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Government Contracts Monitor

Get What You Need: Final FAR Rule Makes Past Performance More Important Than Ever

August 13, 2013

By: Lindsay Simmons

On August 1, 2013, the Federal Acquisition Regulation (FAR) was amended to change the government’s procedures for recording contractor past performance specifically, to provide factors for government-wide standardization of past performance evaluations and to make reporting more consistent and accurate. The final rule requires contracting officials to enter past performance information into the Contractor Performance Assessment Reporting System (CPARS), from which (after a maximum of 14 days) it will be posted on the Past Performance Information Retrieval System (PPIRS), and sets out revised evaluation rating definitions and descriptions.

For years now, federal agencies have been required to evaluate, at least annually, contractor performance for each contract, order, or modification that exceeds the simplified acquisition threshold. But studies found that reports were not prepared or when they were prepared were inconsistent and often not submitted to any central repository.  Under the new rule, that should all change.

The new rule makes clear that past performance reports must be performed and must evaluate a contractor's performance on a wide range of factors – from cost control and technical quality to business relations – using clear, non-technical descriptions. The rating categories include exceptional, very good, satisfactory, marginal and unsatisfactory. Ratings are required to be justified based upon objective facts and significant events. Thus, if a contractor receives an exceptional rating, the report must identify several specific examples of how its performance was of benefit to the government. For a "very good" rating, a report need only identify one example.  Contractors must receive at least a "satisfactory" rating if they complete all of their contract requirements. Reports that include "marginal" and "unsatisfactory" ratings must identify specific performance problems and how such problems adversely impacted the government.

The rule no longer leaves to chance the actual reporting of past performance evaluations. Agencies now are required to assign responsibility for submitting reports.  However, if the agency fails to do so, the responsibility defaults to the contracting officer.  Everyone involved in the contracting process, from technical officers to end users, must be afforded an opportunity to provide input on the contractor's performance.

Then what happens?  After a report is submitted, CPARS automatically notifies the contractor, and the contractor is provided an opportunity to comment – but only for 14 days. This is a critical opportunity for all contractors and one that should never be passed up.  When you receive notice of an evaluation report, make certain to immediately review it and to provide written comments, with specific support, as soon as possible but in within the 14-day window, if you disagree with any of the ratings or examples used in the report.  This is part of your permanent record and something that will be used by other agencies for years to come.  Make certain it’s the best it can be.

A troubling aspect of the proposed rule:  Agency evaluations, including contractor-submitted information, are automatically transmitted to PPIRS no later than 14 days after the contractor is notified that its evaluation is available for comment.  This permits the original agency evaluation, which is subject to change based upon contractor comments, to be posted even before the contractor submits its comments.  It also appears to provide for the initial agency evaluation to be part of the PPIRS record regardless of how quickly and persuasively the contractor responds, rather than awaiting the final agency evaluation based upon contractor input.  Comments on this proposal rule are due on or before October 7, 2013.  We suggest you weigh in with your comments.

 

Lindsay Simmons is the attorney responsible for the content of this article.

© Jackson Kelly 2013

 

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