Georgia Tech Procurement Assistance Center

Past performance isn’t always a required evaluation factor, says GAO

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For companies trying to break into the government market for the first time, past performance can seem a bit like the old chicken-and-egg conundrum. Sometimes it can appear like a company can’t win a government contract without a strong record of past performance–but can’t build a past performance record without contracts! And with the government’s continued movement away from lowest-price, technically acceptable evaluations, past performance seems increasingly important.

But that doesn’t mean the government always has to consider past performance as an evaluation factor.  Instead, as a recent GAO bid protest decision confirms, procuring agencies have broad discretion to omit past performance in appropriate cases.

Continue reading at:  SmallGovCon

Changes to the evaluation of small business joint ventures

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As we’ve stressed about the mentor-protégé program, the Small Business Administration’s (SBA) primary concern is that the program benefits the small business protégés.

Past performance is a particularly delicate topic for small businesses, presenting something of a what-came-first-the-chicken-or-the-egg question.  Past performance is not strictly required in order to win prime federal contracts, and its weighting and restrictions can vary greatly by procurement.  For example, FAR 15.305 prohibits an offeror without a record of relevant past performance from being evaluated favorably or unfavorably under past performance.  Nonetheless, many small businesses find it exceedingly difficult to break into the federal market without a record of past performance.

Of concern when SBA initially established the All-Small Mentor-Protégé Program was how past performance would be treated for small business joint ventures authorized under 13 C.F.R. § 125.9.  SBA initially required procuring agencies to consider not only the past performance and experience of the joint venture but also of the joint venture members.  In the recent rulemaking, SBA broadened the regulation to provide for contracting agencies to consider not only past performance and experience but also the capabilities, of the joint venture members.

Continue reading at:  Crowell & Moring

SBA final rule ensures small businesses can utilize teaming arrangements and subcontractor experience

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Late last year, the U.S. Small Business Administration (SBA) issued a lengthy final rule that made changes to various SBA regulations.  While the SBA highlighted its changes to the Mentor-Protégé program, the rule will have wide-ranging impacts on small business contracting, including the treatment of a small business offeror’s capabilities, past performance, and experience.

Continue reading at:  Federal Construction Contracting Blog

GAO: Agency requirement that past performance occur at specific contracting tier found unduly restrictive

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Procuring agencies have wide latitude in developing requirements for their solicitations.  When provisions are challenged, the U.S. Government Accountability Office (“GAO”) merely evaluates whether the agency’s justification for the requirement at issue is rational and can withstand logical scrutiny.  However, there are limits to the agency’s discretion.  Agencies may not include requirements in solicitations that are unduly restrictive.  Specifically, 10 U.S.C. § 2305(a)(1)(B)(ii) provides that agencies may include restrictive provisions “only to the extent necessary to satisfy the need of the agency or as authorized by law.”

A recent example of a challenge based upon that limitation is AES UXO, LLC, B419150, Dec. 7, 2020, in which an offeror challenged a solicitation’s relevant experience and past performance evaluation criteria.  The solicitation at issue sought proposals for unexploded ordnance clearing services.  The solicitation contained a provision that, as written, required that responding offerors must demonstrate previous experience at the prime contractor level or as a member of a joint venture.  The solicitation precluded offerors from meeting the relevant experience and past performance requirements with work performed at the subcontractor level.

Continue reading at:  Martindale

Don’t rely on a procuring agency to track down past performance questionnaires

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Given how much emphasis federal procurement law properly places on fairness, it can be easy to assume that government buyers must do everything necessary to ensure a fair procurement.  But that’s not always the case.  For example, as the recent Government Accountability Office (GAO) decision in Yulista Tactical Services LLC, B-417317.3; B-417317.5; B-417317.6 (January 15, 2020) reminds us, purchasing agencies need only take reasonable steps to obtain complete past performance information about an offeror.  If its reasonable efforts are not successful, the agency can still proceed with the procurement and make a valid award decision based on the information it has.

Continue reading at:  Government Contracting Matters

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

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

Preparing for contract performance and guarding against problems

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Congratulations!  After a hard bidding process, your company has earned an award.  But though this award process might’ve been long and tough, potential issues are still ahead.

We often hear stories of soured relationships with the government during contract performance.  Adverse performance issues can come at a hefty cost—in terms of money, time, and reputation.

Here are some suggestions to help guard against performance disputes with the government.

Continue reading at:  SmallGovCon Blog

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

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