Counsel Commentary: Speak Now or Forever Hold Your Past Performance

Congress and the Small Business Administration have created a series of rules over the past several years that make it easier for small businesses to demonstrate past performance when bidding on government contracts. However, agencies frequently draft solicitations that conflict with those rules, creating potential risks for small business contractors.

In his latest Counsel Commentary column for Contract Management magazine, Rogers Joseph O’Donnell, P.C., shareholder Stephen L. Bacon writes that small businesses cannot assume favorable past performance regulations will be followed automatically. When a solicitation violates the governing rules, Bacon explains, businesses must take affirmative action through the question-and-answer process or a timely protest, since bid protest timeliness rules require filing any challenge to a conflict between a solicitation and the regulations before the proposal deadline.

The column, “Speak Now or Forever Hold Your Past Performance,” walks through four regulatory requirements governing the evaluation of small business past performance, using recent case decisions to illustrate what happens when firms fail to act in time.

Bacon first examines mentor-protégé joint ventures under 13 C.F.R. § 125.8(e), which bars agencies from holding protégé firms to the same evaluation standards as other offerors. In Innovate Now, LLC, GAO sustained a protest after the Air Force required protégé firms to meet the same requirements as all offerors, reinforcing that protégé firms may not be held to the same evaluation standards as other offerors.

Bacon then turns to DFARS 215.305(a)(2)(C), which requires contracting officers to consider relevant affiliate past performance for small business offerors on competitive DoD solicitations. In Tyonek Technical Innovations, LLC, GAO dismissed the protest as untimely because the solicitation made clear that affiliate past performance would not be attributed to the offeror without exception, leaving the underlying regulatory question unresolved.

The column also addresses first-tier subcontractor past performance under 13 C.F.R. § 125.11(c). In Highland Engineering, Inc., the protester argued its subcontractor experience should count because it performed duties and responsibilities normally performed by a prime contractor, but GAO rejected that reading of the solicitation. Bacon notes the protester may have fared differently had it challenged the solicitation’s restrictive terms before the proposal deadline.

Finally, Bacon reviews joint venture member past performance under 13 C.F.R. § 125.11(b), which allows a small business to rely on a joint venture’s experience if it identifies the relevant venture, the contracts performed and its specific duties within it.

As Bacon concludes, “a favorable past performance regulation does not enforce itself.” Firms can take advantage of these rules only when the solicitation aligns with what the regulations allow.

This article was published in the September/October 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.