Get What You Need: Final FAR Rule Makes Past Performance More Important Than Ever
September 10, 2013
By: Lindsay Simmons
Last month, the Federal Acquisition Regulation (FAR) was amended to change the government’s procedures for recording contractor past performance. Specifically, the changes provide factors for government-wide standardization of past performance evaluations and make reporting more consistent and accurate. The final rule requires contracting officials to enter past performance information into the Contractor Performance Assessment Reporting System (CPARS) and sets out revised evaluation rating definitions and descriptions.
For years now, federal agencies have been required to evaluate, at least annually, contractor performance for each contract, order, or modification that exceeds the simplified acquisition threshold. But studies found that reports were not prepared or when they were prepared were inconsistent and often not submitted to any central repository. Under the new rule, that should all change.
The new rule makes clear that past performance evaluations must be performed and must analyze a contractor's performance on a wide range of factors – from cost control and technical quality to business relations – using clear, non-technical descriptions. The rating categories include exceptional, very good, satisfactory, marginal and unsatisfactory. Ratings are required to be justified based upon objective facts and significant events. Thus, if a contractor receives an exceptional rating, the report must identify several specific examples of how its performance was of benefit to the government. For a "very good" rating, a report need only identify one example. Contractors must receive at least a "satisfactory" rating if they complete all of their contract requirements. Reports that include "marginal" and "unsatisfactory" ratings must identify specific performance problems and how such problems adversely impacted the government.
The rule no longer leaves to chance the actual reporting of past performance evaluations. Agencies now are required to assign responsibility for submitting reports, failing which the contracting officer must submit the reports. Everyone involved in the contracting process, from technical officers to end users, must be afforded an opportunity to provide input on the contractor's performance.
Then what happens? After a report is submitted, it must be given to the contractor, and the contractor must be provided with an opportunity to comment. This is a critical opportunity for all contractors and one that should never be passed up. In fact, if a report has not been prepared for your contract, ask the contracting officer to prepare one. When it’s prepared, make certain to review it carefully and to provide written comments, with specific support, if you disagree with any of the ratings or examples used in the report. This is part of your permanent record and something that will be used by other agencies for years to come. Make certain it’s the best it can be.
Lindsay Simmons is the attorney responsible for the content of this article.