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