BLOG: Performance Anxiety: Five Questions from Government Contractors on Past Performance

December 13, 2019

By Samuel S. Finnerty
Practice Areas: Government Contracts Law and Small Business Programs & Advisory Services

A government contractor’s past performance can spell the difference between proposal rejection and contract award, and agencies are given broad discretion in how they evaluate past performance. It is critical that companies working with the federal government understand not only what steps they should take to utilize and cultivate positive past performance, but also the steps they should take to defend it. We recently gave a webinar on these topics and received several follow-up questions. Below we address the top five listener questions.

Sometimes, the contracting officer is not knowledgeable about the details of a contract. Does the CO complete the CPARS evaluation?

The FAR does not identify a specific individual responsible for assessment. That determination is left to the agency. Clarifying slightly, CPARS Guidance states that “[r]esponsibility for completing quality evaluations in a timely manner rests with the Assessing Official (AO) who will be designated in accordance with Agency policy. The AO may be a Contracting Officer, a Contract Specialist, Administrative Contracting Officer, Purchasing Agent, or Program Manager (PM), or the equivalent individual responsible for program, project, or task/job/delivery order execution.” Accordingly, the Assessing Official should be someone knowledgeable. If you find yourself in a situation where an Assessing Official who had no involvement in the project issued your company a negative CPARS, you may be able to use that as a basis to object to the evaluation or push for a more favorable rating.

Who is responsible for meeting deadlines to complete the CPARS? Is it the CO, the CO’s Representative, or should the contractor remind them?

The Assessing Official is responsible for meeting deadlines associated with the initial review, and if the contractor indicates a “non-concurrence” with the evaluation or, during the 60-day comment period, asks for a review of the evaluation at a level above the CO, the “reviewing official” is then responsible for meeting its deadline to complete the entire evaluation process within 120 days. That said, these deadlines are routinely missed, and we have seen CPARS ratings issued that are more than a year late. If deadlines are being missed, this is certainly something a contractor can bring to the CO’s attention and, if no response is received, this is something the contractor can escalate further within the agency. Because CPARS ratings are critical to a contractor’s ability to procure new work, a contractor should have every right to ask that the agency complete an evaluation when required.

Our company had a contract cancelled by the government because the requested product was no longer available and the customer did not want our replacement product. Eight years later, we still get questions from contracting officers about this cancellation. How long can a bad CPARS rating or contract cancellation be considered in an RFQ evaluation?

FAR Part 8 procurements are only conducted using FAR Part 15 procedures (i.e., the procedures outlining CPARS and the requirements for past performance evaluations) when stated. Under FAR Part 15, agencies are required, when conducting a past performance evaluation, to use CPARS ratings that are within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order. 48 C.F.R. § 42.1503(g). Thus, for consideration purposes, CPARS ratings should “expire” after these time periods.

With a termination for default or cause, FAR Part 15 does not set an expiration on this information’s consideration. Instead, FAR 42.1503(g) simply states that, when conducting a past performance evaluation, the agency must consider “information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), e.g., terminations for default or cause.” Moreover, FAR Part 9 mandates that an agency review information regarding terminations in FAPIIS when determining a contractor’s responsibility for any contract in excess of the simplified acquisition threshold. 48 C.F.R. 9.104–6. A termination on a contractor’s record thus does not “expire” and can impact responsibility determinations or lead to follow-up questions long after it occurs. However, if the termination you are referencing was a termination for convenience, that should not impact on your company’s ability to procure new work going forward.

Is there an industry-preferred method for obtaining a CPARS rating to vet potential teaming or joint venture partners?

Other than the teaming partner’s reputation in the industry or information you learn from other sources, there is no publicly available repository of contractor CPAR or past performance references. Contractors can access their own records only. FAR 42.1503(4)(d) deems all past performance data as Source Selection Sensitive, so information is not releasable unless directed by the agency who submitted the data. If you are the prime contractor for an upcoming opportunity and intend to rely on your teaming partner’s past performance for a specific contract reference, you must ask your teaming partner to provide you with the relevant CPARS information before you include it in your proposal.

Are subcontractors mentioned in a prime contractor's CPARS rating?

While CPARS evaluations are not completed for subcontractors, evaluation of a contractor’s performance may include information on the ability of a prime contractor to manage and coordinate subcontractor efforts. This type of information would be included in the management section of the prime contractor’s evaluation. For example, according to CPARS Guidance, in evaluating contract management, assessing officials are supposed to (1) address the timeliness of awards to subcontractors and management of subcontractors, including subcontract costs and (2) consider efforts taken to ensure early identification of subcontract problems and the timely application of corporate resources to preclude subcontract problems from impacting overall prime contractor performance.

CPARS ratings must also discuss subcontractors if the prime contract includes a subcontracting plan. According to FAR 42.1502, past performance evaluations shall include an assessment of contractor performance against, and efforts to achieve, the goals identified in the small business subcontracting plan when the contract includes the clause at 52.219-9, Small Business Subcontracting Plan.

A recording of our webinar is available here, and slides are available here. If you have your own questions on obtaining, using, or defending your past performance, please reach out to a member of PilieroMazza’s Government Contracts Group.

Katie Flood, Counsel at PilieroMazza, is a member of the Government Contracts and Small Business Programs & Advisory Services practice groups.

Sam Finnerty, an Associate at PilieroMazza, is a member of the Government Contracts and Litigation & Dispute Resolution practice groups.

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