Georgia Tech Procurement Assistance Center

CPARS challenges: No appeals without contracting officer claim

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Ask many government contractors, and they’ll tell you that even a single negative report in the Contractor Performance Assessment Reporting System (CPARS) can have a powerful adverse impact on winning future prime contracts.

Given the importance of these performance reports, it’s little wonder that a contractor on the receiving end of a negative CPAR may want to ask a judge to review the matter.  But as one recent case demonstrates, a contractor cannot challenge a CPAR with a judge until the contractor has followed the FAR’s claims process.

The decision of the Armed Services Board of Contract Appeals in SkyQuest Aviation LLC, ASBCA No. 62586 (2021), involved a contract between the Air Force and SkyQuest Aviation LLC.  Under the contract, SkyQuest was to provide “functional check flight pilot, flight engineer, and related services in exchange for $429,000.”

Continue reading at:  SmallGovCon

Don’t wait to challenge or correct your bad CPARS

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Have you ever received a negative CPARS that you felt was unjustified?  Did that negative CPARS cause you to lose other contract awards?  That is what happened to the contractor-protester in Colonna Shipyard, Inc. v. U.S., a recent post-award protest case heard before the Court of Federal Claims.  Unfortunately for the protestor in that case, the Court found that a bid protest was not an appropriate time to challenge the CPARS, and, therefore, partially dismissed the protest.

Continue reading at:  GovCon Examiner

DHS tests AI for making sense of contractor past-performance data

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The Department of Homeland Security is almost done with the first phase of a project that will allow federal agencies to use artificial intelligence for a task that can be overwhelming for humans: extracting, analyzing and visualizing the underutilized data in the governmentwide system for contractor past-performance records.

Next week DHS will finish reviewing services from nine vendors who were given data sets from the Contractor Performance Assessment Reporting System (CPARS).  Before awarding contracts worth more than $250,000, agencies review historical data in the CPARS to see how offerers acted under previous agreements.  It’s not an easy task.

With more than 1 million records covering 60,000 contractors, CPARS can bog down contracting officers, said Polly Hall, acquisition innovation advocate director of the Procurement Innovation Lab at DHS.  They can sort records by contract value, Data Universal Numbering System (DUNS) number or performance period, but even once those filters are applied, the results frequently still number in the hundreds and can only be viewed PDF at a time.

Continue reading at:  Fedscoop

Why a ‘satisfactory’ rating is bad thing for contractors

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Let’s talk about the word “satisfactory.”

For most of us, the first thing that comes to mind is the grade of a “C.”  If you received a “C” in high school, your parents probably asked you what happened, as if satisfactory wasn’t good enough.  Of course, there are some of us in certain subjects, say math, where a “C” was excellent.

But for the most part, getting a “C” in many households was unacceptable.

That word “satisfactory” is at the crux of what is wrong with the Contractor Performance Assessment Retrieval System (CPARS).

Too many contracting officers are saying a vendor’s performance is satisfactory for two main reasons: A lack of time to explain why the contractor was outstanding or exceptional, and to avoid any lengthy back-and-forth if a rating is below average or poor.

But as Greg Rothwell, the former Department of Homeland Security’s chief procurement officer, said at a recent event on CPARS, “If you are a vendor, getting a satisfactory kills you.”

This is because contractors and contracting officers should be using CPARS as one way to differentiate themselves from their competition.  But if everyone is rated “satisfactory,” then CPARS loses most of its value.

Not everyone believes earning a satisfactory rating is a killer.

Continue reading at:  Federal News Network

CPARS.gov now official source for past performance information

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The U.S. federal government has completed the merger of the Past Performance Information Retrieval System (PPIRS) with the Contract Performance Assessment Reporting System (CPARS.gov).  CPARS now serves as the federal report card system for prime contractors providing services and products to the U.S. federal government.

Government decision-makers now use CPARS to review contractors’ performance under previously awarded contracts.  Data points include requirements compliance, meeting deadlines, reporting processes, integrity and business ethics, pricing and invoicing, and customer-service processes.  These reviews often contain sensitive information and can also influence new contract awards, therefore, only authorized government personnel have access to these records, along with the specific awardee.  No records are available to the general public.

The contracts tracked in CPARS must be prime contracts and fall above the Simplified Acquisition Threshold (now $250,000 base plus option years).

Subcontracts are not tracked in CPARS, however, the Small Business Administration is considering a process to create a pilot program to provide subcontractor performance ratings.  No updates from the SBA regarding the subcontractor program have been posted since April 2018 when the Subcontractor Past Performance Pilot Program was published in the Federal Register.

Continue reading at:  TargetGov

How to challenge a bad performance rating

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While you might not be able to fight City Hall, you can fight a Contractor Performance Assessment Reporting System rating.  The Armed Services Board of Contract Appeals recently confirmed it has jurisdiction to annul an inaccurate and unfair government evaluation of a contractor’s performance — a potent form of relief available to companies who believe the government has improperly rated them.

In a published opinion — Cameron Bell Corporation d/b/a Government Solutions Group, ASBCA No. 61856 (May 1, 2019) — the board said that while it cannot require the government to issue a specific rating, it can remand the matter to the contracting officer with instructions to redo the evaluation.

By regulation, companies have a right to rebut a negative evaluation of their performance in the Contractor Performance Assessment Reporting System, or CPARS.  A contractor’s rebuttal submission typically is due within 14 calendar days of the date the agency invites the contractor to respond.  If this proves unsuccessful, a contractor may challenge the CPARS rating by submitting a claim with the contracting officer under the Contract Disputes Act, or CDA.  Then, if the contracting officer denies the claim, the contractor can appeal the decision to an appropriate Board of Contract Appeals or the United States Court of Federal Claims.

That is precisely what the contractor did in Cameron Bell.  There, a contractor challenged a less-than satisfactory rating of its performance in a CDA claim.  After the contracting officer denied the claim, the contractor appealed to the ASBCA seeking various forms of relief, including injunctive relief, breach of contract damages, and a request that the board “return [the] matter to the government with guidance indicating that the government should have rated appellant satisfactory, or better.”

The government moved to dismiss the appeal for lack of jurisdiction.  The board denied the motion in part, finding that it has jurisdiction to “assess whether the contracting officer acted reasonably in rendering the disputed performance rating or was arbitrary and capricious and abused his discretion.”  The board also noted that, while it lacks authority to order the government to revise a CPARS rating, it “may remand to require the contracting officer to follow applicable regulations and provide [the contractor] a fair and accurate performance evaluation.”

Continue reading at:  National Defense Magazine

Why contractor past performance data is becoming both more, less valuable

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When the General Services Administration released the $65 billion Alliant 2 governmentwide acquisition contract for IT services back in June 2016, it was one of the first major procurement efforts to put a premium on past performance.

As part of the self-scoring approach to Alliant 2, GSA determined that 40 percent of the evaluation points would be on how vendors have performed on previous and similar work with the government.  At the time, industry analysts praised GSA for building on this self-scoring approach.  Now three years later, the self-scoring approach where past performance is a significant evaluation factor has grown in popularity.

At the same time, vendors and federal procurement officials alike heed a common call that the current approach to obtaining past performance is problematic and needs to be rethought.

“As the government moves to buying more services and solutions, things are getting more subjective and you want to be able to do a better job of motivating contractors to do more,” said Jim Williams, a former federal executive with GSA, the IRS and the Homeland Security Department, and now a principal with Williams Consulting, LLC and an advisor for GovConRx.  “The forces are coming together to say vendor past performance is a valuable tool.  But it’s not working as it should because it’s too burdensome and not as accurate as it should be.  No one wants to throw it out.  We just want to fix it.”

Experts say the current system, the Contractor Performance Assessment Reporting System (CPARS), takes too much time to fill out, lacks important details and isn’t as accurate as it needs to be.

“The time and effort to draft CPARS evaluations is too much, and with most agency contracting staffs pressed to do more with less, that gets pushed out further, especially if there is a need to justify ratings over satisfactory,” said Mike Smith, a former DHS director of strategic sourcing and now executive vice president at GovConRx.  “There needs to be some way to justify anything over satisfactory that is not so hard to track down all the information so it becomes less cumbersome.  Contractors also are not actively engaged in the documentation and support of the ratings.  That has to change too, especially as agencies are paying a lot more attention to ratings.  We have to figure out how to make sure past performance ratings are not done in haste.”

Smith said on average, depending on the type of procurement, it could take a contracting officer a few minutes to a few hours to write an in-depth CPARS review.

New data compiled by GovConRx shows the value of CPARS is dropping dramatically.

Continue reading at:  Federal News Network

ABSCA confirms contractors may challenge unfavorable CPARS ratings

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While you might not be able to fight City Hall, you can fight your CPARS rating.  In a short opinion published May 1st, the ASBCA confirmed it has jurisdiction to annul an inaccurate and unfair government evaluation of a contractor’s performance.  Cameron Bell Corporation d/b/a Government Solutions Group, ASBCA No. 61856 (May 1, 2019).  Though the ASBCA cannot require the government to issue a specific rating, it can remand the matter to the contracting officer with instructions to redo the evaluation ─ a perhaps imperfect, yet still potent form of relief available to contractors who believe the government has improperly rated their contract performance.

By regulation, contractors are entitled to rebut a negative evaluation of their performance in the Contractor Performance Assessment Reporting System, or CPARS.  FAR 42.1503(d).  A contractor’s rebuttal submission typically is due within 14 calendar days of the date the agency invites the contractor to respond.  See id.  If this proves unsuccessful, a contractor may challenge the CPARS rating by submitting a claim with the contracting officer under the Contract Disputes Act (CDA).  See, e.g., Cameron Bell, ASBCA No. 61856, 2019 WL 2067642 (May 1, 2019).  Then, if the contracting officer denies the claim, the contractor can appeal the decision to an appropriate Board of Contract Appeals or the United States Court of Federal Claims.

Continue reading at:  Inside Government Contracts

SBA seeks public comment on proposed subcontractor past performance pilot program

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Past performance information is a key indicator of an offeror’s ability to successfully perform a contract and is required to be considered by agencies when making most types of contract awards. Many small businesses, however, get their entrance into government contracting through subcontracts to prime contractors. These first-tier small business subcontractors often have a difficult time providing verifiable past performance because they are outside of the Contractor Performance Assessment Reporting System (CPARS) process that provides that information for prime contractors.

The good news for first-tier small business subcontractors is that the 2017 National Defense Authorization Act (NDAA) amended the Small Business Act to require the Small Business Administration (SBA) to implement a pilot program to establish past performance ratings for small business subcontractors. Under this program, a small business concern without a past performance rating as a prime contractor in the Past Performance Information Retrieval System (PPIRS) may request a past performance rating in CPARS if the small business is a first-tier subcontractor under a covered Federal Government contract requiring a subcontracting plan in accordance with FAR 19.702(a). Ratings of subcontractor performance can also be requested on subcontracts that exceed the simplified acquisition threshold, or subcontracts for architecture-engineering services valued at $35,000 or more as provided in FAR 42.1502.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=697778

See the proposed rules and how to submit comments by June 19, 2018 at: https://www.federalregister.gov/documents/2018/04/20/2018-08330/information-collection-subcontractor-past-performance-pilot-program

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/

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