Georgia Tech Procurement Assistance Center

Formal claim required to appeal negative performance evaluation

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For federal contractors, it is not an exaggeration to say that performance evaluations are the lifeblood of the business.

A less-than-satisfactory evaluation in the Contractor Performance Assessment Reporting System (CPARS) affects far more than just the agency’s assessment of performance on a particular project.  A negative evaluation follows a contractor around – impacting the ability to obtain future contracts due to the specter negative past performance ratings.

The good news for contractors is that the ability to challenge and – if successful – reverse negative CPARS evaluations is a quickly developing area of government contracting law.

The first step in any successful CPARS challenge involves meaningful participation in the evaluation process.  The Federal Acquisition Regulation (FAR) Part 42.15 entitles contractors to submit comments and receive an agency review of a disputed performance evaluation.  Specifically, contractors are entitled to submit comments, rebuttal statements, and/or other information in response to the agency’s evaluation.  The agency must then review those comments at a level above the contracting officer and update the evaluation, if necessary.

Keep reading this article at: https://governmentcontracts.foxrothschild.com/2017/09/articles/contract-claims/cpars-challenge-primer-formal-claim-required-to-appeal-negative-performance-evaluation/

What to expect as the curtain comes down on federal fiscal year 2017

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Government Product News asked Chuck Schadl for his take on government selling opportunities as the federal fiscal year draws to a close on Sept. 30. Schadl is Group Manager for Government Contracting Services at the Georgia Institute of Technology. Here are his views.

The federal government’s year-end spending sprees are legendary as agencies try to commit contracting dollars – lest they have to turn their leftover budgets back to the U.S. Treasury.

A study conducted last year, however, shows that spending just before September 30 seems to be trending downward, with more attention being given to better planning the spend that begins anew on October 1.

The study, “Positioning for 2017: Competitive Outlook in Defense and Civilian Agencies,”shows that for the past two years both defense and civilian agencies have softened their year-end spending spike. Big data and analytics firm Govini conducted the research.

That said, there’s still a disproportionate amount of contract dollars obligated in the fourth quarter of the federal fiscal year – at least 30 percent.

What can vendors do now to perhaps capture year-end money, as well as set the stage for the new fiscal year?

Keep reading this article at: http://americancityandcounty.com/federal/what-expect-curtain-comes-down-federal-fiscal-year-2017

DOE rescinds $5 billion award due to contractor sale after bid submission

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GAO-GovernmentAccountabilityOffice-SealA string of recent decisions have found the U.S. Government Accountability Office (GAO) struggling with the impact of corporate transactions on pending proposals.

  • FCi Federal, Inc., B-408558.7, B-408558.8, Aug. 5, 2015, 2015 CPD ¶ 245 (overturning award where “as a result of the sale . . . the original proposal, upon which the award decision was based, no longer reflects the intended approach to performance”).
  • Wyle Labs., Inc., B-408112.2, Dec. 27, 2013, 2014 CPD ¶ 16 (overturning award where the awardee had recently engaged in a corporate reorganization).
  • IBM U.S. Federal, B-409806 et al., Aug. 15, 2014, 2014 CPD ¶ 241 (noting that a corporate reorganization did not appear “to have any significant cost or technical impact on performance of the requirements”).

These decisions have led to significant uncertainty as to what best practices should be adopted by contractors in significant transactions.

Continuing this confusion is yet another case where an apparently successful offeror has lost its contract because of a transaction.  Last week, the National Nuclear Security Administration (NNSA) rescinded the award of a nearly $5 billion contract to a Lockheed Martin company—Nevada Site Science Support and Technologies Corporation (NVS3T)—after learning that the company had been sold to Leidos Innovations Corporation after submission of the bid.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=526492

Reverse auctions once again in lawmakers’ crosshairs

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Lawmakers are marshaling arguments to restrict the contracting tool called a reverse auction, criticizing agency reliance on a practice dominated by a single private firm at a Thursday hearing of the House Small Business subcommittee.

Rep. Richard Hanna, R-N.Y., who has introduced H.R. 1444 to limit reverse auctions, said that allowing contractors to bid electronically with increasingly lower prices to provide goods and services creates “a race to the bottom” that neither assures quality nor helps channel work to small businesses. “When reverse auctions are used properly, they can save taxpayer dollars,” Hanna said. “Unfortunately, some agencies have used reverse auctions in a manner that evades vigorous competition and contractor protections.”

Use of the tool at agencies such as the Veterans Affairs Department is dominated by a single Vienna, Va.-based firm called FedBid, which has become controversial for its lobbying practices. The Office of Federal Procurement Policy has been collecting data on the practice, but has yet to issue guidance, noted the panel’s ranking member, Rep. Nydia Velazquez, D-N.Y.

Keep reading this article at: http://www.govexec.com/contracting/2015/03/reverse-auctions-are-lawmakers-crosshairs-again/108069

Contractors soon will be able to rate transactions with agencies

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Contractors will now be able to rate their transactions with federal agencies to help those agencies improve the procurement process, says OFPP Administrator Anne Rung in a March 18 memo.

Anne Rung
OFPP Administrator Anne Rung

OFPP will use a tool called Acquisition 360, which Rung says is the first ever transaction-based feedback tool that allows agencies to identify strengths and weaknesses in their acquisition processes, according to the memo.

The memo instructs agencies to use the Acquisition 360 platform to to seek feedback from vendors and internal stakeholders – such as contracting officers and program managers – on how well certain high-dollar acquisitions perform.

But the effort to rate the contracting experience isn’t about calling out individual federal employees, Rung says.

Keep reading this article at: http://www.fiercegovernment.com/story/ofpp-contractors-can-rate-transactions-agencies-using-new-digital-platform/2015-03-19 

Subcontractor wants out of shipping contract; hearing set for Oct. 30

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A key subcontractor wants to stop shipping troops’ privately owned vehicles for the Department of Defense, further threatening a system that has been plagued by long delays and complaints from troops.

A U.S. District Court on Sunday enjoined Liberty Global Logistics of Lake Success, N.Y., to stick to its agreement to ship vehicles to and from Europe. Liberty is a subcontractor to Brunswick, Ga.-based International Auto Logistics, which in May took over a DOD contract to ship the personal vehicles of servicemembers and DOD civilian employees.

The temporary injunction will be the subject of a Thursday hearing at the U.S. District Court for the Southern of Georgia, Brunswick Division.

Liberty, of Lake Success, N.Y., has questioned whether International is financially capable of servicing a contract it won in May to ship the personal vehicles of DOD personnel when they transfer duty stations. In documents filed with the court by International, Liberty said that International had taken out an $8 million line of credit last year, which expired in July.

Keep reading this article at: http://www.stripes.com/news/subcontractor-wants-out-of-pov-shipping-contract-hearing-set-for-thursday-1.309580

Will the Government shred your contract after a hack?

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Contractors are concerned they might lose government business for coming forward about suspected internal data breaches, after the unprecedented decision by two departments to halt contracts with a hacked background investigation firm.

It is believed the personal information of Department of Homeland Security (DHS) employees likely was compromised when a suspected nation state penetrated a USIS corporate network.  USIS conducts personnel investigations on behalf of many agencies, including the Office of Personnel Management (OPM).  DHS and OPM temporarily ceased some jobs with USIS after the incident.

OPM did not pause work as a punishment, but rather as a way to protect federal employees until more details about the intrusion are known, agency officials told Nextgov on Friday, August 8, 2014.  But officials said they do not host information with USIS on the same system DHS uses.

DHS has issued stop work orders to temporarily halt activities that involve personal information, until the department can assess the full scope of the potential intrusion and repairs, Homeland Security officials told Nextgov.

Keep reading this article at: http://www.nextgov.com/cybersecurity/2014/08/will-government-shred-your-contract-after-hack/91049

Agency properly considered joint venture partners’ past performance, says GAO

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A procuring agency properly considered the past performance of a joint venture’s two partners, even though the solicitation prohibited the consideration of subcontractors’ past performance.

In a recent bid protest decision, the GAO held that where a solicitation only allowed past performance references for the “prime offeror,” the agency was permitted to consider the past performance of two joint venture partners–the entities comprising a “prime offeror.”

The GAO’s decision in System Integration and Development, Inc., B-408865.2, B-408865.3 (July 10, 2014) involved a Department of Labor solicitation for information technology systems operation and maintenance.  The solicitation provided for award on a best value basis, including consideration of offerors’ past performance.

With respect to the past performance factor, the solicitation called for offerors to submit up to five references for contracts completed in the last five years.  The solicitation stated that DOL would evaluate past performance “for the prime offeror only” and that “past performance for any proposed subcontractor will not be evaluated.”

Keep reading this article at: http://smallgovcon.com/gaobidprotests/agency-properly-considered-joint-venture-partners-past-performance-says-gao/

Past performance: Agency reasonably considered quantity

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An agency reasonably considered the quantity of offerors’ relevant past performance, even though the solicitation only stated that the relevance and quality of past performance would be considered.

In a recent bid protest decision, the GAO held that the quantity of an offeror’s past performance is logically encompassed within a review of the quality of past performance, and need not be separately identified as an area of evaluation.

The GAO’s decision in A&D General Contracting, Inc., B-409296 (Feb. 24, 2014) involved an Army Corps of Engineers solicitation for services to support military construction and repair projects.  The solicitation was issued as a small business set-aside.  Evaluation was to follow a two-phase process.  In the first phase, the Corps would consider past performance and technical approach.  The most highly rated proposals would be invited to participate in phase two.

The solicitation stated that offerors’ past performance would be evaluated for relevance and quality.  In this regard, offerors were instructed to provide up to five examples of their recent, relevant projects.  The solicitation stated that the Corps would assign an overall performance confidence assessment rating based on the overall relevance and quality of the offeror’s past performance.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/past-performance-agency-reasonably-considered-quantity

Shutdown consequences set to begin for government contractors

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Contractors in recent weeks have complained about losses in productivity from preparing for a potential government shutdown, but worse impacts are almost certainly on the way now that the closure has taken effect.

The Department of Homeland Security warned of what would be in store last week in a letter to partner firms. “As a consequence of the lapse, certain planned procurements may be cancelled and certain existing contracts may be stopped, reduced in scope, terminated or partially terminated,” the memo said.

DHS promised to notify businesses of any changes that would be necessary, but the answers cannot come soon enough for some firms.  A recent Post article quoted company planners saying they found it nearly impossible to determine how the shutdown would affect them because of the many variables involved.

Among the factors to consider: Whether contracts are covered by past or future congressional appropriations — the latter would require a new spending deal from lawmakers and the White House  – and whether their workers are exempt from furloughs because they assist with essential government functions.

Keep reading this article at: http://www.washingtonpost.com/blogs/federal-eye/wp/2013/10/01/shutdown-consequences-set-to-begin-for-government-contractors/ 

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