2019 NDAA - Past Performance Evaluations for Subcontractors and Joint Venture Partners

Last Tuesday, the Senate passed its version of the Fiscal Year 2019 NDAA (National Defense Authorization Act). Its called the John S. McCain National Defense Authorization Act for Fiscal Year 2019. Now its on to negotiations with members of the House of Representatives to create a compromise bill to send to the President.

Title VIII is the section we are most interested in as it covers "Acquisition Policy, Acquisition Management, and Related Matters. Over the past couple of months, we've discussed various Title VIII provisions included in both the House and Senate versions of the 2019 NDAA. There's no certainty that the two bodies will reach consensus on any of these provisions but there is a strong likelihood that most of them will be preserved - perhaps watered down a bit - but preserved. Many times some of the more controversial provisions end up as a requirement to do more study and write a report. That's the situation with contract disputes. The House wants to limit bid protests while the Senate wants to study whether that is necessary.

Section 816 of the Senate NDAA tries to beef up the availability of past performance evaluations of contractors and subcontractors. It requires FAR changes to ensure that the best information regarding past performance is available when awarding DoD contracts. Specifically it will require performance evaluations, as part of a government-wide evaluation reporting tool, for first-tier subcontractors performing a portion of the contract valued at not less than 20 percent of the value of the prime contract. It will also require past performance evaluations of individual joint venture partners.

The Senate is concerned that some less than satisfactory companies are getting Government work as subcontractors or as members of a joint venture by hiding in the shadows of never having their past performance evaluated or passed up to the people awarding Government contracts.

Prime Contractors Called Upon to Release Subcontractor Past Performance Ratings

Past performance information is one indicator of an offeror's ability to successfully perform the contract and is often considered by agencies when making contract awards. While there is a mechanism to log and retrieve past performance information for prime contractors (e.g. Past Performance Information Retrieval System (PPIRS)), there is no comparable system to track past performance for information for subcontractors. That is about to change.

The SBA (Small Business Administration) is initiating a pilot program to establish past performance ratings for small business subcontractors. Under this program, a small business concern without a past performance rating as a prime contractor, may request a past performance rating if it is a first-tier subcontractor under a covered Government contract with a contractually required subcontracting plan (see FAR 19.702(a)).

Here's how it will work.

1. The small business concern submits a request to SBA for a past performance rating within 270 days after completing the work for which a past performance rating is sought. The application will include the subcontractor's "suggested ration". We can't imagine that any subcontractor would suggest a rating of anything less than "Exceptional".
2. The SBA will forward the request to the prime contractor and the contracting agency's Office of Small Business Utilization (OSDBU).
3. The prime contractor and the OSDBU will work together to agree on a rating and then post it into the Government's CPARS (Contractor Performance Assessment Reporting System).

The pilot program includes procedures to follow if there is disagreement at any level over the final rating.

This will be additional work for Prime Contractors who will now be called upon to make past performance information on their first-tier subcontractors readily available to the Government. Certainly, most prime contractors have information relative to subcontractor past performance in their records however its one thing to have the information available for internal use and quite another to make that information available to the Government. We expect that ratings for public consumption will be a lot less candid and informative than ratings used for internal purposes.

You can read more about SBA's pilot program here.

DoD Fails to Issue Adequate or Timely Appraisals of Contractor Performance

The Federal Acquisition Regulation (FAR) requires Government officials to evaluate contractor performance in the Contractor Performance Assessment Reporting System (CPARS) (see FAR Part 42.15). CPARS is the Government-wide reporting tool for past performance on contracts. The primary purpose of CPARS is to ensure that current, complete, and accurate information on contractor performance is available for use in procurement source selections. Government officials evaluate contractors in CPARS by preparing a PAR (Performance Assessment Report). PARs are to be prepared at least annually and at the end of the contract.

Most Government contractors are familiar with the PAR process and everyone strives for good reports. However, as many contractors have experienced, the Government often neglects to prepare PARs. That could be a good thing in some cases if you're the contractor and your performance has been less than stellar. Conversely, if your performance has been outstanding and the Government fails to put that in a report, that performance will not be recognized the next time you submit a bid and the contracting officer queries his past performance database to see how well you performed in the past.

The Department of Defense Office of Inspector General (DoD-IG) was concerned about contracting officer compliance with FAR 42.15 so they initiated an audit to see if there truly was a systematic problem. The results were not encouraging. The IG reported, in their typical understated tone, that "Defense organization officials did not consistently comply with requirements for assessing contractor performance". Translation? There was a high failure rate. Fourty-nine of 53 PARs reviewed did not include sufficient written narrative to justify the ratings given.

The DoD-IG cited several conditions that led to the failures:

1. organization-specific procedures did not have clear guidance for preparing PARs in a timely manner or did not address timeliness
2. assessors did not understand PAR rating definitions or evaluation factors
3. assessors did not take current training or properly implement training and
4. organization-specific procedures did not require reviews of PARs to ensure compliance with the FAR.

Because of the noted deficiencies, the DoD-IG concluded that Federal source selection officials did not have access to timely, accurate, and complete past performance assessment information needed to make informed decisions related to contract awards.

You can read the entire DoD-IG report here.

Past Performance Ratings - Government is Improving its Compliance Rate

Performance information (adjectival ratings and supporting narratives) about contractors' work on previously awarded contracts is used by the Government for future source selection purposes. The "Past Performance Assessments" cover such  aspects as

• conforming to requirements and to standards of good workmanship
• forecasting or controlling costs
• adherence to schedules, including the administrative aspects of performance
• reasonable and cooperative behavior and commitment to customer satisfaction
• reporting into databases and reporting requirements in the solicitation provisions and clauses referenced
• integrity and business ethics, and
• business-like concern for the interest of the customer.

It is federal procurement policy for the contracting officer to prepare past performance appraisals at least annually and also, at the end of the contract (see FAR 42.1502). These assessments are posted to CPARS (Contractor Performance Assessment Reporting System) and are then available for just about anyone working in Government procurement to lookup and review.

For contractors, it is important that past performance data be prepared timely and made available for contractor selection and award purposes - especially for ratings of "exceptional" or "very good". Exceptional means that performance meets contractual requirements and exceeds many to the Government's benefit. Its good to go the extra mile and get noticed. The Government relies on this information to make best value source selection decisions.

The Government monitors contracting officer compliance with the Past Performance reporting requirements. The Department of Defense recently published departmental compliance statistics that show a compliance rate of 83 percent for the fourth quarter of Fiscal Year 2015 against a goal of 100 percent. Although slightly improving from the previous quarter, there is still need for improvement.

Contractors usually benefit by having past performance ratings on file. Contractors that don't receive them, should ask their contracting officers to prepare them.

You can read DoD's latest summary here.

Contractor Performance Assessment Reporting (CPARS)

In the process of selecting contractors, the FAR (Federal Acquisition Regulations) require agencies to consider past performance as a factor in competitive procurements exceeding the simplified acquisition threshold (currently $150 thousand). That makes sense. Why would the Government want to award contracts to companies that don't perform? Contracting officers have more work than they can do right now - why add to the burden with contracting issues that just chew up time. Of course, to be in a position to "consider" past performance, contracting officers need relevant past performance data. FAR provides for that by requiring agencies to evaluate contractor performance at least yearly and also, at the time the work is completed. That requirement is well and good but years ago, the GAO found that very few agencies were bothering to write up past performance reports and even those few that were written up, were dropped off in some dead letter office never to be seen again.

In 2004, the DoD developed and began using CPARS (Contractor Performance Assessment Reporting System) and by 2010, all Government agencies were tied into the system. In theory, a contracting officer from NASA could review past performance data from a prospective contractor who worked for DoD or Energy, or any other agency. The centralized database was a good idea, however several GAO (Government Accountability Office) reviews determined that there was still a low compliance rate in writing up past performance information and therefore, incomplete past performance information loaded up into the CPARS.

The 2013 NDAA (National Defense Authorization Act) included a requirement to develop a strategy to ensure that evaluations in past performance databases. In response to this requirement, the Government established some strategies to improve compliance including (i) increase emphasis through memos to agency officials, (ii) self-assessing compliance, (iii) more training, (iv) setting performance targets, and (v) developing content guidelines. The last strategy was considered high risk because with the increased emphasis on past performance evaluations and the push on contracting officers to complete them, the quality of those evaluations suffered considerably. Some evaluations were simply check boxes where contractors were rated highly and no narrative accompanied the score. Some contracting officers simply doled out the highest score possible because (i) they either had no information to the contrary or (ii) they didn't want to deal with the inevitable contractor disagreement process that would ensue for any evaluation less than perfect.

Last week, the GAO issued a report that assessed agency compliance with the CPARS reporting requirement. Notably, the study did not assess the completeness, timeliness, or accuracy of those evaluations - only whether the evaluations were uploaded into CPARS. Overall, Government agencies are making improvements in complying with the past performance requirements. Overall, the compliance rate for the year ended April 2014 was 49 percent. Although not great, it represents a significant increase over the 32 percent from the previous year. DoD is doing the best at 83 percent compliance. GSA had the lowest compliance rate at 13 percent.

You can read the entire GAO report here.

Past Performance Reporting - Contractor Rebuttal Period to be Shortened

The FAR Councils are proposing to amend FAR to implement a provision of the 2013 NDAA (National Defense Authorization Act). The Act requires revisions to the acquisition regulations on past performance evaluations so that contractors are provided up to 14 calendar days from the date of delivery of past performance evaluations to submit comments, rebuttals, or additional information pertaining to past performance, for inclusion in the Government's database. The Act also requires that agency evaluations of contractor performance, including any information submitted by contractors, be included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information to the contractor.

This is a big change from current regulations. Under current regulations, contractors have a minimum of 30 days to submit comments, rebuttals, or additional information pertaining to past performance. Contractors frequently request and are granted extensions to this time period. Under the new regulations, the minimum of 30 days is reduced to a maximum of 14 days.

Under the current rules, many past performance evaluations never make it to the database or are so late that they're not considered current. To be sure, there has been a low compliance rate among contracting officers in preparing and uploading these evaluations. Compliance is improving but far from 100 percent. Another issue has been the ability of contractors, with poor evaluations, to drag things out for an extended period. So for example, a contracting officer might send a poor evaluation to a contractor for comment. The contractor asks for and receives extensions beyond 30 days, sometimes multiple extensions. The contracting officer, before posting the evaluation, must "adjudicate" any differences and adequately respond to contractor comments. This can take a long time, depending upon the response. Once there's a nice tidy package, the evaluation gets posted.

Under the revised regulation, the past performance evaluation goes live in 14 days or less. Contractors can send in their comments, complaints, rebuttals, or additional information at any time. However, the initial evaluation is still available for all to see. The system will also allow contracting officers to modify their initial evaluations, but how likely is that?

Past performance information is valuable for source selection officials. The idea behind this new regulation is to get such information to those officials while it is still current and useful. The Government's stated objective here is to enable current information to be shared quickly throughout the Government and ultimately ensure the Government does business with high performing contractors.

Past Performance - Again

When awarding contracts, FAR (Federal Acquisition Regulations) require agencies to consider firms' past performance records to help ensure that taxpayer dollars go to capable contractors. Past performance is not to be confused with prior experience. Prior experience refers to whether the firms have done similar work before, and past performance describes how well they have done that work.

While agencies have long been required to prepare a performance report at the conclusion of each contract, compliance with the requirement has always been problematical. Even when, in the relatively few cases where performance reviews were prepared, there was no central repository for these reports, making it impractical for contracting officers to consult past performance when contemplating the awards of new contracts.

The 2012 NDAA (National Defense Authorization Act) attempted to bring some structure to the program. It required DoD to 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, including standards for the timeliness and completeness of submissions and assigning responsibility and management accountability for the completeness of submissions.

For contractors, its important that past performance data be prepared timely and made available for contractor selection and award purposes - especially for ratings of "exceptional" or "very good". (Exceptional means that performance meets contractual requirements and exceeds many to the Government's benefit).

So, how is the Government doing? What is the Government's report card? Not too good, unfortunately. DoD just released its second quarterly report on past performance reporting. It didn't even hit 50 percent. For the three months ended March 30th, 2012, DoD prepared past performance reports for only 47 percent of completed contracts. This is actually worse than the previous three month period when the compliance rate was 59 percent.

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.

Defense Contract Audit Agency's Annual Report

Yesterday we discussed a provision included in the 2012 NDAA (National Defense Authorization Act) that extended the compensation cap from the top five senior executives to all contractor employees. There is another provision that will be of interest to Government contractors - one that requires DCAA to prepare an annual report of the activities of the Agency during the previous fiscal year.

The annual report must include, at a minimum,

• a description of significant problems, abuses, and deficiencies encountered during the conduct of contractor audits:
• statistical tables showing the total number of audit reports completed and pending, the priority given to each type of audit, the length of time taken for each type of audit, the total dollar value of questioned costs, and an assessment of the number and types of audits pending for a period longer than allowed pursuant to Agency guidance.
• a summary of any recommendations of actions or resources needed to improve the audit process
• any other matters considered appropriate.

The report must be submitted within six months after the close of the fiscal year and must be made public within 60 days after that.

Its is the first bullet that should concern contractors because it will require the exercise of judgment in determining "significance" and some definitions for "problems", "abuses", and "deficiencies". Although we don't expect that contractors will be specifically named in the report, the names of miscreants tend to somehow become public anyway. It is also more likely than not that this information will be included in the Government's past performance databases for source selection decisions.

Evaluation Criteria used for Awarding Government Contracts

When awarding contracts, FAR (Federal Acquisition Regulations) require agencies to consider firms' past performance records to help ensure that taxpayer dollars go to capable contractors. The FAR also provides agencies with broad discretion in deciding how they will consider firms' prior experience. Prior experience refers to whether the firms have done similar work before, and past performance describes how well they have done that work. As firms without prior federal contracting experience seek to gain entry into the federal marketplace, some potential contractors, especially small firms with limited prior experience, consider these factors to be impediments to entering the federal marketplace.

Agencies consider prior experience and past performance during three key phases in the award of contracts:

1. preparing solicitations
2. evaluating proposals
3. making responsibility determinations as to whether firms have the ability and capacity to successfully perform.

Agencies have broad discretion under FAR in deciding the acquisition method, evaluation factors and their relative weights, as well as what prior experience and past performance they will consider relevant.

The GAO (Government Accountability Office) recently published the results of a study they conducted to determine (i) how agencies consider prior experience and past performance in awarding contracts and (ii) the resources available to assist firms in gaining entry to the federal marketplace. The study focused on construction contracts but the findings would also apply more broadly to all federal acquisition.

The GAO study found that the consideration of prior experience and past performance varied by agency. In general, these factors were considered to a greater degree in procurements in which agencies weighed price and nonprice selection factors and to a lesser degree in procurements in which price was the determining selection factor. No surprises there.

The consideration of prior experience and past performance is not limited to work performed under prior contracts with the government. Instead, agencies are to consider work performed on all contracts: federal, state, local, and private sector. GAO did not identify any instances in which an agency limited its evaluation of offerors' experience or past performance to only work performed on prior federal government contracts. The GAO study found that in almost all procurements, contracts were awarded to the offerors that received the highest rating for nonprice factors, such as prior experience or past performance.

The GAO study concluded that consideration of prior experience or past performance is not an impediment to winning government contracts as prospective contractors generally cite their prior work. However, the GAO noted that small firms seeking to win federal contracts face challenges in building up relevant work experience, financial resources, and bonding capacity to compete for large contracts.

Finally, the GAO study listed various resources that are available from federal agencies to help firms without relevant experience or past performance gain entry to the federal marketplace, including outreach and education, subcontracting opportunities, mentor-protege programs, and SBA programs specifically designed to assist small businesses.

The entire GAO report is available on-line. Click here.

Past Performance Evaluations

The FAR Councils have issued a correction to the proposed rule they issued back in June of this year, concerning the procedures that the Government must follow in documenting contractor performance.

As a result of recent congressional hearings on the matter, it became evident that the Government did not do a very good job at documenting contractor performance. In many cases, performance was not documented at all. In others, it was not in a useful format or didn’t contain sufficient relevant data. In an effort to improve upon the process, the FAR Councils issued proposed rules assigning responsibility and setting forth standards for the information to be included.

Under the draft rules, the first thing each Governmental agency must do is to establish procedures for performing past performance evaluations. Generally, these procedures must somehow solicit input from technical office, the contracting officer, and where applicable, the end user.

Secondly, the procedures must identify and assign roles and responsibilities to those individuals responsible for preparing both interim (if the contract is multi-year) and final appraisals. If the Agency does not identify specific individuals, the responsibility defaults to the contracting officer.

Thirdly, the person(s) responsible for the evaluations must obtain information from the program office, the audit office, the end user of the product or service, and anyone else they can think of (as appropriate).

Content of Report

The report must reflect how the contractor performed. The report should include clear relevant information that accurately depicts the contractor's performance, and be based on objective facts supported by program and contract performance data. The evaluations should be tailored to the contract type, size, content, and complexity of the contractual requirements.

Evaluation factors for each assessment shall include, at a minimum, the following five elements:

1. Technical or Quality.
2. Cost Control (as applicable).
3. Schedule/Timeliness.
4. Management or Business Relations.
5. Small Business Subcontracting (as applicable).

Each of these five evaluation factors are given ratings on a scale of one to five (exceptional, very good, satisfactory, marginal, and unsatisfactory).

Each evaluation factor, as listed in paragraph of this section, shall be rated in accordance with a five scale rating system (e.g., exceptional, very good, satisfactory, marginal, and unsatisfactory). For contracts containing incentive fee provisions, the incentive-fee evaluation must be included. The same goes for award fee information.

Agency evaluations (both negative and positive) are to be provided to the contractor as soon as practicable after completion of the evaluation. Contractors get at least 30 days to submit comments, rebutting statements, or additional information. Any disagreements are considered by a person at a level above the contracting officer however, the ultimate conclusion on the performance evaluation is a decision of the contracting agency.

Completed evaluations are not be released to other than Government personnel and the contractor whose performance is being evaluated during the period the information may be used to provide source selection information. Disclosure of such information could cause harm both to the commercial interest of the Government and to the competitive position of the contractor being evaluated as well as impede the efficiency of Government operations.

Performance information stays in the Government database for three years (or six years for construction and architect-engineer contracts).

Standardizing Past Performance Ratings

The FAR Councils have published a proposed rule that will provide Government-wide standardized past performance revaluation factors and performance ratings and to require all past performance information be entered into a centralized database (CPARS - Contractor Performance Assessment Reporting System). We've written in the past about past performance ratings and the various rating factors. Some agencies have been serious about them while others, not so much. Under the proposed rule, all federal agencies will standardize under common rating factors and their compliance with these requirements will be assessed on an annual basis. The government is getting serious about keeping the "bad guys" out of the contracting business.

Inputs into past performance ratings come from the technical office, the contracting office, and where appropriate, the end users of the product or service. Evaluations must reflect how the contractor performed. The report must include clear relevant information that accurately depicts the contractor's performance, and be based on objective facts supported by program and contract performance data. The evaluations should be tailored to the contract type, size, content, and complexity of contractual requirements.

Evaluation factors for each assessment must include, at a minimum, the following:

• Technical or quality
• Cost control
• Schedule/timeliness
• Management or business relations
• Small business subcontracting

Each of these factors must be rated on a scale of one to five; exceptional, very good, satisfactory, marginal, and unsatisfactory. Once entered into the system, it stays for three years and is available for agencies to utilize.

Comments from interested parties must be received by the FAR Council by August 29, 2011 to be considered in the final rule.

Contractor Past Performance Information - Improvements Needed

Today we conclude our short series on past performance assessments. In theory, the Government prepares past performance assessments on completed contracts. These assessments are crucial to the integrity of the past performance system. Contracting officers and source selection officials rely on current information on contractors' performance when determining responsibility and deciding to award new contracts. The quality of these assessments is also important in providing useful and meaningful information to source selection officials.

Last January, the Office of Federal Procurement Policy (OFPP) issued a report that was highly critical of the compliance rate (number of reports submitted versus the number of reports that should have been submitted) and also the quality of the reports submitted. To assess quality, OFPP evaluated 700 past performance reports from ten agencies to determine how well the four required rating factors were addressed. These four factors include;

• Quality of the product or service,
• Ability to control cost
• Ability to meet schedule
• Quality of business relations (e.g. customer satisfaction)

OFPP found that the reports generally lacked sufficient information to support the ratings. For example, most assessments did not include details about how the contractor exceeded expectations or corrected poor performance. Additionally, many of the assessments did not include ratings for one or more of the four performance areas. For one agency, the adequacy rate was only six percent. The best agency achieved only a 63 percent adequacy rate.

The OFPP report has already had an impact. DoD for example is strengthening its guidance and management controls to improve the collection of useful and timely past performance information. It is also increasing oversight to monitor both compliance and quality.

Now that the Government is beginning to emphasize compliance, completeness, and quality, significantly more contractor performance information is going to be crafted and dumped into a government database. More data means a higher likelihood that incorrect information (and potentially damaging information) will become part of the official source selection information. To minimize the likelihood that incorrect or incomplete data will affect your contracting future, we offer the following guidance:

• Always check any CPAR evaluation to ensure that it is a “proper and just” rating and that it reflects your actual performance.
• If you believe the rating is inaccurate, object in writing to the contracting officer and specify the areas that you believe are inaccurate and what the ratings should be.
• If you are not satisfied with the action taken by the contracting officer, always appeal to the proper authorities above the contracting officer. 

Remember that one inaccurate bad rating can jeopardize your entire contracting future.

 

 

Contractor Past Performance Information - Part II

In yesterday's posting, we discussed contract performance information that the Government collects and makes available for contracting officers when "past performance" is one of the award criteria for prospective contracts. The Government is becoming very efficient at collecting this data. All agencies are now required to post this information into a centralized web-based system (CPARS, or Contractor Performance Assessment Reporting System) which allows cross-Agency access to performance information. The system provides for a narrative assessment of past performance and this narrative assessment is considered the most critical aspect of the assessment. The DoD guide for collecting past performance information states the following:

Supporting narrative rationales for all performance ratings assigned are mandatory in DoD. The narratives are critical to any PPI assessment and necessary to establish that the ratings are credible and justifiable. These rationales need not be lengthy. But if there were performance successes or problems, they should be documented. Include a description of the problems or successes experienced; an assessment of whether the problems were caused by the contractor, the Government, or other factors; and how well the contractor worked with the Government to resolve the problems (including problems with subcontractors or “partners” in joint venture or teaming arrangements). The narrative rationale is also useful in future acquisitions; it helps assessing officials to establish the relevancy of the work covered to the instant requirement.

It is critical that contractors take the time to review and comment on the Government's "view" of their past performance. Even if the information doesn't sound too bad, it could be injurious to future success if the competition sounds less bad. For example, if a contractor's past performance is rated "satisfactory" (met all contract terms and conditions) but the competition is rated "exceptional", the competition will be rated higher in this area and that might be all it takes to differentiate the successful offeror from the rest of the pack. Contractors should be especially sensitive of situations where there were mitigating circumstances or where the Government might have contributed to a particular situation.

There are five performance ratings. Do not settle for anything less than "exceptional".

1. Exceptional - Performance meets contractual requirements and exceeds many to the Government's benefit. The contractual performance of the element or sub-element being assessed was accomplished with few minor problems for which corrective actions taken by the contractor were highly effective.
2. Very Good - Performance meets contractual requirements and exceeds some to the Government's benefit. The contractual performance of the element or sub-element being assessed was accomplished with some minor problems for which corrective actions taken by the contractor were effective.
3. Satisfactory - Performance meets contractual requirements.The contractual performance of the element or sub-element contains some minor problems for which corrective actions taken by the contractor appear or were satisfactory.
4. Marginal - Performance does not meet some contractual requirements. 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.
5. Unsatisfactory - Performance does not meet most contractual requirements and recovery is not likely in a timely manner. The contractual performance of the element or sub-element contains serious problem(s) for which the contractor's corrective actions appear or were ineffective.

Contractor Past Performance Information

Last week, we discussed the impending public roll-out of FAPIIS (Federal Awardee Performance and Integrity Information System). Any data posted to this database after April 15th will become publicly accessible except for "past performance" information. Today we will look at the Government's policies and procedures relative to contractor performance information, most of which can be found in FAR 422.15.

Past performance information is used by the Government for future source selection purposes and, as the name implies, is documentation of a contractor's actions under previously awarded contracts. In includes, for example, the contractor's record of conforming to contract requirements and to standards of good workmanship, the contractor's record of forecasting and controlling costs; the contractor's adherence to contract schedules, including the administrative aspects of performance, the contractor's history of reasonable and cooperative behavior and commitment to customer satisfaction; and generally, the contractor's business-like concern for the interest of the customer (i.e. the Government).

Agencies are required to prepare evaluations of contractor performance for each contract that exceeds the simplified acquisition threshold (currently $150 thousand) at the time that work under the contract is completed. There are a few minor exceptions. For larger contracts, Government agencies are encouraged to prepare interim evaluations as well.

The content of past performance information relies on input from technical, contracting, and end users of the product or service. Although there is not a specific requirement to have contract auditors contribute to the assessment, audit reports (especially negative audit reports) have a way of becoming part of the assessment. Agency assessments must be provided to the contractor as soon as practicable after completion of the evaluation. Contractors have at least 30 days to review and submit comments, rebutting statements, or additional information. Disputes are adjudicated at a level above the contracting officer however the ultimate conclusion on the performance evaluation is a decision of the contracting agency. All agencies are required to retain the initial evaluation, contractor response and review comments as part of the evaluation.

Evaluations are used to support future award decisions and are considered "source selection" information. That means that this data is not released to other than Government personnel and the contractor whose performance is being evaluated. Disclosure of such information could cause harm to both the commercial interest of the Government and to the competit5ive position of the contractor being evaluated as well as impede the efficiency of Government operations.

Past performance information is retained for three years after completion of contract performance.