scott AFB).”  (The emphasis in bold was not in the GAO Decision, buy hey, we wanted to make a point).

GAO ultimately sustained the protest and held that DOD was wrong to ignore the adverse past performance information.  And GAO recommended that the agency make a new source selection determination.

There are at least two take aways from the decision.  First, agencies cannot ignore negative past performance information in their possession.  Second, think twice before buying the sushi at DOD commissaries.