The Evaluation / Responsibility Boundary

Past performance in an evaluation asks how well a firm has performed and how much confidence that gives you about this job. Responsibility asks whether the firm can perform at all. Both questions read the same record, which is why the labels get tangled, but they lead to different procedures, and the procedure is what a protest turns on.

The clean way to tell them apart is to look at the firm that did not get the award and ask why. In a competitive buy there are only three possible answers, and each one puts you in a different procedure with a different next step. The table lays them out. The second row is the one this page is about.

SBA's regulation is written around that second row. 13 CFR 125.5(a)(2) requires a Certificate of Competency referral in three situations: the contracting officer denies an apparent successful small business the award on the basis of responsibility; the contracting officer refuses to consider a small business after a non-comparative (pass/fail) evaluation on a responsibility-type factor, and the regulation names experience of the company, experience of key personnel, and past performance as examples; or the contracting officer refuses to consider it because it failed a definitive responsibility criterion in the solicitation.

The FAR Overhaul text lands in the same place from the other side. RFO 15.104(b)(3)(i) says the past performance evaluation "is separate from the responsibility determination required under part 9," and 15.202(c)(4) says that under LPTA, when a small business that would have been in contention is rated unacceptable on past performance, "the matter must be referred to the SBA for a Certificate of Competency determination."

The flip side matters just as much. Docusort also confirms that an agency may use traditional responsibility factors, including experience and past performance, as evaluation factors when it compares offerors on them. The comparison is what keeps the decision on the evaluation side of the line. A pass/fail cutoff inside a document titled "comparative evaluation" is still a cutoff.

All three are legitimate. They answer different questions and they carry different obligations, so pick the one that matches what you actually want out of the buy. The Build It tab writes solicitation language for whichever one you choose.

For the question that opened this page, route B is the right answer. The CO wanted past performance to matter and wanted the decision to stay simple. Comparative past performance under a simplified RFQ does both. Under RFO 12.203(c)(2) you have broad discretion in how quotations are evaluated, a comparative evaluation is expressly allowed, and nothing in Part 15 applies. No scoring sheets, no competitive range, no confidence-rating scale unless you want one.

Route A is not wrong. It is the right call when you can describe the minimum cleanly and would get nothing from a record that exceeds it. It just comes with the referral, and if the reason you wanted LPTA was to keep SBA out of the process, it does the opposite. Route C is the right call when there is a real capability floor the work cannot do without. Two firms with two very different records both clear it, and price decides.

A comparative evaluation lives or dies on one paragraph in the file: the one that says what the performance difference was and whether it was worth the price difference. Everything else in the past performance write-up exists to support that paragraph.

Keep the information request useful

Define recent with a period and the date it runs from. Define relevant by the things about this work that predict success: scope, scale, the operating conditions, the schedule pressure. Ask for projects, dates, what the firm actually did, a contact who will answer the phone, and any problems and what was done about them. Say whose record counts (the firm, key people, a major subcontractor) and that you may use CPARS and any other source. A commercial customer's reference is evidence; RFO 12.203(a)(2) tells you to consider past performance information from a wide variety of sources inside and outside the Government.

Keep the solicitation simple, and say the basis for award

RFO 12.203(b) requires telling quoters the basis on which you will make the award decision. For a simplified buy that can be three sentences in the RFQ. 52.212-2 is required when you are using Part 15 procedures for a commercial buy and optional for a simplified one (RFO 12.205(a)(2)); if you use it, tailor it, and know that its fill-in asks you to list the factors in relative order of importance. "You never have to state importance under SAP" holds right up until someone reads the provision you attached. Say what matters and in what order. It costs one sentence.

That is the whole evaluation method. Pair it with a short instruction telling quoters what to submit and the definitions of recent and relevant, and you have a solicitation that lets you use the record without turning it into a gate.

Routes A and C both put a small business's rejection in front of SBA. The mechanics are in FAR 19.204 and are covered end to end in the Certificate of Competency section of Contractor Responsibility. The short version for this page:

• Withhold award and sign a determination stating the grounds (FAR 9.105-2(a)(1), 19.204(d)). "Failed the past performance standard in paragraph X of the RFQ" is a ground; say what the record showed.
• Refer to the SBA Area Office serving the firm's headquarters, through your small business specialist, with the package SBA's regulation lists at 13 CFR 125.5(c) (19.204(e)).
• Wait 15 business days from the day the Area Office has the complete package (19.204(f)). SBA may look at every element of responsibility, not just the one you cited.
• If SBA issues the Certificate of Competency, award. It is final on responsibility and you cannot add another responsibility hurdle (19.204(i)). If SBA declines or does not act in time, document it and move to the next quoter (19.204(j)).

Two points, one on each side of the line. First, the referral applies on an unrestricted buy too, not only set-asides, and it applies even when the next quoter in line is also small (19.204(b)). Second, a small business that loses a genuine comparison under route B has not been found nonresponsible, so there is nothing to refer. That protection only holds if the comparison is real. If your "comparative" evaluation has a floor in it that a firm cannot get past, the floor is the decision and the referral applies.

Same boundary, different trade. A firm whose SAM profile says office equipment sends in the low quote on a roofing repair. The temptation is to go looking for a reason it cannot win. Name the concern first, then use the tool that fits it.

Construction solicitations often put the experience requirement on a person instead of the firm: "the superintendent must have ten years on projects of similar size and scope," listed under a technical factor called key personnel. That does not move it out of responsibility. SBA's Certificate of Competency regulation, the same 13 CFR 125.5(a)(2)(ii) from Section 1, names the experience of key personnel right alongside the experience of the company. A pass/fail years requirement on the superintendent is a gate on the firm that proposed him, and the small business whose superintendent has nine years gets referred to SBA, not rejected.

A lot of the real risk on a construction job gets handled by tools that have nothing to do with the evaluation. Performance and payment bonds, or the alternative payment protections, under FAR 28.102 at the current thresholds. Licenses and permits addressed in the contract; 52.236-7 puts that obligation on the contractor during performance, so if you need a license in hand before award, the solicitation has to say so.

And if a fact is still unresolved when you are ready to award, ask for it: who will supervise, what equipment they have access to, how the work is financed. The FAR Overhaul reserved 9.106, so a preaward survey is a tool rather than a required step, but nothing stops you from picking up the phone. That inquiry is responsibility, and for a small business the answer to it lands in Section 4.

Three pieces of the solicitation have to agree: the instructions (what to submit), the evaluation factor (how you will use it), and the basis for award (how price and everything else produce a winner). Most boundary problems are one of those three quietly contradicting another.

"Provide three recent, relevant projects" is an instruction. It becomes a minimum the moment someone with two projects gets rated unacceptable for it, and if the basis for award promised neutral treatment for no record, the file now contradicts itself. Decide which one you mean. A request for examples and a minimum-experience requirement do different jobs, and only one of them belongs in a route B solicitation.

No relevant history is also not the same thing as failing to submit what the RFQ required. A quoter that ignored the instruction to provide project information has a submission problem; a quoter that answered "we have no relevant federal or commercial record" has a neutral rating. Read what was asked, what came back, and write down the actual reason before anyone labels it.