“Past Performance” In Government Contracting:
Key Concepts, Advanced Strategies for Success
And New Developments
William A. Shook, Esq.
G. Matthew Koehl, Esq.
Introduction
 Statutory Requirement to Evaluate Past Performance
 Past Performance Evaluation vs. “Responsibility”
 Performance Assessment Reports/PPIRS
 Categories of PPI Subject to Evaluation
 Common PPI Problems And Disputes
 Strategies for Gaining Competitive Advantage from Past Performance
 Limits on Advertising Favorable Ratings
 New Developments
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Agencies Must Consider Past Performance
 Federal Acquisition Streamlining Act of 1994 (FASA)
 FASA Designed to eliminate “red tape” and to permit the
Government to behave more like the private sector
 Emulate private sector practice of awarding to companies
with strong performance records
 FASA requires use of past performance as an evaluation
factor in competitively negotiated awards
 Office of Federal Procurement Policy (OFPP) must establish
policies that encourage use of PPI in award decisions
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Past Performance – Regulations and Guidance
 FAC 90-21 (May 1995) revised FAR Subpart 42.15 to
reflect FASA’s approach to PPI (Attachment A)
 OFPP revised Best Practices Guide For Collecting and
Using Past Performance Information (Attachment B)
 Sample forms and questionnaire
 Suggests 25% weight for past performance where
evaluation factors are assigned a numeric weight value
 Draft revision issued for comments, still under review
 DoD Guide to Collection and Use of Past Performance
Information (Attachment C)
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Past Performance vs. Responsibility
 Responsibility: Yes/No assessment as to whether the contractor has
requisite financial resources, business integrity, etc. to perform the
solicited contract. FAR 9.1
 PPI Evaluation: One of several comparative evaluation factors used
to select best value contractor. FAR Part 15
 PPI evaluations apply only to negotiated procurements (FAR Part
15), and not sealed bids (FAR Part 14) where award goes to the
lowest responsive, responsible bidder
 Agency must define how past performance will be rated
“unacceptable” in low price/technically acceptable RFPs
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Past Performance vs. Responsibility
 Distinction vs. Responsibility especially important for
Small Business Concerns
 Negative responsibility determinations are referred to SBA
for Certificate of Competency (COC) process
 No right to COC process when Small Business Concern
receives a poor rating based on past performance
 Goode Construction, Inc., B-288655, 2001 WL 1505922
(Oct. 19, 2001). GAO denies “responsibility” protest where
award was based on a “comparative evaluation” of the
relevant past performance of the awardee and protester
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Performance Assessment Reports (PARs)
 Performance Assessment Report (PAR) required for all contracts
> simplified acquisition threshold ( $100k). FAR 42.1502(a)
 DoD class deviation to FAR threshold ($5 million)
 Lower thresholds for certain DoD contract types
 PAR at contract completion
 Interim PAR for contracts > 1 year
 PAR “Report Card” format can vary agency
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Performance Assessment Reports (PARs)
 PARs good only for 3 years from the date of contract
completion. FAR 42.1503(e)
 Agencies treat PARs as protected “source selection
information” under FAR 3.104
 Exempt from FOIA
 Contractor opportunity to review draft PAR
 Must submit comments with 30 days
 Review above contracting officer in case of disagreement
 Final PAR within agency’s discretion
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Contractor Performance Assessment Reporting
System (CPARS)
 Web-enabled application that collects individual automated
contractor performance assessment ratings (CPARs)
 DoD-wide but not for classified contracts
 Contractors comment on the CPAR and indicate concurrence or
non-concurrence
 DOD CPARS Policy Guide:
http://www.cpars.csd.disa.mil/cparsfiles/pdfs/DoD%20CPARS%20G
uide%20June%202007.pdf
 February 2008 DoD IG Report – CPARS is ineffective because DoD
CPAR data is often late, incomplete or not submitted at all as
required for DoD contracts > $5 million
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Central Repository of Contractor PARs
 Past Performance Information Retrieval System (PPIRS):
http://www.ppirs.gov/
 Central warehouse for performance assessment reports received
from agency performance information collection systems
 Populated by CPARS and other agency collection systems
 Query capability to retrieve report card information
 Access limited to agency employees working on source selections
 Contractors can only view their own PARs (access via ccr.gov)
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Categories of PPI Subject to Evaluation
 Information Provided by the Contractor
 Offeror may submit past performance information on Federal, S/L/E or
commercial sector contracts. FAR 15.305(a)(2)(ii)
 PPI from “Other Sources”
 Agency may seek PPI from “any other source.” FAR
15.305(a)(2)(ii)
 Includes formal PARs in PPIRS
 Also includes less formal information known personally to
agency employees or solicited by the agency, e.g.,
subcontractors and customers
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Categories of PPI Subject to Evaluation
 Subcontractor Past Performance Information
 Agency may consider subcontractor PPI where the
subcontractor will perform a substantial portion of the
contract. FAR 15.305(a)(2)(iii)
 Absent a prohibition in the solicitation, GAO will reject
challenges to the agency’s consideration of subcontractor
PPI. Rolf Jensen & Associates, Inc., B-289475.2,
B289475.3, 2002 WL 1782710 (Jul. 2002)
 Practical Tip: Do your homework on significant
subcontractors’ PPI – it could affect your award!
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Common Problems and Disputes
 “Grade Inflation”
 General concern that grading has gotten too easy, with
evaluators avoiding conflict by awarding high marks
 As a practical matter, anything less than Blue/Excellent
could suggest less than good performance.
 Given the trend of “Grade Inflation,” even more important
to challenge and rebut negative or even average past
performance ratings
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Common Problems and Disputes
 “Stale” Past Performance Information
 Contracting Agency should not consider PPI that is more
than 3 years old, measured from the date of contract
completion. FAR 42.1503(c)
 “Fresher” PPI is favored over less current PPI. FAR
15.305(a)(2)
 But agency has no duty to update PPI submitted by
offeror; this burden falls on offeror. IGIT, Inc., B-275299.2,
97-2 CPD ¶ 7
 Practical Tip: Don’t submit contract references that may
become stale before evaluation/award date. Always
submit more current references unless they are less
relevant or contain less stellar performance ratings
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Common Problems and Disputes
 “Rogue” Past Performance Information
 Agency considers untrue, conflicting or unsupported PPI
 E.g., former employee or Government employee with a personal
vendetta against contractor
 Agency should discount or at least provide the opportunity to
comment on such information FAR 15.306(d)(3)
 Often won’t learn of rogue PPI until evaluation is complete and
award decision made. Only remedy at that point is to protest
 Protest may be worth filing simply to correct record, even if you
don’t expect eventually to obtain the award
 Practical Tip: PPI is an important topic for post award debriefing.
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Common Problems and Disputes
 Failure to Provide Notice of Adverse PPI
 Adverse PPI is anything that results in less than an
excellent score during proposal evaluation.
 Agency must address adverse PPI during discussions with
offerors in the competitive range if the contractor has not
previously had an opportunity to comment. FAR
15.306(d)(3)
 Agency must conduct communications with offerors when
PPI is the determining factor keeping offeror from
competitive range. FAR 15.306(b)(1)(i)
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Common Problems and Disputes
 Failure to Document Informal Sources of PPI
 When utilizing less formal sources, agency must
document its evaluation sufficiently to show that the
evaluation was reasonable and consistent with the
solicitation, or risk successful protest
 Gray Personnel Services, Inc., B-285002, B-285002.2,
2000 CPD ¶ 112. GAO rejects protest against
consideration without verification of management quality
assessments and individual employee reviews, where
RFP did not restrict consideration of such information
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Common Problems and Disputes
 Failure to Consider the Correct PPI
 OSI Collection Services, Inc.; CB Accounts, Inc., B286597, et al., 2001 C.P.D. ¶ 103 (Oct. 2001). No
requirement for the agency to contact all submitted
references, or contact the same number of references for
each offeror
 However, agency may not ignore relevant PPI. GTS
Duratek, Inc., B-280511.2, 98-2 C.P.D. ¶ 130 (GAO
sustains protest where agency failed to consider PPI
personally known to evaluators on relevant contract).
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Common Problems and Disputes
 Failure to Follow Evaluation Criteria.
 Past Performance must generally be a factor in all negotiated
procurements > $100k. FAR 15.304(c)(3)(ii)
 Agency must disclose all evaluation factors and specify their importance
relative to price. FAR 15.304(c)(2)
 Dismas Charities, Inc. 2003 C.P.D. ¶ 125 (June 2003) (sustaining
protest for failure to follow stated past performance evaluation criteria)
 Practical Tip: Carefully review agency past performance evaluation
where RFP references “same or similar” projects, magnitude, scope, etc.
Consideration of PPI from contracts that are not “same or similar” is
improper
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Common Problems and Disputes
 Improper Use of PPI
 Nova Group, Inc., B-282947, 99-2 CPD ¶ 56 (protest
sustained b/c agency downgraded protester’s past
performance based on history of filing claims, w/o any
showing that it had abused claims process)
 OFPP Memorandum April 1, 2002: no downgrading for
filing protests/claims or better scores for refraining from
filing protests/claims. Attachment D.
 Allegations of improper punishment, etc., are difficult to
prove given (1) broad agency discretion and (2) limited
discovery in bid protests
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Contractor Strategies
 Perform Well
 Obvious point, but make sure you adequately staff and
train program teams to earn excellent ratings
 Tie program teams’ individual performance ratings to
successful contract performance ratings
 Communicate with Agency
 Regular formal (PMRs, etc.) and informal dialogue with
CO and Government program team.
 Request early warnings of possible performance problems
– fix little problems before they become big problems.
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Contractor Strategies
 Don’t Fight About Everything
 Pick your battles carefully, rather than contesting every
issue and appearing to be a difficult business partner
 Reserve your battles for issues that truly matter
 Treat Government Concerns Seriously
 Respond promptly and thoroughly
 Make sure company executives are informed and, where
necessary, able to engage directly with the agency to
resolve problems
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Contractor Strategies
 Shape RFP Requirements
 Informal dialogue, comments to draft solicitation, Q & A, or
even agency-level or GAO protest
 Define past performance evaluation factors to your
benefit, e.g., size and relevancy to RFP
 Battle is often won or lost prior to bid – once bids are
submitted, too late to challenge evaluation criteria
 Provide PPI Tailored to the RFP’s evaluation factors
 “One size fits” all approach often won’t work well.
 Detailed summary of all current and recently-completed
contracts: contract type, project description, agency, value
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Contractor Strategies
 Monitor sources of information on your PPI
 PPIRS
 Errors not infrequent, many are easily corrected.
 Ask your customers what they’re hearing about your PPI
 Participate in post-award debriefings
 Excellent source of information about how your PPI was
evaluated and how well your B&P group responded
 Keep detailed file on debriefings
 Worth your time even if you don’t intend to protest
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Contractor Strategies
 Examine subcontractor/teammate PPI
 May have dramatic impact on your rating
 Do this early in bid preparation process -- finding out that
it’s negative at your de-briefing only helps on the next bid!
 Review and comment on PARs for existing contracts
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Formal review and comment process
Seek higher level review
Informal dialogue with Contracting Agency
Prepare strong response to negative findings with as much
detail as space will permit
 Be reasonable and dispassionate
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Limits on Marketing/Advertising Favorable PPI
 PARs generally represent Source Selection Information
under FAR 3.104
 Not for release except to Government and the contractor
 CPAR policy provides that the contractor must ensure that it is not
released to persons or entities outside the contractor’s control
 CPAR policy prohibits the contractor’s use of or reference to CPAR
data for advertising or promotional material
 Practical Tip: Don’t laminate favorable CPARs for easy
distribution at trade shows!
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Marketing/Advertising Favorable PPI
 What can you do?
 Make customers generally aware that you achieved
strong past performance ratings on specific projects
 Refer the customer to the specific source where they
can access agency PARs
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New Developments
 H.R. 3030 – Database of contractor performance
problems
 GSA to report recommendations for a centralized and
comprehensive federal contracting and assistance
database
 Avoid AEY, Inc. scenarios
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Multiple T/D contracts in 2006
Later awarded $300 million contract to supply Afghan Army
T/D and indicted on 71 counts of fraud
No PAR in PPIRS because T/D contracts below $5 million
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New Developments
 Proposed FAR Rule:
 Require PARs for all FSS and ID/IQ orders in excess
of SAT ($100,000)
 Some agencies already perform PARs on larger FSS
and ID/IQ orders
 PARs must identify evaluator
 FAR Case 2006-022, Attachment E
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