Contractors Should Protect Their Reputation
By John Stafford and David Goodwin
Professional reputation is important for all businesses. But for government contractors, reputation in the form of past performance information often makes the difference between winning or losing a contract.
Contractors must ensure the accuracy and completeness of past performance information. The Past Performance Information Retrieval System (PPIRS) is a government-wide portal through which contractors can access government performance assessments of their contracts. The same portal is available to agencies evaluating contractors for contract award.
The Federal Acquisition Regulation gives contractors the right to comment on adverse performance evaluations. Agency performance assessments are required for all contracts exceeding $100,000. Interim evaluations may also be required. In 1999, the Defense Department invoked a class deviation from this FAR blanket acquisition threshold, setting different dollar thresholds by business sector for performance assessments.
For instance, the information technology and service contracts threshold is $1 million; the construction contracts threshold is $500,000. For contracts over these amounts, the assessing government official must execute performance assessments, both interim as well as a final performance assessment report upon contract completion.
Most performance assessments have three components: the contracting officer’s initial assessment; the contractor’s comments and rebuttal; and the agency review. The contracting officer performs the initial assessment in conjunction with the program office personnel most familiar with the contractor’s performance. After the initial assessment, the contractor normally has 30 days to respond and rebut any ratings.
If the contractor, the contracting officer and the lead assessor cannot agree on the ratings, the contractor may seek agency review by personnel at least one level above the contracting officer. If generated, contractor comments and agency reviews must be included with the initial assessment as a complete past performance file for past evaluations during any future source selection.
Two recent U.S. Court of Federal Claims cases, BLR Group of America, Inc. v. United States (Nov. 25, 2008) and Todd Construction, L.P. v. United States (Dec. 9, 2008), confirmed the U.S. Court of Federal Claims jurisdiction to hear contractor claims challenging improper past performance assessments. This judicial review provides an additional avenue to correct a damaging or inaccurate past performance assessment. If meritorious, promptly filing a Contracts Dispute Act claim with the court is more efficient and more likely to succeed than waiting until a future contract award is lost and then challenging the improper past performance assessment through a bid protest.
As the U.S. Court of Federal Claims notes, the contractor in a bid protest also must overcome a higher and more convoluted standard of review as a result of the discretion enjoyed by the agency’s evaluation and source selection processes.
Past performance assessments are uploaded into PPIRS through various electronic information collection systems such as the Contractor Performance Assessment Reporting System — a legacy Navy program now used throughout the Defense Department — the Contractor Performance System, which was set up by the NIH Center for Information Technology and used by many non-Defense agencies and NASA’s Past Performance Data Base.
Contractors can access their past performance files through PPIRS. First, a contractor must ensure that its central contractor registration (CCR) account is up to date and obtain a public key infrastructure (PKI) certificate from a government external certificate authority vendor. Using its PKI certificate, DUNS number, and Marketing Partner Identification Number obtained through CCR, a contractor can log on and review its own past performance.
While contractors should be given a chance to review and comment on past performance information before it is uploaded to PPIRS, it is wise to periodically check the database, such as when new past performance data are entered — usually annually from date of contract award and upon contract completion. This practice not only avoids the potentially devastating negative effect of adverse past performance information on future government business opportunities, it also ensures that positive evaluations are timely recorded into the database.
John G. Stafford, a shareholder, and David P. Goodwin, an associate with the international law firm of Greenberg Traurig LLP, are members of the firm’s government contracts practice group. The views expressed are solely those of the authors.