In a recent bid protest decision concerning the Department of Energy’s award of legacy management support services award contract, GAO held that the agency acted reasonably when evaluating protestor WSS’s past performance on the incumbent contract by disregarding two Contractor Performance Assessment Reports (“CPARs”), which reflected “exceptional” performance, in favor of a detailed award fee determination reflecting a mix of good and marginal performance. GAO determined that the agency acted reasonably in disregarding the CPARs because
not only were the reports ‘erroneously written and approved by a government employee without the authority or knowledge of the contracting officer and contracting officer representative,’ they were prepared by a person unfamiliar with the contractor’s performance.”
GAO’s discussion of this procurement reflects some serious problems with the CPAR system used for evaluating prime contractor performance on federal contracts.
During and after the performance of federal contract, the agency rates the prime contractor’s performance on a CPAR – report card reflecting grades and comments on the contractor’s performance. Each final CPAR is stored in a database that is accessible to other federal agencies, and when an offeror submits a proposal for a federal contract, the procuring agency will usually evaluate the offeror’s past performance by reviewing the offeror’s recent and relevant CPARs in the database. It is not unlike how college admissions are based, in part, on a review of an applicant’s high school grades. Past performance reviews (particularly CPAR ratings) are critical to winning or losing contracts – they are often the key factor in an agency’s contract award decision. In fact the White House has recommended that “the weight assigned to past performance be at least 25 percent of the total evaluation; or, equal to the other non-cost evaluation factors to ensure significant consideration is given to past performance.” And some agencies have made this weighting mandatory (see NFAS 15.304). As a result, agencies have a legal and ethical obligation to complete fair, accurate, consistent and informed CPARs. If the agency fails to carry out this obligation, the playing field is no longer equal on future procurements.
In the case of WSS, the agency completed uniformed CPARs for the incumbent contract, apparently resulting in WSS receiving higher CPAR ratings than it deserved. By coincidence, the prior contracting officer for the incumbent contract, who knew the CPARs were inaccurate, was also a member of the source selection board for the procurement at issue. As a result the source selection board knew that the CPARs were inaccurate and should be disregarded.
But what if the prior contracting officer had not been on the source selection board? Likely, the source selection board would have had no idea that the CPARs were uniformed and inaccurate, and as a result the source selection board would have credited WSS with the undeserved exceptional CPAR ratings. This result would have been entirely unfair to contractors competing against WSS for the contract. Yet, it is likely that in any other procurement situation this is exactly what would have happened.
How can source selection officials avoid having a procurement tainted by uniformed and inaccurate CPAR? One way is requiring offerors to submit past performance questionnaires (PPQs) for any example projects they want considered – then in evaluating the offeror’s past performance, the source selection team can use the PPQ ratings to confirm the legitimacy of the CPAR ratings for those projects.
The importance of CPAR ratings cannot be understated, and a negative rating can significantly to impair a contractor’s future business. Thus contractors can, and should, take steps to prevent being unfairly penalized by uniformed and inaccurate CPAR ratings. If the CPAR inaccurately depicts the contractor’s performance in a negative manner, the contractor should appeal the CPAR rating, and, if necessary, consider challenging the rating as a part of a claim (and, should that claim be denied, consider taking the matter to the Court of Federal Claims).