Contractor Past Performance and Its Impact on Success

1. This session is sponsored by the Federal Acquisition Institute The primary organization providing knowledge and support to the federal civilian acquisition workforce. For more information about FAI, please visit our website at www.fai.gov

2. Contractor Past Performance Information And How It Contributes To Your Success Jan Wisor Director Acquisition Management & Support Division Office of Procurement Operations, DHS GSA Training Conference and Expo 2010

3. AGENDA • History • Terminology • Why Do We Collect and Report Past Performance Information? • Regulatory Requirements • Responsible Parties • Common Problems • Systems in Use • CPARS • Best Practices • Questions & Answers • References

4. TERMINOLOGY • CPARS – Contractor Performance Assessment Reporting System • COTR – Contracting Officer Technical Representative • DHS OPO – Department of Homeland Security/Office of Procurement Operations • PPI – Past Performance Information • PPIRS (rhymes with jeepers) Past Performance Information Retrieval System

5. HISTORY • FASA – 1994 • Required OFPP to establish standards for evaluating PP: cost, schedule, compliance and other relevant performance factors • All federal departments and agencies required to initiate procedures to record PPI and use PPI in source selection • Ensure offerors are afforded opportunity to submit relevant information on PP. • Established period PPI would be maintained

6. HISTORY • FASA – 1994 (cont’d) • Neutral - If no past performance, offeror cannot be evaluated favorably or unfavorably for the factor • FARA - Renamed Clinger-Cohen Act of 1996 • Provides guidance to ensure a fair and open competitive process •   FARA gives contracting officers more discretion when making competitive range determinations • Permits the use of Simplified Acquisition Procedures in the acquisition of commercial items up to $5 M.

7. HISTORY 2008 DoD IG Report “Contractor Past Performance Information" (No. D-2008-057 • Examined CPARS • 39 % of systems contracts registered more than 1 year late • 68% had past performance assessments reports that were overdue • 82 % of past performance reports were deficient • Contracting Offices lacked PPI to make informed decisions in source selection

8. HISTORY 2009 GAO Report of Federal Agencies Use of Past Performance • Reviews completed 2006, 2007 and found little progress made in collection and use of PPI • Better performance data needed to support agency decisions • Past Performance assessments occurred less than 1/3 of contracts • Agencies considered past performance information in evaluating contractors for each of the 62 solicitations reviewed

9. HISTORY • OFPP Memo July 2009 - Improving the Use of Contractor Performance Information • establish internal procedures for collecting and reporting past performance information to PPIRS • identify agency officials responsible for preparing interim and final performance evaluations; and • consider the achievement of small business goals in performance evaluations when the contract includes a Small Business Subcontracting Plan. • Beginning February 1, 2010, OFPP will conduct regular compliance assessments and quality reviews

10. WHY DO WE COLLECT & REPORT PPI? • One of the Guiding Principles of the FAR: “(Use) contractors who have a successful track record of past performance...” • Continuing OMB and GAO interest in past performance data collection and reporting • We want to motivate improved performance • Promotes robust competitive environment • Promotes transparency and collaboration

11. REGULATORY REQUIREMENTS • FAR 8.405-1 and -2 – Evaluation of past performance when ordering under Federal Supply Schedules • FAR 9.105-1 – The contracting officer shall consider relevant past performance information when making a determination of responsibility • Past Performance Information Retrieval System (PPIRS) • Excluded Parties List System (EPLS) • Records and experience data • Questionnaire replies • Preaward survey reports • Other sources: Government agencies; business and trade associations

12. REGULATORY REQUIREMENTS • FAR 12.206 – Use of past performance for commercial items • FAR 13.106-1 and -2 – Contracting officer may use past performance as a basis for award under simplified acquisition procedures • FAR 15.304 and 15.305 – Past performance shall be evaluated in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold • FAR 16.505 – Past performance should be considered when placing orders under multiple award contracts

13. REGULATORY REQUIREMENTS • FAR Subpart 42.15 – Contractor Performance Information • Policies and responsibilities for recording and maintaining contractor performance information • Addresses contractor’s record in conforming to contract requirements, controlling costs, adhering to schedules, exhibiting reasonable and cooperative behavior, committing to customer satisfaction, and demonstrating integrity and ethical behavior. • FAR 42.1502 – Evaluate contractor performance for each award over the simplified acquisition threshold

14. RESPONSIBLE PARTIES • The contracting officer and the program office representative (usually COTR) are jointly responsible for assessing contractor performance • The individual responsible for preparing each assessment must consider inputs from the program manager, end user, Contracting Officer, and other parties affected by the item or service • Contractor is motivated to provide best efforts because of power of past performance in source selection, ensures timely and accurate assessment

15. COMMON PROBLEMS • Eligible contracts are not registered • Performance reports are not entered in a timely manner • Failure to conduct required interim assessments • Narratives lack sufficient detail to demonstrate that ratings are credible and justified • Narratives provide misleading comments – do not support ratings Incomplete and missing performance reports negatively impact the source selection process!

16. Contractor Concerns • Right of contractor to request review by one level above if contractor does not agree with assessment • Two recent U.S. Court of Federal Claims cases* • Jurisdiction to hear contractor claims challenging improper past performance assessments • Ensure accurate evaluations are recorded timely in the database *National Defense Magazine, March 2009

17. SYSTEMS IN USE • Contractor Performance Assessment Reporting System (CPS) (https://www.cpars.csd.disa.mil). Not to be used for Classified and Special Access Programs. • Past Performance Information Retrieval System (PPIRS) http://www.ppirs.gov. The “central warehouse” for receipt of performance assessment reports from Federal performance evaluation collection systems. CPARS “feeds” PPIRS. COs shall not use past performance information that is more than three years old (six for construction and architect-engineer contracts). • Architect-Engineer Contract Administration Support System (ACASS) • Construction Contractor Appraisal Support System (CCASS)

18. SYSTEMS IN USE • Contractor Performance System (CPS) https://cps.nih.gov • Multiple Agency, Shared File Subscription System: Designed, developed, and implemented by the NIH Center for Information Technology (CIT) • NASA Past Performance Data Base (PPDB) -NASA has also developed a past performance database to track contractor's performance on NASA contracts

19. CPARS REPORTING FREQUENCY • Initial Report • Required if Period of Performance > 365 Days • Not Required if Period of Performance ≤ 365 Days – Write Final CPAR Only • Covers No More Than 12 Months of Actual Performance • Assessment Period May Begin After Contract Award Date • Protests • Delayed Starts • Note the date in the Effective Date field in CPARS

20. CPARS REPORTING FREQUENCY • Intermediate Reports • Required every 12 months • Complete with Other Reviews When They Coincide • Option Exercise • Award Fee Determinations • Program Milestones • Not Cumulative: Assess Only Performance Occurring After Last Assessment Period • Required Upon Transfer of Program Management Responsibility Outside Original Buying Activity

21. CPARS REPORTING FREQUENCY • Out-of-Cycle Report (Optional) • Written if Significant Change in Performance • Contractor May Request in Writing • Written at Government’s Discretion • Address Only Those Areas That Have Changes • No More Than Once Out-of-Cycle Report Completed Per Cycle Year

22. CPARS REPORTING FREQUENCY • Final Report • Required at Contract Completion • Delivery of Final End Item • End of Period of Performance • Required Upon Contract Termination • Not Cumulative: Assess Only Performance Occurring After Last Assessment Period

23. CPARS REPORTING FREQUENCY • Addendum Report (Optional) • Evaluate Contract Close-Out • Timeliness of Providing Documents • Evaluate Warranty Performance • Evaluate Performance with Respect to Other Administrative Requirements • Written at Government’s Discretion

24. REPORTING TASK/DELIVERY ORDERS • Must Complete Individual CPAR for Each Task/Delivery Order That Meets or Exceeds the Reporting Threshold • The Basic Indefinite-Delivery/Indefinite-Quantity (IDIQ) contract, Basic Ordering Agreement (BOA), or Blanket Purchasing Agreement (BPA) Does Not Need to be in CPARS to Enter an Order

25. REPORTING FSSORDERS • Orders under Federal Supply Schedule (FSS) contracts That Meet or Exceed the Reporting Threshold Are Reported Individually • The base contract does not need to be in CPARS to enter an order • When registering a FSS contract in CPARS, the FSS contract number should be entered in the contract number field and the order number is placed in the order number field. An order number is required when registering FSS contracts. • GSAPrepares the Assessment for the Base Contract

26. REPORTING UCAs • Prior to Definitization • Address Performance Beginning with Date the UCA Was Issued • Address Contractor’s Ability to Remain Within UCA Cost Limitations • Following Definitization • Address Contractor’s Efforts in Promoting Contract Definitization • If Definitized as Cost-Type or Time-and-Materials (T&M)/Labor Hour Contract, Continue to Address Cost Control • If Definitized as Firm-Fixed-Price Contract, Only Address Cost Control Efforts Prior to Definitization

27. BEST PRACTICES • Discuss performance expectations in the initial post - award meeting/provide CPARS Guides to Contractors and Evaluators • Conduct discussions early in the performance of work so contractors have an opportunity to improve performance • Maintain open communications with the contractor about the Government's requirements and how the contractor can best meet them

28. BEST PRACTICES • Keep a timely performance record of quality, cost, schedule, and business relations • If available, use award fee board, earned value management system, Quality Assurance Surveillance Plan, or other similar contract administration records...then include contractor discussion and comments on the evaluation...Don’t reinvent the wheel!

29. BEST PRACTICES • For orders against MACs: • Use past performance as an initial screen to determine which awardees will receive further consideration for a task or delivery order • Conduct interim evaluations and customer satisfaction surveys • Hold meetings with contractors experiencing performance and quality problem • Consider “out of cycle” reporting

30. BEST PRACTICES • Give the contractor a draft report of evaluation prior to publishing • COTRS - Maintain a performance record, on the prime contractor’s performance report, of the major subcontractors and any team or joint venture partners on the contract • If evaluation subfactors are used, tailor them to match the requirement and capture the key performance criteria in the statement of work

31. BEST PRACTICES • COTRS • Focus on useful training outside of the required 40 hours • Develop a COTR program • Appoint PM as the Source Selection Official • Add PPI Registration and Assessment metrics to Performance Plans to measure timeliness and accuracy

32. QUESTIONS

33. References • IG report, "Contractor Past Performance Information" (No. D-2008-057), is available at: http://www.dodig.osd.mil/Audit/reports/fy08/08-057.pdf. • Federal Contractors: Better Performance Information Needed to Support Agency Contract Award Decisions GAO-09-374 April 23, 2009 http://www.gao.gov/products/GAO-09-374 • OFPP Memorandum for the Chief Acquisition Officers Senior Procurement Executives July 29, 2009 http://www.whitehouse.gov/omb/assets/procurement/improving_use_of_contractor_perf_info.pdf