The “too close at hand” principle allows GAO or the court to find an evaluation unreasonable where an agency fails to consider past performance information it was aware of – even if that information was not in the offeror’s proposal. The principle originates from GAO’s 1997 decision in International Business Systems, Inc., where GAO sustained a protest after finding that an agency unreasonably failed to consider past performance information that “involved the same agency, the same contracting officer, and virtually the same services” as the procurement at issue. GAO held that “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.” Since that decision, the argument has become a common tool in protesters’ challenges to past performance evaluations, though as discussed in “Bid Protest Pitfalls: Three Commonly Misused Arguments at GAO,” the argument is frequently misused by protesters unfamiliar with GAO’s precedent on the issue.
By 2000, the Court of Federal Claims (COFC) had also begun considering the too close at hand doctrine. For example, in Seattle Sec. Servs., Inc. v. United States, 45 Fed. Cl. 560 (2000), Judge Allegra concluded that an agency’s past performance evaluation was arbitrary and capricious because the agency failed to consider close at hand information regarding the performance of the incumbent contract.
Yet, while the principle originated at GAO, it appears to have gone out of favor there: the last GAO decision sustaining a protest based on the “too close at hand” principle was over a decade ago, in June 2015. In DKW Communications, Inc., GAO sustained a past performance challenge finding that the agency unreasonably failed to consider information in a recent Contractor Performance Assessment Reporting System (CPARS) report that was completed by the same individual who served as the technical evaluation chair. (In 2017, GAO issued another sustain decision mentioning the too close at hand principle, but the sustain was based upon disparate treatment in the consideration of “close at hand” information, rather than the unreasonableness of failing to consider such information).
Yet, while the doctrine has found little success at GAO in the past decade, a recent COFC decision indicates that the close at hand principle is still alive and well at the court. In Chugach Logistics & Facility Services JV, LLC v. USA, the Navy sought to award a Base Operations Support Contract (BOSC) in which custodial services constituted nearly half of the total contract value. The awardee, CCS King George 2, LLC (CCS KG), was an 8(a) mentor-protégé joint venture whose mentor member, King & George, had received a marginal quality rating in a CPARS evaluation on a predecessor custodial services contract performed at the very same naval base. The Navy assigned CCS KG the highest possible Past Performance rating of “substantial confidence” without any mention of King & George’s adverse CPARS. Notably, the agency official who had signed the marginal CPARS was one of three evaluators on the source selection evaluation board for the BOSC procurement. Thus, the adverse performance information was not merely accessible, but personally known to the evaluation team. As Judge Bonilla described it, the negative performance information “was not just close at hand—it was squarely in the Navy’s palm.”
In sustaining the protest, the Court discussed four elements of a “too close at hand” argument, instructing that “[a] procuring agency errs under the too close at hand doctrine when: (1) the agency failed to consider information that it had discretion to consider, (2) the information was sufficiently relevant to the procurement, (3) the information was close at hand, and (4) the Court cannot discern from the record a contemporaneous rational basis for the agency’s failure to consider the information.” In Chugach, the Court found all four elements satisfied. The solicitation’s past performance factor expressly authorized review of “all CPARS evaluations” beyond those submitted by the offeror, establishing the agency’s discretion. The prior contract involved substantially the same custodial work at the same installation, establishing relevance. The evaluator’s personal knowledge of the marginal rating placed the information squarely within the meaning of “close at hand.” And the evaluation record was devoid of any contemporaneous explanation for the omission.
Notably, the Court rejected the government’s argument that the predecessor janitorial contract fell outside the solicitation’s definition of “relevant project” under the Corporate Experience factor (a defense that GAO accepted when the award was first protested there, as we discussed in this client alert). The Court held that the Past Performance factor’s broad authorization to review “all CPARS evaluations” was not constrained by the narrower relevancy definition from a separate evaluation factor.
The Court’s Chugach decision provides an important reminder that, even as the too close at hand doctrine has apparently fallen into disuse at GAO, it remains an effective tool in COFC protests. Negative past performance information known to agency evaluators cannot simply be ignored where that information is relevant to the procurement at issue. Moreover, contractors cannot prevent an agency’s consideration of such information merely by failing to mention the contract in their proposals.