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

Are you prepared for a contract cancellation?

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Going back to his campaign pledges, President Trump promised to cut government waste in conjunction with cutting corporate tax rates. As part of this, the president threatened to terminate contracts with the two largest government contractors: Lockheed Martin’s F-35 and Boeing’s Air Force One programs.

A surge in contract terminations could be in the offing as federal agencies align their goals with White House intentions. With this in mind, preparing for the possibility of a contract termination is a defensive strategy that contractors should undertake now. Here are three key steps you should consider immediately:

  1. Plan ahead. Never consider your contract as “termination-proof.”
  2. Fully understand the contract termination process
  3. Learn how to calculate and submit your Request for Equitable Adjustment or settlement proposal.

The possibility of a contract termination should be incorporated into every government contractor’s business continuity plan. Implementing safeguards and procedures designed to mitigate the risk of a termination will limit the impact it has on your organization’s operations. Ask yourself, “Does my organization have procedures in place to deal with cure notices, customer complaints, and quality issues? What about monitoring subcontractors?”

Keep reading this article at: https://washingtontechnology.com/articles/2017/06/09/insights-contractor-termination.aspx

GAO decision illustrates breadth of agency discretion in past performance evaluations

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past-performance-relevanceIn the recent bid protest decision of Halbert Construction Company Inc., the Government Accountability Office (GAO) illustrated the breadth of a procuring agency’s discretion in conducting a past performance evaluation.

Halbert Construction brought the protest after being excluded from the competitive range, arguing primarily that the Navy unreasonably included a non-relevant prior project in the past performance evaluation which led to Halbert Construction’s exclusion.  The GAO sustained the protest based on the well- established principle that offerors must be treated equally because the Navy excluded another offeror’s past performance reference from the evaluation as not relevant under the solicitation’s relevancy criteria but then failed to do the same for the protestor.

More notable than the relatively straight-forward application of the disparate treatment principle was the decision’s discussion of the very broad discretion of agencies in past performance evaluations.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/10/gao-decision-illustrates-breadth-agency-discretion-past-performance-evaluations/

Past performance a big deal for Alliant 2 competitors

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GSA logoSometime in June, $65 billion in federal IT business will be up for grabs under the Alliant 2 governmentwide acquisition contracts. The requests for proposals from the General Services Administration will likely grab the attention of nearly all the major IT contractors looking to boost profits amid a contracting environment ripe with consolidation and budget tightening.

The Alliant 2 Unrestricted, with a ceiling of $50 billion over 10 years, and Alliant 2 Small Business, with its $15 billion ceiling, represent the largest IT contract of the year and perhaps of the next decade. And its objective methodology for selecting winners is likely to make it also among the most competitive.

Building on the approach GSA used in 2013’s One Acquisition Solution for Integrated Services contracts, companies will self-score relevant experience and various certifications in a points-based system set by GSA. (Brian Friel, founder of One Nation Analytics, published a thorough write-up on this process in Nextgov in March).

Keep reading this article at: http://www.nextgov.com/big-data/2016/05/past-performance-big-deal-alliant-ii-competitors/128144/

These are nervous times for contractors

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US DoD logoSpeaking to a room of government contractors recently, Defense Department officials insisted that there is no witch-hunt.

Contrary to industry perception, government overseers are not hammers looking for nails, said Deputy General Counsel for Contractor Responsibility at the Department of the Air Force, Rodney A. Grandon.

Grandon made a case that contractor policing is changing. The emphasis is not on trying to rack up the numbers of suspensions and debarments, he said, but on working preemptively with companies to make sure they have vigorous ethics and compliance programs.

“The focus today is no longer on numbers. The focus today is on contractor responsibility,” he told a federal procurement conference last month in McLean, Virginia, organized by the consulting firm BDO USA.

It is a fact of life that misconduct will occur, so the government is paying more attention to what companies are doing to prevent and respond in such situations, said Grandon. He commended federal contractors that have “invested in very robust advocacy and compliance programs.” The government counts on companies to self-police, he said. “Contractors must have in place procedures and willingness to engage government to take immediate steps when misconduct occurs. Our role is to buy down the risk for our acquisition community so they don’t have to worry that the contractor they’re dealing with has a lack of integrity or past performance problems.”

Keep reading this article at: http://www.nationaldefensemagazine.org/blog/Lists/Posts/Post.aspx?ID=2172

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 

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

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

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