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  1. Office of Federal Procurement Policy Contractor Performance Information | The White House
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  3. Evaluating the “Past Performance” of Federal Contractors: Legal Requirements and Issues
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Office of Federal Procurement Policy Contractor Performance Information | The White House

Evaluating the "Past Performance" of Federal Contractors: Description This report provides an overview of existing legal requirements pertaining to past performance, including the issues raised by federal contractors' attempts to challenge agency evaluations of their past performance, source selection decisions based, in part, on consideration of past performance information, and responsibility determinations.

Physical Description 25 pages. Who People and organizations associated with either the creation of this report or its content. Author Manuel, Kate M. Previously, the FAR requireed evaluations of contractor performance only "at the time the work under the contract or order is completed," or on an interim basis, in the case of multiyear contracts. However, the FAR was amended in August to require, among other things, that past performance be evaluated "at least annually and at the time the work under a contract or order is completed.

See infra notes 89 to 91 and accompanying text. This amount generally represents the simplified acquisition threshold. It should also be noted that agencies are not prohibited from evaluating contractors' past performance on contracts whose value is below the relevant monetary thresholds, even if the contract does not expressly provide for such evaluations.

When the FAR was initially revised to require evaluation of contractor performance, some contractors and commentators objected to certain of these criteria, most notably the contractor's "commitment to customer satisfaction" and "business-like concern for the customer's interest," on the grounds that the criteria are inherently subjective.

Despite such concerns, however, their implementation does not appear to have generated particular controversy, beyond the controversy generally associated with the issuance of allegedly biased or erroneous performance evaluations. See infra note 39 and accompanying text.

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The contractual performance of the element or sub-element being assessed reflects a serious problem for which the contractor has not yet identified corrective actions. The contractor's proposed actions appear only marginally effective or were not fully implemented. If no other person is designated, the contracting officer is responsible for performance evaluations. Delays of several months in completing evaluations would not necessarily be seen to be impermissible under the FAR.

However, depending upon the circumstances, delays of several years could potentially be seen to raise issues. Some contracts contain language to the effect that the final performance rating is "the unilateral determination of the reviewing official" and not subject to dispute or appeal beyond the agency. However, similar language has been found to be unenforceable when used in other contexts.

See also infra notes 43 to 55 and accompanying text. See also 48 C. Overview and Selected Issues , by Elaine Halchin. See Consolidated Appropriations Act, , P. Final Rule, 75 Federal Register , March 23, Policy guidance from OFPP does, however, encourage agencies to use performance evaluations completed under Subpart See supra note 14 and accompanying text.

United States , 85 Fed. A "bid protest" is a formal, written objection to an agency's solicitation for bids or offers, cancelation of a solicitation, or award or proposed award of a contract. An Overview of Time Frames and Procedures , by [author name scrubbed] and [author name scrubbed]. More recently, GAO has suggested that bid protests are not the proper forum to dispute the substance of performance evaluations required under Subpart United States, 84 Fed.

In addition, the contracting officer making the source selection decision is not necessarily the same person, or even with the same agency, that produced the allegedly biased or erroneous evaluation of the contractor's performance. See infra notes 99 to and accompanying text. Some commentators also suggest that challenges to past performance evaluations raised during bid protests make the procurement process less efficient by disrupting agency operations.

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As sovereign, the United States is immune to suit without its consent. Constitution, federal statutes or regulations, or express or implied contracts with the United States. It also provides the court with "jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10 a 1 of the Contract Disputes Act of , including For example, for the Court of Federal Claims to have jurisdiction over a CDA "claim," the claim must have been made in writing and submitted to the contracting officer for a decision.

Record Steel , 62 Fed. The CDA itself does not define "claim," nor did the contract in question.

The FAR, however, defines a "claim" as "written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a subsequent decision of the Court of Federal Claims distinguished between performance evaluations and PPIRS entries, finding that, while contractors are entitled by the FAR to a "fair and accurate" performance evaluation, they are not similarly entitled to a "properly formatted PPIRS entry" since the relevant regulations and policy guidelines "do not address the manner in which a PPIRS entry is displayed or formatted.

This decision also suggested that final Contractor Performance Assessment Reports CPARs are not final decisions of the contracting officer for purposes of the CDA because they are issued by a reviewing official, who is above the contracting officer, not the contracting officer. However, while only final decisions of the contracting officer are generally disputable, the plaintiff's claim survived because, assuming the reviewing official is seen as issuing the performance evaluation, the contracting officer issues no decision, and the contracting officer is otherwise required by the CDA to issue a decision "within a reasonable time," or the claim is deemed denied.

BLR Group , 84 Fed. See also Aim Constr. This reliance on the "implied According to the board, the initial case involving a past performance evaluation found only that the issuance of a performance evaluation , per se , did not constitute a claim. The board in Colonna's Shipyard also noted that a subsequent case found that the board had jurisdiction when a performance rating claim is based upon a contract's disputed terms. See Sundt Construction, Inc. The contractor here also noted that the government had an implied duty to produce an unbiased and accurate performance evaluation, but the board did not address this issue.

A December 9, , decision in this case had found that the court had jurisdiction over the contractor's challenge to its performance evaluation on the same grounds discussed in Record Steel. Even if the Court could say 'the performance evaluation should be set aside,' but had no power to require any entity to take any action on that conclusion, the declaratory relief would be meaningless. In so finding, the court distinguished prior cases, where it had granted declaratory relief, from the present case by characterizing the prior cases as involving "live disputes" of the "yes" or "no" sort, where "the consequences flowing from [the court's] answer did not require further intervention from a court or board.

United States , 63 Fed. United States , F. In its decision, the court granted Todd Construction the right to amend its complaint, which the court had characterized as "not contain[ing] sufficient factual allegations to suggest entitlement to remand," in light of the recent decisions by the Supreme Court in Bell Atlantic Corp. Twombly and Ashcroft v. Subsequently, in , the court found that revised complaint failed to state a basis on which relief could be granted.

United States, 94 Fed. Defense agencies were first authorized to conduct negotiated procurements in certain circumstances in Armed Services Procurement Act, P. Civilian agencies received similar authorization in This authority was subsequently expanded when Congress enacted the Competition in Contracting Act of However, prior experience can be distinguished from past performance, and this provision was repealed by FASA.

Evaluating the “Past Performance” of Federal Contractors: Legal Requirements and Issues

See infra note ; P. Dep't of Defense, Gen. The requirement was phased in, with procurements with higher values being subject to the requirement sooner than those with lower values. Debunking the Myth of Pandora's Box, 29 Pub. The Fear of Discretion and the Quality of Government Performance 40 quoting a government employee as saying "We deal with written lies," when describing his agency's reliance on contractors' technical proposals when making source selection decisions.

The FAR, however, views past performance information as "one indicator of an offeror's ability to perform the contract successfully. Kelman was the administrator of OFPP during the mids. See infra notes to and accompanying text. Additionally, when the solicitation involves "bundling," agencies' evaluation of past performance must assess the offeror's performance in meeting goals in any subcontracting plans incorporated in prior contracts.

A Legal Overview , by [author name scrubbed]. Although the factors and subfactors considered must relate to the procurement, contractors' ability to challenge agencies' use of allegedly improper factors is limited by the deference that judicial and administrative tribunals give to agencies' selection of evaluation criteria. See also Brican Inc. See also Dorado Services, B Agencies are encouraged to consider past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform "major or critical" aspects of the work, but are not required to do so.

Any such consideration must, however, be consistent with the terms of the solicitation. Int'l LLC, B November 3, finding that the agency had improperly credited the awardee with past experience it had earned through a joint venture because the way in which such experience was credited was inconsistent with the terms of the solicitation. Certain other evaluation factors must be used in specific circumstances.

For example, the extent of proposed subcontracting with small businesses must be an evaluation factor for contracts that involve bundling and offer a significant opportunity for subcontracting. See Guide to Best Practices, supra note 14 , at Agencies were not required to abide by this guidance, however.

It should also be noted that agencies evaluating past performance often rate it using broad descriptors e. Additionally, vendors' past performance is considered only in relation to that of the other vendors who submitted offers, not in the abstract.

Office of Federal Procurement Policy Contractor Performance Information

Thus, a company whose past performance has been less than stellar, but does not result in a nonresponsibility determination or exclusion, could be selected for award if the past performance of the other offerors was equally or more problematic. United States , 43 Fed.

Disagreements between the parties about the final contract performance evaluation are to be reviewed at a level above the contracting officer. United States , 42 Fed. Dalton , F. United States , 46 Fed. Systematic evaluations of past performance under completed contracts cannot be used as source selection information beyond 3 years after the contract was completed. If, for instance, an agency has reports of poor performance that was delivered in calendar year under a support services contract with a five-year term that is finally completed in calendar year , then this poor performance may be considered for source selection purposes at any time through calendar year Ad Hoc Past Performance Evaluations Past performance must be an evaluation factor in any solicitation for competitive proposals: In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency—.

The source selection authority shall determine the relevance of similar past performance information. If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals e. Delta Data holds that agencies must give offerors an opportunity to comment when negative ex parte information is received, i. Notwithstanding this GAO opposition, early regulatory implementation of ad hoc past performance evaluations provided, at FAR Respondents, especially the small business community, expressed concerns that offerors might be excluded from a competition on the basis of incorrect past performance information that they have not had the opportunity to address.

In response to this concern, the final rule provides that, when conducting communications prior to establishing the competitive range, offerors, including small entities, shall be granted the opportunity to explain situations that contributed to an adverse past performance rating to which they have not had a previous opportunity to respond, before such ratings can be the determining factor for exclusion from the competitive range. FAC , 62 Fed. GAO has taken a different approach. In the first such case, Rohmann Services, Inc.

Past Performance Final Archive

In the absence of such a clear basis to question the past performance information, we think that, short of acting in bad faith, the contracting officer reasonably may decide not to ask for clarifications. The contracting officer did not give the offeror an opportunity to clarify or discuss these ex parte past performance references, and the agency downgraded the proposal when rating it, before making an award on initial proposals.

But this was sufficient for GAO, under the broad principle that offerors assume the burden of submitting a proposal adequate for evaluation: On this record, we think that in the first instance, it was incumbent upon USC to comply with the RFP requirement to furnish completed past performance reference questionnaires in its initial proposal before it could credibly argue that it was entitled to communications regarding its performance history. Systematic past performance information must be evaluated. While past performance references submitted with a competitive proposal need not be contacted, Rotech Medical Corp.

Here there is an anomaly—while agencies may not use systematic past performance information for source selection purposes beyond 3 years after contract completion, relevant past performance information submitted by references identified in a competitive proposal, even past performance information or references obtained beyond 3 years after contract completion, may properly be evaluated. Oregon Iron Works, Inc. An agency may not fail to contact an offered reference, or fail to rate ad hoc past performance information, when the offeror is an incumbent under an agency contract comparable to the contract proposed by the solicitation, or the offeror is an incumbent under a comparable contract and this is personally known by one or more of the evaluators.

An agency may not contact some past performance references, while at the same time it ignores other references, these for past performance as an incumbent under a comparable contract. And neither may an agency ignore relevant past performance information that comes to light during the evaluation process, e.