March 8, 2012 by cs
Companies would lose the opportunity to respond to performance reviews written by government officials under a new contracting bill. The reviews often play a major role in winning future contracts.
The Comprehensive Contingency Contracting Reform Act (S. 2139), which was introduced Feb. 29, would revise language in the Federal Acquisition Regulation that gives companies 30 days to comment, provide additional information or rebut a contracting official’s assessment of their work. The same FAR provision requires agencies to provide companies with a copy of the work performance evaluation.
Trey Hodgkins, senior vice president for national security and procurement policy at TechAmerica, said this proposed FAR revision is huge change in procurement. It eliminates the ability for contractors point out mistakes or offer their perspective on circumstances when agency officials view them differently.
“This provision may lead to a bad situation or bad feelings, at least,” Hodgkins said.
A customer agency may be unhappy because it didn’t get what it wanted, although the contractor may have been bound by the firm-fixed price contract that the agency awarded. The result might be a lackluster performance review.
“That’s not unheard of,” Hodgkins said.
Sens. Claire McCaskill (D-Mo.) and Jim Webb (D-Va.) introduced the contracting reform bill, which is based on recommendations from the Commission on Wartime Contracting in Iraq and Afghanistan. McCaskill and Webb created the independent commission in 2007, and the commission issued a final report in 2011.
Among its other provisions, the bill would expand what goes into the Federal Awardee Performance and Integrity Information System, a database of contractors’ past performance and other related information. It would have agencies include information on any of a contractor’s parent or subsidiary entities.
The legislation would elevate oversight responsibilities for procurement officials and enhance management structures for the agencies handling contingency contracting. McCaskill and Webb want procurement training added to education curricula for both professional military and contingency operations. The training would deal with defining requirements and the strategic impacts of contracts on the mission.
The legislation would require justifications for sole-source contracts to handle compelling demands.
The bill has been referred to the Homeland Security and Governmental Affairs Committee for further review.
The Wartime Contracting Commission spent three years investigating contracts in Iraq and Afghanistan. In its final report to Congress, the panel estimated that the United States had lost as much as $60 billion through contract waste and fraud in those countries. The commission also identified major failures in contingency contracting planning, execution and oversight.
It concluded that such waste will increase if officials don’t toughen accountability as U.S. operations wind down, support for programs declines, and major reconstruction projects become unsustainable.
McCaskill, who introduced legislation with Webb to create the commission, has been focused on procurement and contracting reform. She’s chairwoman of the Senate Homeland Security and Governmental Affairs Committee’s Contracting Oversight Subcommittee and also chairwoman of the Senate Armed Services Committee’s Readiness and Management Support Subcommittee.
“When Jim and I got here, nobody was paying attention to the billions of taxpayer dollars being wasted in Iraq and Afghanistan,” McCaskill said in a statement. “But with the roadmap provided by the commission report, we can change the way our government contracts during wartime, and make sure these failures are never repeated.”
About the Author: Matthew Weigelt is a senior writer covering acquisition and procurement for Federal Computer Week. This article was published on Mar. 1, 2012 at http://washingtontechnology.com/articles/2012/03/01/no-review-past-performance-evaluation.aspx?s=wtdaily_020312.
February 16, 2012 by cs
Almost every proposal you write has a requirement for information on past performance. The government uses this information to evaluate how well your company has performed on similar programs and expects your past performance to be a predictor of how well you will perform on the program you’re currently bidding.
Because past performance can be an important discriminator in the evaluation and selection process, there are some things you should know about how to write your past performance response.
Past performance versus past experience
Past performance comprises a set of specific contracts that you select to demonstrate how well your company, or your team, has performed on contracts that are similar in size, scope, and complexity to your current bid.
Past experience, which is sometimes confused with past performance, is about the broader issue of what experience and expertise the bidding organization has gained from all of its contract work and the work of its teammates.
Select contracts to demonstrate past performance
Past performance is all about relevancy and how well you performed the work you’re referencing. The government will consider these two factors together when developing your past-performance score — and both are important. However, performance is more important than relevancy. It is better to showcase your best-performing contracts and argue that they are relevant than to select contracts that are highly relevant and had poor performance.
Expect the government evaluator to ask your customers how well you did performing each contract. Typically, this happens via a formal past-performance questionnaire submission process and/or direct communication from the government evaluators to your customers. The government keeps two databases—the Contractor Performance Assessment Reporting System (CPARS) and Past Performance Information Retrieval System (PPIRS)—to determine how well your company performs its contracts.
Government access is restricted to those individuals who are working on source selections, to include contractor responsibility determinations.
With the CPARS, companies can regularly review their own ratings for each evaluated contract, but cannot check ratings for other companies. In order to access PPIRS information, a contractor must be registered in the Central Contractor Registration (CCR) system and must have created a Marketing Partner Identification Number (MPIN) in the CCR profile. Because past-performance ratings are such an important factor in proposal evaluations, every company should regularly review its CPARS ratings and challenge any evaluations they consider unfair.
Write your past performance summary
Each RFP will be very prescriptive about the information you need to provide when you describe each past-performance contract. While it may seem obvious, you really do need to provide all the requested information in order to submit a “compliant” proposal (see my Washington Technology article, “6 reasons your proposals fail,” October 2011).
You’ll be asked to provide information to show contract relevance, so keep this in mind when you write your response. Measures of relevance include contract size, scope and complexity, as well as the technical scope of work performed.
The description of the work is where you can stand out. Write your response to not only show that you performed relevant work — which every bidder does — but that you also had specific accomplishments that were meaningful to the government. Don’t just parrot back the statement of work from the contract you are citing. Focus on accomplishments because it’s these achievements that can make your contract past performance stand out from the crowd.
Most importantly, make sure you have outstanding past performance on the contracts you present. Confirm this information with your customers and with your teammates’ customers before you submit your proposal.
The government will read what you write, and they will validate the content. A good writer can present your past performance in a credible, compelling way, but if the underlying performance is less than desirable, it’s hard to overcome the truth.
About the Author: Bob Lohfeld is the chief executive officer of the Lohfeld Consulting Group. This article was published by Washington Technology on Feb. 10, 2012 at http://washingtontechnology.com/articles/2012/01/30/insights-lohfeld.aspx?s=wtdaily_130212.
October 25, 2011 by cs
A General Services Administration (GSA) effort to consolidate federal online acquisition systems will likely receive no development money during the current fiscal year, causing GSA officials to anticipate a delay in the project.
However, GSA officials are going forward with a planned sources sought notice, to be released shortly, seeking private sector input on the viability of replacing mandatory federal vendor acquirement of a DUNS number from Dun & Bradstreet with a government-generated unique identifier.
If the government does replace DUNS with its own unique identifier system for vendors, the transition would likely be tied to the third phase of the online acquisition system consolidation effort, said Kathleen Turco, head of GSA’s office of governmentwide policy, during an Oct. 21 interview.
The integration effort seeks to consolidate 9 currently separate systems into one, to be known as the System for Award Management, or SAM. IBM received a $74.4 million contract in 2010 to develop the SAM architecture; part of the consolidation effort includes unifying the currently disparate databases into a single, unified one.
Because GSA received $7 million in development funds during fiscal 2011, which ended on Sept. 30, it will be able to proceed with the first phase of the consolidation, which will tie together Central Contractor Registration, Online Representations and Certifications Application and the Excluded Parties List System.
Starting in May, front-end users will find that they have to log onto SAM only once to access the functionalities of all three systems, Turco said.
However, a request for $15 million in development, modernization and enhancement money for the current fiscal year has bumped up against spending constraints; the Senate Appropriations Committee markup of GSA’s fiscal 2012 spending bill denied the request in total. The House version would appropriate about $3 million in DME money for the project, Turco said. Congress has yet to pass any fiscal 2012 appropriations bill; the federal government is operating under a continuing resolution that expires on midnight of Nov. 18.
As a result of the House and Senate marks, Turco said GSA will likely postpone roll out of phase 2, under which GSA plans to consolidate FedBizOps, the Electronic Subcontracting Reporting System, and the Assistance Program Catalog. Originally, GSA had planned to unveil that phase in the spring of 2013; if GSA receives sufficient funding for fiscal 2013, it would be able to complete that phase in spring 2014, Turco said.
The third phase would consolidate FPDS , Wage Determinations Online and the Past Performance Information Retrieval System. The earliest phase 3 could now be completed–it was originally planned for spring 2014–is now spring 2015, Turco said.
It’s in conjunction with phase 3 that GSA would likely also transition from using DUNS as a unique vendor identifier to a government-generated number, if GSA decides to do so, Turco added.
Vendors wishing to do business with the government must receive a unique identifier–in some cases, more than one, depending on the number of physical locations and legal divisions a company has–and GSA has long contracted with Dun & Bradstreet for government vendors to receive Data Universal Numbering System identifier for free.
But, the government pays Dun & Bradstreet $18 million a year for the service, making it the single most expensive element of the Integrated Acquisition Environment, the name GSA gives to 9 systems set for consolidation into SAM.
“We’ve had a lot of push on us from the Hill and many vendors have said to us ‘Why is it only Dun and Bradstreet?’” Turco said.
However, replacing DUNS would be no easy task, she acknowledged, since DUNS are used in financial systems to pay vendors and have become deeply integrated into IAE feeder systems.
– by David Perera, Fierce Government IT, Oct. 24, 2011 – http://www.fiercegovernmentit.com/story/turco-sam-deployment-likely-be-delayed-gsa-might-replace-duns/2011-10-22?utm_medium=nl&utm_source=internal
November 12, 2010 by cs
Some federal procurement officers are refusing to publicly release contractor ratings data that may show agencies are not properly evaluating the performance of vendors who receive billion-dollar contracts, according to a consulting practice that regularly files Freedom of Information Act requests for the data.
In June, Jeff Stachewicz, founder of the FOIA Group, tried to obtain contractor evaluations from several agencies, including the departments of Defense, Energy and Interior, the Environmental Protection Agency and NASA. Interior and NASA released their contractor performance ratings, a move that Stachewicz applauds and attributes to President Obama’s push for greater transparency.
But it took months for FOIA officers to respond to the requests. Stachewicz believes that’s because some contracting officials did not want the public to see incomplete ratings contained in the Past Performance Information Retrieval System, and the application used to capture the information, the Contractor Performance Assessment Reporting System. Some agencies, such as the Defense, Homeland Security and Justice departments, denied his requests. Several of his other inquiries are still pending.
To better understand what was holding up his inquiries, Stachewicz filed a FOIA request to obtain e-mail correspondence between various agencies and Defense, which controls the databases. Two weeks ago, Energy provided him nearly 30-pages of redacted e-mails to and from Defense officials, including one exchange of messages indicating Energy had trouble obtaining its information from Defense.
In that exchange, an Energy official asked, “Is there someone within DOD that can or will release DOE performance data?” In reply, a Defense official in the database’s program office stated that a senior procurement analyst at the Pentagon had advised that the office “will not provide any ratings information in electronic or other format. DOD has not released this information in the past.”
Stachewicz says the e-mail indicates Defense was trying to block the information from consideration for release under FOIA at other agencies.
“That was the smoking gun. That one response was, ‘We don’t want to give that data out.’ In my opinion, that’s not proper. They were deliberately trying to avoid the FOIA by not giving it to the agencies to make a decision,” he said. “This flies in the face of the Obama transparency doctrine. It’s a report card . . . Let them kind of man up to their score.”
Stachewicz said while contractors are accountable for their scores, procurement officials who manage the scoring systems also are responsible for maintaining up-to-date, accurate and complete assessments. The procurement officials “are not trying to hide what’s there. They are trying to hide what’s not there,” he said.
In the past, federal auditors have sharply criticized agencies for filing insufficient evaluations of contractors that failed to provide project managers with information necessary to pick the best suppliers. Part of the difficulty is that the Office of Federal Procurement Policy has not established a way to standardize ratings scales across agencies nor made thorough documentation a priority, according to a 2009 Government Accountability Office report. Until such problems are resolved, the report said, the Past Performance Information Retrieval System “will likely remain an inadequate information source for contracting officers. More importantly, the government cannot be assured that it has adequate performance information needed to make sound contract award decisions and investments.”
Energy officials did not respond to several requests for comment.
Defense officials said it is not true that anyone stopped the department’s employees from releasing ratings information to the agencies. “If an agency has come to the CPARS or PPIRS program offices and requested a copy of the data they have submitted for their own review for potential FOIA release, we have provided it,” Defense spokesperson Cheryl Irwin said.
But “there are additional factors,” she said, listing several issues that have caused delays in distributing the ratings. Historically, for example, Defense has not released certain evaluations because of concerns about disclosing vendors’ competitive and confidential information. In addition, Stachewicz’s group submitted requests to many agencies, all of which landed in the Defense program’s office simultaneously.
“DoD coordinated with the Office of Federal Procurement Policy to understand if they wanted to make a governmentwide decision about releasability of the data,” Irwin said. The office, which is part of the Office of Management and Budget, has not done so, but has held conference calls with several agencies to gain an understanding of how each is handling the requests, she said.
Because there is no governmentwide policy on publicly releasing data from the contractor ratings systems, Defense is sending the information to the agencies for them to make decisions about disclosure, Irwin added.
“It has taken a couple of weeks to clear up some of the confusion from [such issues] and accomplish the necessary coordination with OFPP,” she said.
OMB officials confirmed that OFPP is convening conference calls with certain agencies about providing contractor ratings in response to FOIA requests. But each agency has discretion in choosing whether to publicly release its own data. Officials added they are unaware of any cases in which Defense has not provided agencies with their own ratings data or pressured agencies not to disclose their data.
The Office of Government Information Services, a new organization within the National Archives and Records Administration responsible for resolving FOIA disputes, said it is working with OMB and several federal agencies to examine procedures for consistently responding to FOIA requests for access to contractor performance ratings.
FAR Councils Issue Final Rule Unveiling A New Measure Designed To Ensure Only Responsible Contractors Obtain Contract Awards
April 16, 2010 by cs
The Federal Awardee Performance and Integrity Information System, (“FAPIIS”), takes effect on April 22, 2010. Responding to heightened Congressional concerns regarding the performance and integrity of companies receiving federal contracts, FAPIIS is intended to enhance the government’s ability to prevent non-responsible contractors from receiving contract awards. FAPIIS will serve as a “one-stop” repository containing all data reflecting on a contractor’s responsibility.
Contracting officers, in fulfilling their obligation to make a responsibility determination prior to contract award, will be required to review the FAPIIS data pertaining to the contractor. That information will include: contracting officers’ non-responsibility determinations; default terminations; defective pricing determinations; administrative agreements with suspension and debarment officials; contractor criminal convictions, civil liability, and adverse administrative actions involving a finding of fault and liability in connection with the award or performance of a government contract; and certain settlements in criminal, civil, or administrative proceedings.
The Civilian Agency Acquisition Council and Defense Acquisition Regulations Council believe that arming contracting officers with this information will “significantly enhance the Government’s ability to evaluate the business ethics and quality of prospective contractors competing for Federal contracts and to protect taxpayers from doing business with contractors that are not responsible sources.” (See FR 14059, March 23, 2010, available at: http://edocket.access.gpo.gov/2010/2010-6329.htm).
Responsibility for providing and updating the data in FAPIIS will rest, at least in part, on contractors, who may be required to certify their compliance with the new rule.
Responsibility Determinations Under Current Law
Currently, before the award of any federal government contract, contracting officers are required to make an “affirmative determination of responsibility.” (FAR 9.103(b)). To make this determination, contracting officers are required to “possess or obtain information sufficient to be satisfied that a prospective contractor currently meets the applicable standards . . . .” (FAR 9.105-1). In practice, contracting officers typically review the Excluded Parties List System (“EPLS”), www.epls.gov, the Past Performance Information Retrieval System (“PPIRS”), www.ppirs.gov, and any other information they receive pertaining to the contractor’s responsibility, including information obtained through pre-award surveys. FAPIIS will significantly expand the nature and volume of data to be considered by contracting officers and will store that information in a single repository.
FAPIIS Applies to All Contracts that Exceed the Simplified Acquisition Threshold, Including Commercial Item Contracts and Contracts With Small Businesses
FAR 9.104-6 will require contracting officers to review the FAPIIS database, located at http://www.ppirs.gov/fapiis.html, prior to any contract award that exceeds the simplified acquisition threshold. The rule is applicable to commercial item and commercial-off-the-shelf (COTS) procurements, and to contracts awarded to small business concerns. The FAPIIS database will provide the contracting officer access to the data maintained in the EPLS, the PPIRS, and the additional information now required by the new rule. Contracting officers will be required to document the contract file to explain how the information was considered in any responsibility determination, as well as the action that was taken as a result of the information.
Additionally, prior to proceeding with award, contracting officers must notify the agency official responsible for initiating debarment or suspension, if information is identified in FAPIIS that appears appropriate for that official’s consideration.
Contractor Reporting Requirements
The rule will impose new reporting requirements on contractors in connection with all federal contract solicitations exceeding $500,000. Under FAR 52.209-7, offerors will be required to report information pertaining to legal proceedings in connection with the award or performance of a federal government contract.
Specifically, offerors will be required to report whether within the last five years they or a principal were involved in any proceedings that resulted in: (1) a criminal conviction; (2) a finding of fault and liability in a civil proceeding that results in a payment of greater than $5,000; (3) a finding of fault and liability in an administrative proceeding that results in a fine of greater than $5,000, or reimbursement, restitution, or damages greater than $100,000; and (4) a settlement in a criminal, civil, or administrative proceeding where fault is admitted and a decision on the merits could have led to any of the results above.
FAR 52.209-7 also will require offerors to indicate whether they have active federal contracts and grants with a total value greater than $10 million. If so, by submission of their offer, the contractor is deemed to certify that the data they have submitted under FAPIIS is current, complete and accurate as of the date of submission of the offer. In addition, contracts exceeding $500,000 awarded to contractors with active federal contracts and grants with a total value greater than $10 million will contain FAR 52.209-8, “Updates of Information Regarding Responsibility Matters.” That clause will require the contractor to update the data it is required to submit to FAPIIS on a semi-annual basis through the life of the contract.
The Rule Offers Some Protection to Contractors
The rule does provide some limited protections to contractors. If the FAPIIS database contains adverse information, contracting officers will be required to give offerors the opportunity to provide additional information to demonstrate their responsibility before making a non-responsibility determination, unless the contractor already has been suspended or debarred. Consistent with the current protections provided to small business concerns, where the contracting officer determines that such a concern is not responsible, the contracting officer is required to refer the concern to the Small Business Administration, which will decide whether to issue a Certificate of Competency.
In addition, FAPIIS will notify contractors whenever the government posts new information to the contractor’s record, and the contractor will have an opportunity to post comments and respond.
The Rule Presents Challenges to the Government and Contractors Alike
Contracting officers are now charged with reviewing and analyzing a potentially large database of conclusory and often negative information in order to determine whether the contractor is responsible. While the new rule serves the legitimate purpose of preventing taxpayer dollars from going to non-responsible contractors with whom the funds may not achieve their intended purpose, the rule appears to be fraught with potential issues for the government and contractors alike including:
- Misuse of Information: FAPIIS collects a significant amount of information, some relevant, that contracting officers are required to evaluate. Yet, the rule provides no guidance to contracting officers as to how to utilize this information other than to say use “sound judgment.” Many contracting officers may lack the experience and/or training necessary to assess the weight to afford to the various types of information contained in FAPIIS.
- Disclosure of Contractor Information: While FAPIIS is restricted to the government and to contractors, who may access their own data, the information housed in FAPIIS likely is to be the target of Freedom of Information Act (“FOIA”) requests by private citizens and watchdog groups leading to the potential disclosure of contractor-sensitive data.
- Delay to the Acquisition Process: As a result of the amount of information contracting officers may need to review as a result of FAPIIS, and their efforts to collect additional information from contractors so as to document the file with an explanation for their award decision, including to support awards to contractors with apparent adverse matters in their database, the acquisition process is likely to be further protracted by this new rule.
- Increase in Suspension and Debarment Inquiries/Actions: The rule is likely to generate a significant increase in referrals to suspension and debarment officers from contracting officers whose only guidance is to refer “information . . . that appears appropriate for that official’s consideration.” Such an increase in referrals, in turn, is likely to result in additional inquiries from agency suspension and debarment officials to contractors in the form of requests for information and show cause letters. Contractors will be required to incur the cost and disruption of preparing present responsibility submissions, in many cases likely stemming from dated and insignificant matters.
- Increase in Bid Protests: Bid protests alleging erroneous and unreasonable agency decisions as to responsibility determinations are likely to increase. Not only will contract performance under these protested contracts be delayed, but the government and contractors will be required to spend considerable sums of money to resolve them.
- Decreased Contractor Incentive to Enter Into Administrative Agreements: The rule may act to discourage contractors from entering into administrative agreements concerning suspension and debarment because such agreements or the substance thereof will be published in FAPIIS and ostensibly could be used by a contracting officer to find a contractor non-responsible for a procurement, despite the additional undertakings to which the contractor agreed, including remedial measures, enhancements to their compliance program, and new internal controls.
- De Facto Debarment: The compilation of apparent negative data in FAPIIS may result in agencies repeatedly denying a contractor awards based on responsibility concerns without following the debarment procedures set forth in FAR Subpart 9.4, in violation of law and the contractor’s due process rights.
Time will reveal whether these concerns regarding FAPIIS are more theoretical than actual, and whether the rule serves to enhance the ability of the government to do business only with responsible contractors. It may be that the rule will require revision, both as to the nature of the information contained in the database as well as to the instructions provided to contracting officers in using that data.
In the interim, contractors should revise their procedures and compliance practices to include the collection and reporting of FAPIIS information. Additionally, contractors need to be alerted to new information posted by the government to their FAPIIS database and to the use of that information by contracting officers. Contractors should be prepared quickly to address new postings and to respond to contracting officer inquiries with additional information that is relevant and may provide proper context for any adverse information contained in FAPIIS. Failure to take such steps could result in a variety of negative consequences, ranging from non-responsibility determinations and the loss of contract awards to the submission of inaccurate data and improper certifications.
© 2010 McKenna Long & Aldridge LLP
March 26, 2010 by cs
The broad database contains specific information on contractors’ and grantees’ reliability and history of work with the government
by Matthew Weigelt – Mar 23, 2010 – The Obama administration has settled on the details of a contractor database, as it intends to gather more information to keep a closer eye on government contractors.
Officials have finalized its regulation of the Federal Awardee Performance and Integrity Information System (FAPIIS), according to today’s Federal Register.
“We’ll be able to see, before any new contract is awarded, whether a company plays by the rules, how well they’ve performed in the past: Did they finish the job on time? Did the company provide good value? Did the company blow their budget? It’s your money, so you deserve to know how it’s spent and who these contracts are going to,” President Barack Obama said March 10.
Obama and other administration officials have started tougher oversight of the private sector because, they believe, it works too closely with the federal government.
The FAPIIS database contains specific information on the federal contractors and grantees’ reliability and history of work with the government. The database is available for use in award decisions at www.ppirs.gov.
FAPIIS is intended to significantly enhance the scope of information available to contracting officers as they evaluate prospective contractors competing for their contracts. Officials also hope to protect taxpayers by not having work done by contractors who are not responsible, according to the Federal Register notice.
Contracting officers now must consider all the information in FAPIIS and Past Performance Information Retrieval System (PPIRS) when making a “responsibility determination” about a company. The officers also must notify the agency official responsible for debarments or suspensions if the information appears appropriate for the official’s consideration, the rule states.
On the other side, contractors are required to confirm the information related to criminal, civil and administrative proceedings in which they were found at fault. They then must report the information to FAPIIS. They also have to update their profile every six months throughout the life of a contract. Contractors update the information in the Central Contractor Registration database.
In the fiscal 2009 National Defense Authorization Act, Congress required the administration to establish FAPIIS as a one-stop shop for contractor data. Lawmakers say information on companies was spread too widely in too many separate databases.
In the past, contracting officers historically had access to readily available government information only on suspensions and debarments as they determined a bidding company’s past work. That information was included in the Excluded Parties List Systems.
Since the summer of 2009, agencies have been required to submit electronic records of contractor performance into the PPIRS. The goal is to have a large amount of information from the agencies available to contracting officers across the government. To expand the amount of data in the FAPIIS, officials intend to collect state-level information on contractors in connection with the award or performance of a contract or grant with a state, according to the notice.
“This rulemaking and the associated launch of FAPIIS are part of an ongoing initiative by the administration to increase consideration of contractor integrity and the quality of a contractor’s performance in awarding federal contracts,” the notice states.
About the Author: Matthew Weigelt is acquisition editor for Federal Computer Week.
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