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.

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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.

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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