Type: Law Bulletins
Date: 08/09/2013

What Have You Done For Me Lately? Proposed Rule Shortens Time for Contractors to Respond to Performance Evaluations

Most government contracts require that an agency evaluate a contractor's performance at various times during performance and after completion of performance via the Contractor Performance Assessment Reporting System (“CPARS”). Contractors have an opportunity to submit their own comments, rebut accusations and provide additional information relevant to their performance, all of which are also included in the CPARS. FAR § 42.1503(b). Completed CPARS are then shared with other source selection officials via the Past Performance Information Retrieval System (“PPIRS”) to assist them in evaluating a contractor's past performance. FAR § 42.1502.

Currently, contractors are given a minimum of 30 days to respond to evaluations. Id. During this 30-day period, an agency’s evaluation information is only accessible to the contractor and the evaluating agency. In other words, it takes at least 30 days from the issuance of a performance evaluation for other source selection officials to be able to access this information in the system.

On August 7, 2013, the Department of Defense (“DoD”), the General Services Administration and the National Aeronautics and Space Administration issued a proposed rule that would amend these FAR provisions as to the amount of time contractors have to respond to agency performance evaluations. According to the proposed rule, contractors would have no more than 14 calendar days to comment on a contract performance evaluation, after which time other source selection officials may view the agency’s evaluation. While comments submitted after 14 days may be added subsequently, source selection officials would see only the agency’s evaluation, without contractor commentary, until the next time the evaluation is updated. This change is intended to balance the agency's need to share past performance information with other source selection officials with the contractor's need for time to respond to adverse or incomplete agency evaluations.

Unfortunately, the proposed rule only focuses on shortening a contractor’s time to provide commentary to the CPARS. It does not tackle the real problem with the CPARS — agency delays in completing the CPARS in a timely fashion. For example, DoD guidance states that evaluations should be completed within 120 days of the completion of an evaluation period. While some agencies have more success than others, more often than not a CPARS evaluation is issued outside the 120 days. In fact, a 2008 DoD Inspector General report was highly critical of the CPARS process.1 The report found that, out of the system contracts2 reviewed at the time, not all active systems contracts valued over $5 million were even listed in the CPARS and “68 percent had past performance reports that were overdue.”3

If the objective of the proposed rule is to give source selection officials access to a contractor's most recent past performance information, shortening contractor response times alone does not cure the problem. Without an effective enforcement mechanism that requires an agency to prepare the CPARS shortly after the evaluation period has ended, source selection officials are no better off than before. The only thing accomplished is that contractors get shortchanged by having their response time cut by more than 50%.

When this rule becomes effective, contractors will need to ensure that they promptly monitor CPARS notifications so that they can fully respond to evaluations prior to the time the information is released into PPIRS, as this notification marks the beginning of the 14-day period.

This change comes as a result of statutory mandate; consequently, the final rule will likely be substantially similar to this proposed rule. Those wishing to comment should do so no later than October 7, 2013. See 78 Fed. Reg. 48123.

DoD Inspector General Report No. D-2008-057 “Contractor Past Performance Information.”  
Id. at 4.
3 Id.

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