INTELLIGENCE AND SURVEILLANCE
Staying Ahead of Proliferating Reporting Databases
A contractor’s past performance record is much like an individual’s credit score — it has immense effect on one’s financial success, there is a high potential for inaccurate information and the only effective defense is constant diligence.
The government’s newest online clearinghouse for past performance information is called the Federal Awardee Performance and Integrity Information System (FAPIIS). Its records cover past adverse actions, suspension or debarment entries from the Excluded Parties Listing System (EPLS), information on administrative settlements and other contractor-reported data.
Past contract performance evaluations are not publicly accessible — through FAPIIS or otherwise, — but they are accessible to government contracting officials through the Contractor Performance Assessment Reporting System (CPARS) and the Past Performance Information Retrieval System (PPIRS).
In the last year, there has been a trend toward making past performance information more readily available, both inside and outside government. In January, a final rule was issued that makes many types of past performance information — other than past performance reviews — available through FAPIIS. Notably, the rule also gives contractors only seven calendar days in which to review and object to a proposed release of information through the system.
On July 18, the Office of Federal Procurement Policy invited public comment on possible changes increasing contracting officers’ access to information regarding all locations of all corporate affiliates of a contractor in FAPIIS. The office also sought comment on different mechanisms for obtaining this information, including both increased reporting obligations and third-party business intelligence vendors.
These changes mean that contractors must take great care to stay on top of past and ongoing performance evaluations. One crucial aspect of this effort is the management of due dates and timelines. For example, once a preliminary CPAR evaluation is received from an assessing official, a contractor’s designated representative has only 30 days to review, comment on and return the evaluation. Should the representative not do so, he or she may lose an important opportunity to comment on and seek changes to the evaluation. This task is further complicated by the variances between different agency-specific guidelines and procedures for CPARS.
Another important task is to keep points of contact current. For example, CPARS requires contractors to designate representatives to whom evaluations will be sent via automated emails. If this contact information is outdated, contractors risk missing out on important and time-sensitive evaluations, as well as on opportunities to contest such results.
Perhaps most importantly, contractors must work to create and maintain productive working relationships with their government customers. The roster of evaluators includes not only contracting officers, but also the assessing official, the assessing official representative and the reviewing official. Many disagreements over past performance evaluations can be nipped in the bud, long before they are included in any written evaluation.
When it becomes necessary to challenge a past performance evaluation, contractors should handle these issues at the contracting officer level — before they escalate to the Boards of Contract Appeal or the Court of Federal Claims. Challenging negative past performance evaluations at the boards or in court can be very difficult. As recently as July 6, the U.S. Court of Federal Claims refused to grant a preliminary injunction to a contractor seeking to remove an unsatisfactory past performance rating from PPIRS, finding that such injunctive relief was not available.
In an era of tight budgets, the importance of managing past performance information cannot be overstated. A negative past performance evaluation can live on for years after it is issued, and agencies are not restricted in how far back they can look.
David P. Goodwin (firstname.lastname@example.org) is counsel, government and military at Oakley, Inc., and Caitlin S. Kaprove is an associate at Greenberg Traurig LLP. The views expressed are solely those of the authors.
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