How do agencies check references?

A reader asked the following question: Many solicitations require offerors to identify references in their proposals to assist agencies in the evaluation of the companies' experience or past performance. Is an agency obligated to check with all the listed references? What are the rules on reference checks?

Offerors frequently are required to identify in their proposals specific references that the government might check during evaluations of their proposals. Interestingly, however, agencies generally are not required to check with the references identified by the offerors. Indeed, in Geographic Resource Solutions (B-260402, June 19, 1995, 95-1 C.D. 278 at 4-5), the General Accounting Office stated, "While the evaluation scheme envisioned that references may be contacted, we are aware of no requirement that the evaluators must do so. An agency may accept a firm's representations of its experience unless there is reason to believe that the representations are inaccurate.... Here, there is nothing in the A-E submittals which suggested to the evaluators that the firms' representations were false, and we fail to see how [the protester] was prejudiced by the agency's equal treatment of the competing firms when the evaluators decided not to contact any references."

GAO reached the same conclusion when a solicitation stated that the government "would inquire" into the offerors' past performance by contacting references (Seair Transport Services Inc.,

B-252266, June 14, 1993, 93-1 C.D. 458).

In addition, an agency may decide to check some of the references but not all. In Neal R. Gross & Co. (B-275066, Jan. 17, 1997, 97-1 C.D. 30), GAO found it reasonable for a contracting officer to rely on one reference identified by both offerors, and the reference provided a positive review of one and a negative review of the other. Also, the contracting officer had no reason to believe that checking the other references would have changed the result. Similarly, in Employment Perspectives (B-218338, June 24, 1985, 85-1 C.D. 715), the agency checked with only one of the four references identified in the protester's proposal. Although that reference informed the agency that she did not recall the contract in question, GAO found that the agency had no obligation to investigate further or to check with the other references.

Agencies also have considerable discretion in how they conduct reference checks. According to GAO, "There is no duty imposed upon an agency to ask questions of references in a particular manner" (Dual Inc., B-299295, June 1, 1998).

Even when an agency receives reference checks that are less than satisfactory, the agency is not obligated to seek additional information. (See Basic Technology Inc., B-214489, July 13, 1984, 84-2 C.D.

45.) Agencies are not obligated "to seek out individuals who were not listed in the relevant offeror's proposal but were mentioned by the references contacted" (Dual Inc., supra).

By contrast, according to GAO, "some information is simply too close at hand to require offerors to shoulder the inequities that spring from an agency's failure to obtain and consider the information" (International Business Systems Inc., B-275554, March 3, 1997, 97-1 C.D. 114). Therefore, GAO sustained the protest because the agency did not credit the protester's exemplary performance on a prior contract with the same agency simply because an individual failed to complete and return the past-performance evaluation materials.

In general, a contracting officer may rely on personal knowledge in place of a reference check where reasonable. In U.S. Technology Corp. (B-278584, Feb. 17, 1998), the GAO ruled that a contracting officer was not required to check with a reference on a contract with which he already was familiar.

Until the recent revision to the rules on conducting negotiated procurements, the Federal Acquisition Regulation required contracting officers to include in discussions with the offerors an opportunity to comment on any negative references on which the offeror had not previously had an opportunity to comment. GAO has taken this requirement very seriously. (See, for example, Aerospace Design & Fabrication Inc., B-278896.2, May 4, 1998, in which sustaining a protest because the protester was only a subcontractor on the earlier contract and, as such, had no prior opportunity to comment on negative remarks related to that contract.)

In the revised FAR 15.306, an intermediate form of communications was introduced that falls somewhere between the classic definitions of "discussions" and "clarifications." According to the new regulations, these "limited exchanges" may include the opportunity to comment on adverse references.

As noted above, such comments traditionally have been considered discussions. According to the new FAR 15.306, these communications may be held without opening discussions. It is highly questionable whether the new regulation is compliant with the statutes authorizing contract awards on initial proposals. Regardless, the new regulation retains a statement that agencies must give offerors some type of opportunity to comment on adverse references.

Peckinpaugh is a member of the government contracts section of the law firm Winston & Strawn, Washington, D.C. This column addresses legal topics that arise in government acquisition and management of ADP resources. Readers are encouraged to submit topics by e-mail to carl@carl.com. This column discusses legal topics of general interest only and is not intended to provide legal advice. Should you have a specific question or legal problem, consult an attorney.