GAO Reminds Agencies that “Less Favorable” Doesn’t Mean “Ignored:” A Past Performance Lesson from a Recent VA Protest

If your company is one of the many that relies on CPARS reports and past performance ratings to win federal work, a recent GAO decision is worth five minutes of your time. It doesn’t involve a dramatic scandal or an agency acting in bad faith. It’s something certainly more common and arguably more useful: an agency that set up a reasonable-sounding evaluation shortcut that didn’t actually match what the solicitation said it would do. 

The case: Veterans Management Services, Inc., B-424182.2, B-424182.3 (June 22, 2026). GAO sustained the protest in part and denied it in part. 

Background 

The United States Department of Veterans Affairs issued a request for quotations for acquisition support services. The award was to be based on a best-value tradeoff between two factors: price and past performance, weighted roughly equal in terms of importance. Vendors were required to submit three past performance references, and the solicitation informed vendors that the agency would also pull data from CPARS — the government’s Contractor Performance Assessment Reporting System. 

On past performance, the solicitation included one sentence that turned out to matter a great deal: 

“Recent experience within the past three (3) years may be viewed more favorably than performance older than three (3) years.” 

That’s a common phrase in solicitations. It signals a preference for recent work. But it does not, on its face, say that older work will be excluded from the evaluation altogether. 

What the Agency Actually Did 

When the contracting officer evaluated vendors, she pulled each vendor’s CPARS history and sorted the entries into two buckets: contracts finished within the last three years, and contracts finished more than three years ago. For the “older than three years” bucket, she stopped there. Those records weren’t assessed for relevance, quality, or anything else. Only the “more favorable” (recent) bucket got the full relevancy and quality review contemplated by the solicitation. 

In other words, a rule that was written as a weighting preference (“may be viewed more favorably”) was applied as a screening rule (records outside the window aren’t reviewed at all). 

Why GAO Sustained the Protest 

GAO’s evaluation of past performance judgments is generally deferential: agencies have real discretion in how they weigh relevance, recency, and confidence. But that discretion has to operate within the four corners of what the solicitation actually promised. 

Here, the solicitation’s own language — that older experience “may be viewed more favorably” — only makes sense if older experience was still being considered, just weighted differently. If the agency’s applied approach had been correct, that sentence would do nothing at all (that is, it would have been rendered superfluous). GAO doesn’t read solicitation language as filler; every part is presumed to have a purpose. Because the agency’s practice made that sentence meaningless, GAO found the evaluation inconsistent with the terms of the solicitation. 

GAO also found that the error mattered. The protester’s price was about $565,000 higher than the awardee’s, but past performance was equal in importance to price. The protester argued that some of its excluded older contracts had exceptional ratings that could have closed the gap in a best-value tradeoff analysis. GAO agreed there was a reasonable possibility that the outcome could have changed, and that’s the standard for showing prejudice: you don’t have to prove you would have won the contract award, just that you had a real shot – in other words, a “substantial likelihood.” 

The Second Issue, and Why It Came Out Differently 

The protester also argued that the awardee’s price/cost schedule didn’t match an amended period of performance date, and that this should have made the awardee’s quote unacceptable. GAO agreed the awardee’s schedule was technically out of step with the amendment but denied this part of the protest, because the protester never explained how it would have priced or structured its own quote any differently had it known the agency would tolerate that discrepancy. A protest ground can be technically correct and still fail if you can’t connect it to actual competitive harm. 

What This Means for Your Company 

A few practical takeaways, whether you’re preparing quotes or reviewing an award decision: 

1. Read recency and relevancy language literally, not intuitively. If a solicitation says older experience “may be viewed less favorably,” that’s a weighting instruction, not a cutoff. Don’t assume the agency will drop your older, strong past performance just because it’s outside a stated window — and don’t assume the agency is allowed to, either. 
2. If the solicitation allows, submit your full performance history, including older references. Even where an agency signals a preference for recency, older exceptional or very-good ratings can still carry weight in a close competition. 
3. If you’re on the losing end of an award, look closely at how “may be” and “will be” language was actually applied. A mismatch between the solicitation’s announced evaluation approach and what the agency actually did is a recognized, fact-specific basis for protest — but, of course, as always, this depends on the exact wording of your solicitation. 
4. Prejudice isn’t automatic — you have to show your work. Even a real evaluation error won’t get you a sustained protest unless you can explain, concretely, how it affected your competitive position. Simply asserting “we were prejudiced” isn’t enough, as the protester here found out on its second argument. 
5. A close price gap plus an equally-weighted non-price factor is the kind of fact pattern that supports prejudice arguments. In a best-value solicitation, if your price is only modestly higher and past performance (or another non-price factor) carries meaningful weight, evaluation errors under past performance (and other non-price factors) are worth scrutinizing closely.