Georgia Tech Procurement Assistance Center

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/

Government references didn’t complete past performance inquiries? ‘Too bad,’ says GAO

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Federal contractors frequently find themselves in the position of needing to establish their past performance credentials to secure future contracts – the government’s form of a reference check. The government often performs these reference checks by requesting completed past performance questionnaires, or PPQs, which the government uses as an indicator of the offeror’s ability to perform a future contract.

But what happens when a contractor’s government point of contact fails to return a completed PPQ?  As a recent GAO decision demonstrates, if the solicitation requires offerors to return completed PPQs, the agency need not independently reach out to government officials who fail to complete those PPQs.

By way of background, FAR 15.304(c)(3)(i) requires a procuring agency to evaluate past performance in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold. The government has many means at its disposal to gather past performance information, such as by considering information provided by the offeror in its proposal, and checking the Contractor Performance Assessment Reports System, commonly known as CPARS.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/government-references-didnt-complete-ppqs-too-bad-says-gao/

Challenge to negative performance report is not a ‘protest’

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A contractor’s attempt to challenge an adverse Contractor Performance Assessment Report (CPAR) was not a bid protest subject to the bid protest jurisdiction of the U.S. Court of Federal Claims.

CPARSIn a recent decision, the Court rejected a protester’s creative attempt to challenge a CPAR as part of a bid protest.  Instead, the Court held, a CPAR ordinarily must be challenged through the FAR’s claims and appeals processes–although the Court appeared to leave the door open to bid protest challenges in limited circumstances.

The Court’s decision in ITility, LLC v. United States, No. 15-237C (2016) involved a past performance evaluation ITility, LLC received from the U.S. Air Force under a program management support contract.  After various disputes arose, the Air Force issued a stop work order and allowed the period of performance to expire.  The Air Force subsequently issued an interim CPAR report concerning the contract.  The CPAR presumably rated ITility’s performance negatively (the actual rating is redacted from the Court’s decision).

Keep reading this article at: http://smallgovcon.com/u-s-court-of-federal-claims/cpar-challenge-wasnt-a-viable-protest-says-federal-court/

Rule would boost consideration of contractor past performance

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A proposed rule published Wednesday, Aug. 7, 2013 would update the Federal Acquisition Regulation (FAR) to help agencies consider past performance of contractors in awarding new work while shortening the comment period available to affected firms. The industry appears receptive.

As required by the fiscal 2013 National Defense Authorization Act (NDAA) President Obama signed on Jan. 2, the Defense Department, the General Services Administration and NASA drafted a rule to allow data on contractor past performance to be added to two databases, the Contractor Performance Assessment Reporting System (CPARS) and the Past Performance Information Retrieval System (PPIRS). The rule would also give contractors 14 days to submit comments, rebuttals or additional information in the database, rather than the current 30 days.

“It is important for past performance information to be shared with source selection officials immediately, so that award decisions can be better informed and made in a more timely manner,” the proposed rule states. “Expediting the time allotted to contractors to respond to performance evaluations should improve communication between the contractor and the government, enable current information to be shared quickly throughout the government, and ultimately ensure the government does business with high performing contractors.”

Keep reading this article at: http://www.govexec.com/contracting/2013/08/rule-would-boost-consideration-contractor-past-performance/68294/?oref=govexec_today_nl

3 tips to maximize past performance

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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.

Industry urges caution with Navy’s preferred supplier program

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Industry groups are expressing concern about a proposed Navy program that would reward contractors that best control costs, meet schedules, provide quality services and reduce energy consumption.

In May, the Navy announced it would establish a preferred supplier pilot program that would rate the service’s top 25 contractors based on “exemplary performance at their corporate level in the areas of cost, schedule, performance, quality and business relations.”

Companies designated as preferred suppliers would receive benefits such as more favorable progress payments, tailored reporting requirements and special award fee pools, but the conferred status would not be a factor in source selection, according to a May 24 Federal Register notice.

But, the Council of Defense and Space Industry Associations, made up of eight trade groups that represent thousands of contractors, argues the initiative is vague and poorly defined.

In comments issued to the Navy late last week, the council suggested that while it supports the program’s general concept, the proposal fails to clearly explain the criteria for entrance into the program or how it would accommodate new market entrants or small businesses with only a handful of contracts.

“It is right for the Navy to incentivize exemplary performance with the promise of preferred status,” said Alan Chvotkin, executive vice president and counsel for the Professional Services Council, a contractor trade association that is part of CODSIA. “However, any such program must also balance that preference with the innovations new entrants and small businesses may offer.”

Chvotkin noted the Navy’s initial guidance fails to answer several key questions. For example, while the preferred status will be conferred only at the corporate level — rather than on individual affiliates or subdivisions — it does not address joint ventures or business combinations. It also is unclear whether the Navy will evaluate only active contracts or if the program will encompass previous awards dating back several years.

In addition, the guidance fails to specify whether contracts with other Defense services will be considered, the groups said.

In a statement, the Navy said it had “received numerous comments during the open comment period, and we are analyzing input now. The Navy has not yet finalized how the Preferred Supplier Program pilot will be structured, but expects to do so after careful review of public and industry input.”

Preferred supplier programs are popular in the private sector and have been useful in incentivizing performance, according to the May Federal Register guidance. The Navy currently negotiates business arrangements on a contract-by-contract basis and “as a result of this decentralized and individual approach, loses an extremely important opportunity,” the notice said.

During the initial rollout, the Navy plans to use a five-star rating system based on Contractor Performance Assessment Reporting System data, although other sources of public information will be considered, the notice said. The Navy will consider a company’s technical competence, its ability to meet schedule and price, the responsiveness of management, oversight of key personnel, and the use of small business.

The program also will assess a contractor’s energy efficiency, but the council fears that such criteria could be an impediment for small businesses.

“What will be the impact on a small business that may not be in a financial position to implement specific energy efficiency or other PSP program components?,” the group asked in its comments. “Will the Navy have the resources to provide timely evaluation and responses to the influx of applications from potentially hundreds of primarily small and mid-tier businesses that will want to be designated a PSP? A gap in any of these areas will undercut the necessary legal and business foundations for a Navy PSP.”

The council urged the Navy to take a cautious approach in implementing the program. But, the Defense Department might have other ideas. In a June 28 departmentwide memorandum, Ashton B. Carter, undersecretary of Defense for acquisition, technology and logistics, suggested that as part of his industry efficiency initiative the Pentagon could “emulate the Navy’s pilot program to provide special benefits to consistently excellent industrial performers.”

Chvotkin said expanding a yet-untested program would be a mistake. “Adopting this model across DoD before it is even tested in the Navy would be premature and could hurt the ability of firms to compete in the Defense marketplace,” he said.

—  by Robert Brodsky – GovExec.com – August 3, 2010

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