If you are a federal contractor, you know the importance of past performance reviews on your business. Past performance evaluations are required for any service contract exceeding $150,000, any construction contract exceeding $650,000, and any architect-engineering contract exceeding $30,000. See 48 CFR § 42.1502. The federal government relies on these reviews to award new work, and a negative evaluation could have a detrimental effect on your bottom line. Understanding the evaluation process is, therefore, critical to successful completion of any federal contract.
On July 1, 2014, the federal government implemented new policies and procedures for preparing and submitting past performance reviews. See 48 CFR § 42.1503, 79 Fed. Reg. 31197. These changes modified existing evaluation criteria and significantly altered a contractor’s deadline for challenging performance reviews. The government executed these changes after a Government Accountability Office (“GAO”) report found that past performance evaluations were not being prepared consistently or timely throughout agencies in the federal government. GAO Report 09-374, Better Performance Information Needed to Support Agency Contract Award Decisions (Apr. 23, 2009). Congressional pressure to make the evaluation system more effective resulted in changes introduced through the 2012 and 2013 National Defense Authorization Acts. See Pub. L. 112-81, Pub. L. 112-239.
As a first step to achieving efficiency, the government merged multiple rating programs into a single system. The Architect-Engineer Contract Administration Support System (ACASS) and the Construction Contractor Appraisal Support System (CCASS) are now merged into the Contractor Performance Assessment Reporting System (CPARS). CPARS is available at www.cpars.gov. Previously, CPARS, ACASS, and CCASS contained different evaluation forms, rating elements, and workflow processes. The new CPARS program eliminates inconsistencies and evaluates all contractors on the same factors including: (1) Quality, (2) Schedule, (3) Cost Control, (4) Management, (5) Utilization of Small Business, and (6) Regulatory Compliance. Agencies also are now required to provide a written narrative for each factor. Requiring written justification for each score eliminates scenarios where a contractor receives a low mark without any reason whatsoever. Notably, however, a contractor no longer receives an “Overall” rating for each contract, potentially making the review of past performance more difficult during contract solicitation and bid evaluation.
By merging to a single program, the government hopes to achieve uniform evaluations throughout the federal government. Several agencies have issued guidance on how these new evaluation criteria should be used. See US Army Corps of Engineers, Engineering and Construction Bulletin No. 2014-13, CPARS Transition Guide (May 22, 2014). Contractors are highly encouraged to seek out this guidance and understand how agencies will interpret and implement the new CPARS evaluation criteria.
In addition to changing the evaluation factors, the new regulations revise existing deadlines for contractors to respond to an agency’s draft evaluation. Understanding these changes is critical. Under the old rules, a contractor had 30 days to submit comments, rebutting statements, or additional information to the government in response to a past performance review. Under the new guidelines, the contractor’s response time is cut in half. A contractor is provided only 14 days to respond to the government’s review once the evaluation is submitted in CPARS. See 48 CFR § 42.1503(d). On the 15th day, whether the contractor has responded or not, the evaluation automatically posts to the Past Performance Information Retrieval System (PPIRS). PPIRS is available at www.ppirs.gov. Once on PPIRS, the evaluation is available for viewing by all source selection officials throughout the federal government. The 14-day timeline could, therefore, have significant ramifications for a contractor who receives a negative or unjustified evaluation. It also emphasizes the need for contractors to diligently pursue their right to respond to an agency’s evaluation.
Historically, contractors who disagreed with a government evaluation would request to meet with the Contracting Officer to discuss their scores and provide feedback or justification for their performance. No requirement exists for the government to meet with the contractor. However, if a contractor requests a meeting, the government may accept the request. Any such meeting, though, does not alter the requirement that an evaluation be posted to PPIRS within 14 days. The reason for this policy is to ensure that source selection officials have access to timely and relevant past performance reviews and to avoid delays in reporting performance on a completed federal contract.
Even though a past performance review must be posted within 14 days, several avenues still exist for the contractor to influence the review. First, the contractor may submit comments after the 14-day period expires and the review has been posted to PPIRS. Under the new regulations, the contractor’s late comments must be posted to PPIRS; however, the government’s original report will still be available to all source selection officials. Although authorized, an agency is not required to modify its evaluation based upon a contractor’s comments. Second, a contractor may appeal its review to one level above the Contracting Officer. Again, the appeal does not stop the 14-day reporting period and the original evaluation will be posted on PPIRS.
The changes implemented for the new past performance reviews are significant. Federal contractors should be aware of these requirements and make every effort to understand the government’s expectations. Engaging the contracting officer early, understanding their expectations, asking for a draft evaluation, and seeking timely con-structive feedback are all methods a contractor may use to gauge its performance. Because a negative past performance evaluation could adversely impact future business, government contractors should be aware of the new evaluation criteria, immediately review any evaluation, be prepared to substantively respond to a past performance review, and be cognizant of the new 14-day rule.