Why does GSA No-Cost Contracting Guidance for Conference Planning Services require Past Performance?

It’s simply a contract condition GSA included for ordering agencies using it.  I’m guessing it’s a way to reduce problems by less than scrupulous contractors operating under a no cost arrangement with the Government.

FAR 12.206 reads as follows

12.206 Use of past performance.

"Past performance should be an important element of every evaluation and contract award for commercial products and commercial services. Contracting officers should consider past performance data from a wide variety of sources both inside and outside the Federal Government in accordance with the policies and procedures contained in subpart  9.1, 13.106, or subpart  15.3, as applicable."

This suggests to me that requiring it should not be a surprise.

Information regarding a contractor’s actions under previous contracts and orders, also known as past performance, is an indicator of future performance and is one of the most relevant factors that a selection official should consider in awarding a contract. This page contains guidance and tools that have been developed by the General Services Administration (GSA), the Office of Federal Procurement Policy (OFPP), and others to help agencies improve their reporting and use of past performance information. https://www.fai.gov/topics/past-performance.

Neil Roberts said:

12.206 Use of past performance.

Bolstered by this definition from FAR 2.101....

"Should means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance."

If the contract doesn't obligate appropriated funds, it's not acquisition and the FAR doesn't apply.

Don Mansfield said:

If the contract doesn't obligate appropriated funds, it's not acquisition and the FAR doesn't apply.

Yes but it would seem that it is a good principle to apply any time you contract for services, free or not. But I guess it’s similar to Sola Scriptura. If it isn’t in a reg somewhere it doesn’t exist and you can’t do it.

Don, so what is the bottom line on that...is GSA prohibited from either advising that past performance should be/is required to be  included????

GSA is offering something for the optional use of other agencies.  Any agency not liking GSA's ordering guidelines can establish its own no-cost contract.

If GSA's ordering guidelines say considering past performance is required, then it is required -- and it's required because the ordering guidelines say so. 

To me, the OP's demand for a FAR citation seems inappropriate.

ji20874 said:

GSA is offering something for the optional use of other agencies.  Any agency not liking GSA's ordering guidelines can establish its own no-cost contract.

If GSA's ordering guidelines say considering past performance is required, then it is required -- and it's required because the ordering guidelines say so. 

To me, the OP's demand for a FAR citation seems inappropriate.

Agree. If you don’t like it, don’t use their contract vehicle.

Folks were citing the FAR. My point was that the FAR is not relevant to the issue.

Don Mansfield said:

If the contract doesn't obligate appropriated funds, it's not acquisition and the FAR doesn't apply.

I wonder?   Can not an acquisition made pursuant to the FAR have "consideration" whereby obligation of appropriated funds are not obligated?   Example - For the value of this marketable timber on a military base  the contractor will build a new simple pole building on the location from where the timber is being removed.   A no cost contract but something of value (property (timber) owned by the Federal government) is being exchanged for something of value (new building).

C Culham said:

Can not an acquisition made pursuant to the FAR have "consideration" whereby obligation of appropriated funds are not obligated?

Carl, what do you mean by "made pursuant to the FAR?"  The definition of "acquisition" and "contract" in FAR 2.101 both require the obligation of appropriated funds.  What you have described is a common law contract, but not a contract covered by the FAR.

Don Mansfield said:

Folks were citing the FAR. My point was that the FAR is not relevant to the issue.

ok, just a clarification_,_ the fact that "past performance" subject is in FAR does not mean an Agency can't "like it" and include it in a no cost contract, right?

C Culham said:

I wonder?   Can not an acquisition made pursuant to the FAR have "consideration" whereby obligation of appropriated funds are not obligated?   Example - For the value of this marketable timber on a military base  the contractor will build a new simple pole building on the location from where the timber is being removed.   A no cost contract but something of value (property (timber) owned by the Federal government) is being exchanged for something of value (new building).

At issue in LCPtracker was the Department of Housing and Urban Development’s (“HUD”) decision to award Elation Systems, Inc. (“Elation”) a no-cost contract for web-based payroll tracking services under a fixed-price solicitation. Elation’s competitors protested this award, in part based upon the contention that there was no consideration for the award, as Elation was offering to perform the contract for free.

in LCPtracker, Inc.; eMars, Inc., B-410752.3 et al. (Sep. 3, 2015), the U.S. Government Accountability Office (“GAO”) reaffirmed that such tactics are valid even when the contractor agrees to perform the contract for free, as the tangential benefits of a contract award can be sufficient consideration for the contract.

Neil Roberts said:

LCPtracker

See fn 5 on p. 6 of the decision.

Retreadfed said:

Carl, what do you mean by "made pursuant to the FAR?"  The definition of "acquisition" and "contract" in FAR 2.101 both require the obligation of appropriated funds.  What you have described is a common law contract, but not a contract covered by the FAR.

Retreadfed said:

See fn 5 on p. 6 of the decision.

Okay I get it not pursuant to the FAR and its narrow definitions.   But still it is a contract (common law) and if I wanted I could include FAR clauses verbatium but just drop the FAR reference.

C Culham said:

Okay I get it not pursuant to the FAR and its narrow definitions.   But still it is a contract (common law) and if I wanted I could include FAR clauses verbatium but just drop the FAR reference.

I asked Don essentially the same question.

C Culham said:

But still it is a contract (common law) and if I wanted I could include FAR clauses verbatium but just drop the FAR reference.

I don't see why not.

joel hoffman said:

Yes but it would seem that it is a good principle to apply any time you contract for services, free or not.

I said about the same thing. You don’t have to include a FAR clause to consider past performance in a no cost agreement.

C Culham said:

See fn 5 on p. 6 of the decision.

See page 6 and 7 of the decision as follows:

 Further, the agency notes that the FAR provisions that were included in the solicitation are also clauses in the contract signed by Elation... Accordingly,Elation is, in fact, bound by the very FAR provisions...

Neil Roberts said:

ok, just a clarification_,_ the fact that "past performance" subject is in FAR does not mean an Agency can't "like it" and include it in a no cost contract, right?

Right

I am the OP.  I asked GSA.  This is GSA's reply: "Thank you for your inquiry.  Although there are several important considerations listed as it relates to no cost contracting, those considerations are GSA recommendations.  Therefore, the OCO is not required to address the bulleted items." 

I take this to mean that GSA is saying that the agency ordering contracting officer who is placing a Solicitation for a No-Cost Contract for Conference Planning Services (SIN 561920) is not required to include Past Performance as an evaluation factor, even though GSA's webpage for this SIN says, "Past performance is a required evaluation criterion." 

Thank you to everyone who weighed in on this.  Your contributions are always stimulating and make me see the issue from different angles than before.

So, “there ya Ah!” 🤠