Push to Ensure Contractor Performance Data is Posted in a Timely Manner

This week we have been discussing provisions in the 2012 NDAA (National Defense Authorization Act) that recently passed both Houses of Congress and is expected to be signed by the President. On Monday, we discussed the extension of the compensation cap to all contractor employees and on Tuesday, we discussed the new requirement for DCAA to report on "significant problems, abuses, and deficiencies". Today we are going to look at contractor performance data.

For a long time, there has been concern over the presumption (perhaps factual) that contractor performance data is either not prepared or not entered into databases that the Government uses to make source selection decisions. The 2012 NDAA will require that DoD develop a strategy for ensuring that timely, accurate, and complete information on contractor performance is included in past performance databases used for making source selection decisions.

The strategy required by the NDAA must, at a minimum,

1. establish standards for the timeliness and completeness of part performance submissions,
2. assign responsibility and management accountability for the completeness of past performance submissions for such purposes, and
3. ensure that past performance submissions are consistent with award fee evaluations in cses where such evaluations have been conducted.

The Act directs DoD to amend the FAR (Federal Acquisition Regulations) to require:

1. that affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases
2. that such contractors are afforded up to 14 days to respond
3. that agency evaluations are included in the relevant past performance databases within 14 days after that.

This is a fairly tight timeline and does not afford contractors much time to prepare responses to any "negative" past performance determinations.