Past Performance Obtaining It Using It Defending It

Your Panel Moderator: Robert K. (Bob) Tompkins, Holland & Knight Panelists: Sydney Cody, Vanguard Pacific Wallace Sermons, Environmental Protection Agency Mario Burgos, The Burgos Group Angela Terry, Small Business Administration 2

What this Presentation Covers » What is Past Performance and what Challenges are presented by Solicitation Past Performance requirements » Obtaining Past Performance » Using Past Performance » Earning Past Performance » Defending Past Performance and Challenging Negative CPARs 3

1. The Basics: Past Performance » The FAR requires consideration of an offeror’s past performance as part of proposal evaluation (FAR 15. 305) » The Contractor Performance Assessment Reporting System (CPARS)(cpars. gov) is a primary source of information » Agencies may also use questionnaires or other means to assess past performance 4

1. The Basics: CPARS » Contractor Performance Assessment Reporting System (CPARS)(cpars. gov) » A central repository for contractor performance reviews » Required of all agencies with limited exceptions » Available to government contracting officers for use in evaluating offerors » A contractor can access its own CPARS » Part of a broader reporting and data gathering hierarchy (including FAPIIS, SAM, etc. ) 5

2. Obtaining Past Performance » Through direct experience » Can include commercial and subcontracted work » May include teaming partners (up to a point) » May be vested in your key personnel » May be acquired 6

3. Using Past Performance: Bids, Proposals and Protests » An RFP may allow an offeror to rely on affiliates, subsidiaries, key personnel, etc. , to meet the RFP requirements (FAR 15. 305), but • Be mindful of the ostensible subcontractor rule, and • Know that GAO has repeatedly ruled that those affiliate resources must actually be made available for contract performance in the proposal!!! • Key Takeaway – Read the RFP!!! • Consider how to 7

4. Earning Past Performance: CPARS Coverage » CPARS are required to cover at a minimum: » (i) Technical (quality of product or service). » (ii) Cost control (not applicable for firm-fixed-price or fixed-price with economic price adjustment arrangements). » (iii) Schedule/timeliness. » (iv) Management or business relations. » (v) Small business subcontracting, including reduced or untimely payments to small business subcontractors when 19. 702(a) requires a subcontracting plan (as applicable, see Table 42 -2). » (vi) Other (as applicable) (e. g. , trafficking violations, tax delinquency, failure to report in accordance with contract terms and conditions, defective cost or pricing data, terminations, suspension and debarments). 8

4. The FAR defines the Adjectival Ratings The FAR provides the Adjectival Ratings which must be used in a CPAR report. The Adjectival Ratings are: • Exceptional • Very Good • Satisfactory • Marginal • Unacceptable Each of these terms is defined (summary and example below) The CPAR Report also contains other information including a recommendation of whether the Assessing Official would work with the contractor again. 9

Contractor Performance Assessment Reporting System http: //www. cpars. gov Ø CPARS Assessing Officials assign one of five (5) adjectival ratings: ü EXCEPTIONAL - Performance meets or exceeds contractual requirements; contains few minor problems; corrective action highly effective. ü VERY GOOD - Performance meets or exceeds contractual requirements; contains some minor problems but corrective action effective. ü SATISFACTORY - Performance meets contractual requirements; contains some minor problems but corrective action satisfactory. ü MARGINAL - Performance does not meet some contractual requirements; corrective action not yet identified. ü UNSATISFACTORY - Performance does not meet most contractual requirements; timely recovery not likely; corrective action ineffective. 10

4. Adjectival Rating Definition and Note Example (b) Very Good Performance meets To justify a Very Good contractual requirements rating, identify a and exceeds some to the significant event and Government's benefit. state how it was a The contractual benefit to the performance of the Government. There element or sub-element should have been no being evaluated was significant weaknesses accomplished with some identified. minor problems for which corrective actions taken by the contractor were effective 11

4. CPARS – Evaluation Content • The Adjectival Rating must be backed up by a narrative • The Assessing Official is required to consider objective information including a host of contractrelated reports. • The Report “should” be prepared and posted within 120 of the end of the review period (i. e. contract year) 12

5. Challenging CPARS – Understanding the Process and Your Rights • The Assessing Official (AO) posts the report in CPARS and it is marked as “pending” for 60 days. • The contractor has 14 days to respond to the evaluation rating and narrative in CPARS before the CPAR appears in PPIRS (now at CPARS. gov) – • important to get your input added before the report posts! Be factual, present evidence, consider the adjectival rating definitions and contract terms. • The AO reviews the comments and can revise the CPAR to address the contractor’s concerns. • If the AO disagrees with the contractor, the AO forwards the CPAR to the Reviewing Official (RO) 13

CPARS Process • The Reviewing Official (RO) reviews the nonconcurrence items; evaluates and “supplements” the AO’s review • If the contractor continues to disagree after the RO signs the CPAR, the contractor may present the issue as a Contract Disputes Act “claim” and request a Contracting Officer Final Decision • Then what? 14

References -FAR Subpart 42. 15 -CPARS Guide -- https: //www. cpars. gov/pdfs/CPARS-Guidance. pdf 15

Questions? 16

Thank You! 17

Robert K. "Bob" Tompkins • • Bob Tompkins Partner Co-Chair National Government Contracts Team Government contracts counseling Bid protests and contract disputes Government investigations and audits Suspension and debarment Compliance and compliance programs Small Business Administration matters Practice • Government Contracts • Litigation and Dispute 202 469 -5111 Resolution Robert. tompkins@hklaw. • Compliance Services • Government com Investigations Washington, DC • Risk and Crisis Management Education Bar Admission • Washington & Lee University (B. A. and J. D. ) • District of Columbia • Virginia 18

Mario Burgos • President & CEO, Burgos Group • Society of American Military Engineers – National Small Business Chair • 2017 SBA Small Business Person of the Year (NM) • 2015 SBA Prime Contractor of the Year (Region 6) • Inc. 5000 Fastest Growing Companies (2014 -2019)

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