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Rule to Standardize Past Performance Evaluation Factors and Ratings May Be on the Horizon

Posted Mar 01, 2011
Jonathan A. DeMellaview author profile and contact info

For many years now (including just last week), I have heard from clients and contractors that the Government's various systems and methods for collecting, reporting, and assessing contractors' past performance is, to put it kindly, less than adequate.  Such concerns have included, for instance, that the Government refuses to consider past performance that is similar and undeniably relevant to a scope of work in a solicitation, that Contracting Officers (even with the same agency, such as the Army Corps of Engineers and NAVFAC) apply very different standards for the evaluation of past performance, and that the ratings themselves are not a fair reflection of the contractors' performance.

Yesterday, an article by Robert Brodsky in the Government Executive echoed these concerns, in which he reported that "Federal agencies are inconsistently entering mandatory reports on contractors' past performance in a government wide database, limiting the information available to procurement officials issuing multimillion-dollar wartime awards."  This was based on recent testimony before the congressionally chartered Commission on Wartime Contracting.  Data collected by the Commission indicated that past performance information is not being entered by agencies into the CPARS and PPIRS databases as required by federal law.  In response, it appears the Government intends to issue a proposed rule in the FAR that will standardize evaluation factors and performance ratings, and establish government-wide training on how best to report past performance.

Despite this much needed attention to a serious problem, I am not confident that any proposed changes will bring about the uniformity and fairness that is clearly needed.

For instance, FAR 15.305, which is utilized for negotiated procurements, already instructs Contracting Officers to consider:  "[past] efforts similar to the Government requirement;" performance by "predecessor companies;" "subcontractors that will perform major or critical aspects" of the work, and; how offerors with little or no relevant performance history can be evaluated.  Thus, the problem is not so much in the substance of the rules, but, rather, how to ensure that the Government officials evaluating proposals consistently and fairly apply those rules.

We will report on the proposed changes to the FAR if and when they appear in the Federal Register. 

We welcome your questions or comments, which can be sent to Jonathan DeMella at 206.623.3427 or email: demella@oles.com

The Government Contracts Practice Group at Oles Morrison has an established history of assisting contractors with claims against federal and state agencies, bid protests and providing advice and counseling on all issues involving public procurement.

Government Contracts Law Update: EG Solutions and MultimaxArray Lose DHS Contract

Posted Feb 15, 2011
Anne Marie Tavellaview author profile and contact info

On February 10, 2011, the Department of Homeland Security announced EG Solutions and Multimax Array have been dropped from the $3 billion FirstSource contract.  

Both firms were suspended by the Small Business Administration in November 2010, following an investigation that found the firms misrepresented the amount of work they would be performing on the contracts, choosing instead to subcontract nearly all of the work to large businesses.  The FirstSource contract was a small business set aside contract for IT hardware, software and services.  

DHS stated that the suspension rendered the firms ineligible for further work under the contract.  Prior to their suspensions, EG Solutions and MultimaxxArray had received more than $270 million worth of work under the contract.  Neither company has publically responded to the SBA’s suspension.  

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