Counsel Commentary: Whose Past Performance Is It Anyway?

Many government contractors do not operate as a single legal entity but rather as a corporate family comprising a parent company and one or more subsidiaries under common ownership. When it comes time to compete for a bid, contractors naturally want to draw on the past performance and experience of that broader corporate group.

In his latest Counsel Commentary column for Contract Management magazine, Rogers Joseph O’Donnell, P.C., shareholder Stephen L. Bacon writes that this approach is understandable, but it has consistently tripped up offerors that treat their corporate family as a single entity for bid purposes. 

The column, “Whose Past Performance Is It Anyway?” examines two recent decisions from the U.S. Court of Federal Claims, Noblis MSD, LLC v. United States and ASRC Federal Infrastructure Support, LLC v. United States, which he calls “required reading for contractors that rely on affiliates to perform work for the government.”

For Noblis, Bacon walks through Chief Judge Solomson’s four-part framework for how agencies may weigh affiliate and subcontractor past performance, from a total exclusion to a “silent” solicitation that says nothing on the subject. Running through all four, Bacon notes, is what the Court called the “Iron Law of Privity”: there is one offeror, that offeror alone is in privity with the government, and affiliates’ experience remains legally their own unless the proposal shows otherwise. The awardee in Noblis fell short of that standard, Bacon explains, by repeatedly referring to an undefined “Team” without identifying which affiliate personnel, resources or commitments would actually support contract performance.

The second decision, ASRC Federal, involved a solicitation that expressly permitted reliance on affiliate past performance, yet the same problem arose anyway. Quoting Judge Hertling, Bacon notes the awardee’s proposals “merely aggregate the entire corporate family under the single name … without distinction,” and that an agency “may not simply treat affiliate personnel as alter-egos of the affiliate itself.”

Bacon’s takeaways for contractors include identifying which of the four permutations applies to a given solicitation, using the question-and-answer process to clarify ambiguous instructions and clearly linking an affiliate’s prior record to specific resources and roles in the proposal itself.

This article was published in the July/August 2026 issue of Contract Management magazine by the National Contract Management Association (NCMA). Access to the full article in NCMA’s online content library is subject to NCMA’s article access policies.

View a PDF of the article here.