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Quick on the Trigger - Period for Contractors to Comment on Past Performance Evaluations Will Shrink from 30 Days to 14 Days




by:
David S. Gallacher
Sheppard, Mullin, Richter & Hampton LLP - Washington Office

 
August 16, 2013

Previously published on August 14, 2013

Over the last few years, there has been a significant push to consolidate all contractor information into central locations, and also to ensure that all performance-related information is updated and current (allowing the government customers to have access to the latest and greatest information about how a contractor has performed). Two recent rules - one final and the other proposed - are further implementing this grand plan. See 78 Fed. Reg. 46783 (August 1, 2013) and 78 Fed. Reg. 48123 (August 7, 2013). The final rule standardizes and further clarifies the government’s internal administrative obligations with regard to past performance evaluations, but the new proposed rule will shrink from 30 days to 14 days the period of time that a contractor has to comment on a past performance evaluation. Going forward, contractors will need to be quick on the trigger to ensure that they monitor their past performance evaluations and respond in a timely manner.

Proposed Rule Shrinking the Response Time

The proposed rule will update FAR 42.1503. See 78 Fed. Reg. 48123. While the new 14 day rule is, technically speaking, merely “proposed,” there is no doubt that it is going to happen. After all, the 2012 and 2013 National Defense Authorization Acts require the change - “contractors are afforded up to 14 calendar days, from the date of delivery [in the Contractor Performance Assessment Reporting System, CPARS] ... to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases.” See Pub. L. No. 112-81, § 806; Pub. L. No. 112-239, § 853 853. The reason that Congress has mandated this shorter time period is so that government users of the past performance data (mainly source selection officials) can have access more quickly to more accurate and more complete information on how well a contractor is doing on its other government contracts. The proposed rule makes clear that a contractor can still annotate a past performance evaluation after 14 days, but the information will have been posted to the Past Performance Information Retrieval System (PPIRS) in the meantime, with certain adverse actions eventually reported in the Federal Performance and Integrity Information System (FAPIIS). This is important because, while a contractor can annotate a past performance evaluation at any time, it is entirely possible that people within government may have reviewed and relied on an incorrect or incomplete past performance report in PPIRS, prior to the annotations or corrections if they were not submitted within the required 14 days.

Notably, the proposed rule does not ask contractors whether the new 14 day window is a good idea. Good idea or not, Congress has already spoken. Instead, the proposed rule solicits comments on two specific issues:

  1. How the accelerated review period for the past performance reports in CPARS and PPIRS may impact a contractor’s business; and
  2. Whether there are ways to limit any extra burden that this accelerated review period may have on a contractor’s business.

We might suggest a third area for improvement - timing. If a contractor makes comments on a past performance evaluation after the 14 day window has expired, how quickly will the government update the information in CPARS? And how soon thereafter will that updated information be transferred to PPIRS? The proposed changes to FAR 42.1503(f) require that the late submissions be taken into consideration and that the evaluations be updated, but it does not say how quickly this will occur. If it takes the government weeks to update the entries, contractors should be all the more vigilant in ensuring that the 14 day window is not missed.

Comments on the proposed rule are being accepted through October 7, 2013 (under FAR Case 2012-028).

Final Rule Updating Past Performance Criteria

The final rule sets forth general administrative requirements for government personnel regarding the “who/what/when/where/why” relating to past performance evaluations, articulating more standardized evaluation factors and performance ratings, and requiring the entry of this information into CPARS. See 78 Fed. Reg. 46783. Making significant changes to FAR Subpart 42.15, the new rule does not impose affirmative obligations on contractors. Nonetheless, contractors may be interested in reviewing the new rule to ensure that they know and better understand how past performance information is being used and what the criteria are upon which they are being judged.

At a minimum, contractors will be judged based on the following criteria:

  • Technical (quality of product or service)
  • Cost control
  • Schedule/timeliness
  • Management of business relations
  • Small business subcontracting
  • “Other” (such as nonpayment to subcontractors, trafficking violations, tax delinquency, failure to submit required reports, defective pricing, terminations, suspension/debarments, etc.)

The harmonized evaluation ratings system attempts to measure these criteria against objective standards, so that an “Exceptional” rating means that same thing across the government.

The new rule is effective September 3, 2013.

Conclusion

Contractors should expect continued changes to the past performance systems. As more and more people want this kind of information to be available and as technology permits the sharing of this information more readily, contractors should expect continuous updates. There are already plans to roll the CPARS, PPIRS, and FAPIIS system into the new System for Award Management and the fact that Congress continues to scrutinize this issue promises future “reforms.” So contractors should ensure that they remain vigilant with regard to how their past performance is rated so that they may act quickly to correct any mistakes or unfair criticisms.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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