CONTRACTOR PERFORMANCE ASSESSMENT REVIEWS – CPARS, PPIRS, and FAPIIS

1. TIDEWATER GOVERNMENT INDUSTRY COUNCIL www.tasc-tgic.org CONTRACTOR PERFORMANCE ASSESSMENT REVIEWS – CPARS, PPIRS, and FAPIIS TGIC TRAINING PROGRAM August 18, 2015 Christopher T. Page Terence Murphy Kaufman & Canoles Kaufman & Canoles 757.259.3847 757.624.3178 ctpage@kaufcan.comtmurphy@kaufcan.com

2. IMPORTANT NOTE The contents of this presentation are intended for general information only and should not be construed or relied upon as legal advice nor as a legal opinion on any specific facts or circumstances.

3. Introduction • Statutory Requirements • CPARS • PPIRS • FAPIIS • Use of Past Performance Questionnaires • Challenging Past Performance Evaluations • Past Performance Protests

4. Confusion Continues • Past Performance Evaluation “alphabet soup” has proven frustrating to industry

6. Past Performance Requirements • Federal Acquisition Streamlining Act of 1994 (“FASA”) • Requires agencies to evaluate contractor past performance – in competitively negotiated awards • Designed to mirror private industry practice of awarding companies based on past performance • Office of Federal Procurement Policy (“OFPP”) promulgated regulations re: contractor performance information in FAR Subpart 42.15

7. Evaluation Thresholds • FAR Subpart 42.15 • Agencies generally required to evaluate performance on contracts valued in excess of $150,000 • $30,000 for architect / engineer • $650,000 for construction contracts • IDIQ contracts considered together for threshold • In special circumstances – contracts below threshold may be evaluated (extraordinary good or bad performance) • However, content of evaluations largely left to agency discretion

8. CPARSOverview • The FAR requires agencies to submit past performance information for use in future source selection purposes to a centralized database called the Contractor Performance Assessment Reporting System (“CPARS”). FAR 42.1502(a).

9. CPARSOverview • Web-based system that collects individual automated contractor performance assessment ratings (“CPARs”) – akin to contractor “report cards” • CPARS process establishes procedures for collection and use of Past Performance Information (“PPI”) for all contracts exceeding the applicable thresholds • Available to government source selection officials • Available to contractors to review and comment on information contained therein • NOT available to public

10. CPARSObjectives • Support best value source selection decisions – award proven performers (FAR Part 15) • Up to date documentation of contractor’s ability to meet requirements (FAR Part 42) • Motivate improved contractor performance • Communication between government and contractor • series of checks-and-balances to facilitate the objective and consistent evaluation of contractor performance • Determine prospective contractor responsibility (FAR Part 9)

11. CPARSAccess • Granted through government Focal Points (government employees tasked with entering contract information into CPARS) • By definition, CPARS information is Sensitive But Unclassified (“SBU”) • To protect the security of CPARS information, all actual data entered into and retrieved from the application is encrypted • Treated as “Official Use Only / Source Selection Information” (for FOIA exemption purposes)

12. CPARSAccess • Disclosure of CPAR data to any contractor, including advisory and assistance contractors, other than the contractor that is the subject of the report, or other entities outside the Government, is strictly prohibited

13. CPARSResponsibilities • Agency • Oversee implementation and use of CPARS • Department Point of Contact • Obtain Department Point of Contact access to CPARS • Assign Agency Points of Contact • Agency Point of Contact • Coordinate w/ Department POC to obtain Agency access to CPARS • Provide metrics for management • Contracting Office • Establish procedures for CPARS implementation • CPARS Focal Point • Register all new contracts/orders

14. CPARSRoles • Focal Point • Overall support for the CPARS process for a particular organization, to include registering contracts, set up and maintenance of user accounts, and general user assistance • Assessing Official Representative (AOR) • Manually registering contract information for specific contracts/orders within 30 calendar days after award • Providing a timely, accurate, quality, and complete narrative • Assessing Official (AO) • responsible for contracting or overall program execution and is responsible for preparing reviewing, signing, and processing the CPAR

15. CPARSRoles • Designated Contractor Representative • Receive the Government evaluation from the AO • Review/comment/return the evaluation to the AO within 60 calendar days • Request Reviewing Official review • Reviewing Official (RO) • Provides check – and – balance where disagreement between AO and contractor • Review and sign evaluation when contractor indicates non-concurrence w/ CPAR • Provide narrative comments to supplement AO

16. CPARSWorkflow

17. CPARSTimeline • 30 days of contract award • Basic contract information registered • 335 days after contract award • Evaluation appears on AOR/AO “To Do” List • 365-485 days after contract award • AOR/AO enters evaluation ratings and narratives • AO sends evaluation to contractor

18. CPARSTimeline • 7 days from contractor receipt of evaluation • Contractor may request meeting to discuss CPAR • Days 1-14 after evaluation sent to contractor • Contractor may send comments • If contractor sends comments and AO/RO closes – evaluation send to PPIRS • Day 15 after evaluation sent to contractor • Available in PPIRS w/ or w/o contractor comments • Days 15-60 after evaluation sent to contractor • Contractor may send comments if none previously provided

19. CPARSTimeline • Day 61 after evaluation sent to contractor • Evaluation returned to AO • Contractor locked out and may not provide comments • Day 61 after evaluation sent to contractor; day 120 after end of period of performance • If contractor concurs, either: • Close evaluation (updated in PPIRS) • Modify and close evaluation • Send evaluation to RO • Modify and send to RO

20. CPARSTimeline • Day 61 after evaluation sent to contractor; day 120 after end of period of performance • If contractor does not concur, either: • Send eval to RO (updated in PPIRS as pending) • Modify and send to RO • Prior to day 121 after end of period of performance • RO provide comments and close evaluation • Evaluation updated in PPIRS with pending marking removed

21. CPARSInterim Reports • FAR 42.15 requires interim CPAR for all new contracts for all business sectors meeting applicable thresholds w/ period of performance greater than 365 days. • Interim CPAR also required at least every 12 months throughout entire period of performance • Not cumulative – only assesses performance since last evaluation • Accessible by Contracting Officers

22. CPARS2014 Merge Release • July 1, 2014 - Single CPARS Module to evaluate all types of contracts • Construction • Previously Construction Contractor Appraisal Support System (“CCASS”) • Architect-engineer • Previously Architect-Engineer Contract Administration Support System (“ACASS”) • Non-systems (services, operations support, IT) • Systems

23. CPARSMerge Release • Standardizes contractor past performance evaluation process across ENTIRE Federal government • Single evaluation form • Single set of evaluation areas • Single workflow process • FAPIIS Module still part of CPARS application

24. CPARSEvaluation Form • Separate Tabs for: • Contractor Name/Address • Contract Information • Miscellaneous Information • Small Business Utilization • Ratings • Assessor • Contractor Rep • Original Ratings • Modified Ratings • Reviewer

25. CPARSRating Areas • Quality • Product Performance Relative to Contract’s Performance Parameters • Performance in Terms of Contract’s Quality Objectives • Use Quantitative Indicators Wherever Possible • Contractor’s Management of the Quality Control Program • Quality of the Work or Service

26. CPARSRating Areas • Schedule • Timeliness of Delivery • Timely Completion of Contract/Order • Milestones • Timely Completion of Administrative Requirements

27. CPARSRating Areas • Cost Control • Forecasting Cost • Managing Cost • Controlling Cost • Overrun? • Underrun? • Not Required for Fixed Price Contracts/Orders

28. CPARSRating Areas • Management • Integration and Coordination of Activity • Problem Identification • Corrective Action Plans • Reasonable and Cooperative Behavior • Customer Satisfaction • Subcontract Management • Program Management • Management of Key Personnel

29. CPARSRating Areas • Utilization of Small Business • Compliance with Terms and Conditions for Small Business Participation • Achievement of Small Business Subcontracting Goals • Good Faith Effort to Meet Small Business Subcontracting Goals

30. CPARSRating Areas • Proposed Rule: • Implements regulations adopted by Small Business Administration in 2013 and amends FAR 19.704 and 52.219-9 • Requires all small business subcontracting plans include assurances that “the offeror will make a good faith effort to acquire articles, equipment, supplies, services, or materials . . . from the small business concerns that the offeror used in preparing the bid or proposal, in the same or greater scope, amount, and quality used in preparing and submitting the bid or proposal.” • If not – prime contractor must provide written explanation to CO w/i 30 days of contract completion • Noncompliance also may be counted against the contractor “in any past performance evaluation of the Contractor.”

31. CPARSRating Areas • Regulatory Compliance • Compliance with Regulations and Codes • Financial • Environmental • Labor • Safety • Reporting Requirements

32. CPARSGrading Scale

33. PPIRSOverview • After information is entered into CPARS, agencies awarding new contracts are required to use the Past Performance Information Retrieval System (“PPIRS”)to access the past performance information that agencies previously uploaded to CPARS • Central repository for CPARs including contractor comments • Also receives other statistical information on smaller value contracts • Used for source selection purposes

34. PPIRSOverview • Houses adverse actions, including: • (i) a non-responsibility determination; (ii) termination for cause; (iii) termination for default; (iv) defective pricing; (v) a determination of contractor fault; (vi) a determination that the recipient is not qualified; (vii) a termination for material failure to comply; and/or (viii) entry into an Administrative Agreement to resolve a suspension or debarment proceeding. • Adverse actions in PPIRS are eventually made public through submission to FAPIIS

35. PPIRSModules • PPIRS – RC (Report Card) • Federal regulations require that report cards be completed annually by customers during the life of the contract • Query capability for authorized users to retrieve report card information detailing a contractor's past performance • Accessible at www.PPIRS.gov

36. PPIRSModules • PPIRS – SR (Statistical Reporting) • Provides past delivery and quality performance information for commodities including contracts under the thresholds established in the PPIRS report card system • Criteria available at: https://www.ppirs.gov/pdf/PPIRS-SR_DataEvaluationCriteria.pdf • Uses algorithm to compare data

37. PPIRSAccess • Restricted to individuals working on source selections, to include contractor responsibility determinations • Contractors may view only their own data • Contractor must be registered in the System for Award Management (SAM) system and must have created a Marketing Partner Identification Number (MPIN) in the SAM profile to access their PPIRS information • PPIRS User Guide - https://www.ppirs.gov/pdf/PPIRS-Awardee_UserMan.pdf

38. PPIRSRecent Change • As of July 01, 2014 ALL evaluations will be made available in the PPIRS for Source Selection Officials within 15 days from the date of delivery when the Government sends the evaluation to the Contractor for comment • Available whether or not contractor comments have been submitted and whether or not they have been closed by the government • The purpose of this change is to make past performance evaluations available to Source Selections Officials sooner and without the need for AO intervention or closure • Contractors must stay on top of timing for submission of comments

39. PPIRSRecent Change • CPARS will submit evaluations to PPIRS on a daily schedule. Evaluations will be submitted to PPIRS on: • Calendar day 15 following the AO’s evaluation date; • When Contractor comments are provided during the 60 calendar day timeframe; • When the AO modifies the evaluation and/or sends it to the RO; • When the AO/RO closes the evaluation. • Example: If the evaluation was submitted to PPIRS on calendar day 15 without Contractor comments, and on calendar day 17 the CR entered comments and sent the evaluation to the AO, the Contractor’s comments would be reflected in PPIRS the next day.

40. FAPIISOverview • Federal Awardee Performance and Integrity Information System ("FAPIIS") • Operational since April 2010 • Consolidated database that centralizes and expands upon information regarding government contractors that is available to contracting officers when making responsibility determinations • Designed to enhance the Government’s ability to evaluate the business ethics and quality of prospective contractors competing for Federal contracts

41. FAPIISOverview • FAPIIS, itself, is a distinct “module” located within the PPIRS • Provides a “one-stop shop” for contracting officers to assess government contractor integrity and review past performance data • Contains links to all information contained in the primary existing systems into which government contractor information is imputed: PPIRS, the Excluded Parties List System (“EPLS”), the Contractor Performance Assessment Reporting System (“CPARS”), and the Central Contractor Registry (“CCR”)

42. FAPIISOverview • Does not alter the type of information collected by those systems • Collects and organizes this information from numerous sources: • Contracting Officers who are to provide non-responsibility determinations and contract terminations • Suspending and Debarring Officials who are to provide information on administrative agreements concerning the resolution of suspensions or debarments • Agency Procurement Officials who are to provide information regarding contractor past performance • Government Contractors who themselves are required to report information concerning “criminal convictions, civil liability, and adverse administrative actions

43. FAPIISScope • (1) government contractor performance and past performance reviews; • (2) contracting officer non-responsibility determinations and contract terminations for default or cause; • (3) agency defective pricing determinations; • (4) administrative agreements relating to the resolution of suspensions or debarments; and • (5) civil, criminal, and administrative proceedings in which government contractors received adverse outcomes

45. FAPIISLogistics • Information Reporting • Existing systems within the Government are linked to FAPIIS. These systems are continuously in receipt of new information from suspension and debarment and agency procurement officials • Agencies to ensure information is reported directly to FAPIIS within 3 working days after a contracting officer issues • a final termination for default for cause or default notice • a final determination that a contractor has submitted defective cost or pricing date • Conversion of termination for convenience to termination for default • Suspension and debarment officials are to submit information regarding administrative agreements directly to the FAPIIS

46. FAPIISContractor Reporting • Applies to an offeror “submitting a proposal on a Federal contract over $500,000 and having more than $10 million in active contracts and grants as of the time of proposal submission • Contractors meeting criteria are required to: • designate representatives responsible for the actual submission and receipt of FAPIIS information and • submit directly to FAPIIS and ‘update on a semi-annual basis throughout the life of the contract’ information relating to criminal, civil or administrative proceedings occurring within the last five years relating to performance of a Federal contract or grant

47. FAPIISUse of Information • Any information in FAPIIS, including linked information, may be used to: • Make responsibility determinations • CO to consider all information in FAPIIS • Evaluate offerors’ past performance • FAPIIS incorporated into procedures addressing agency evaluations of past performance in FAR 42.1503 since there may be information in FAPIIS, such as terminations for default or cause and defective pricing assessments, that is not in PPIRS but still may be appropriately used, along with information in PPIRS to evaluate an offeror’s performance

48. FAPIISUse of Information • Imposes additional requirements that contracting officers must • (1) “review the information in FAPIIS” when making responsibility determinations for contracts in excess of “the simplified acquisition threshold,” and • (2) detail the manner by which the officer “considered” FAPIIS information in making such determinations

49. FAPIISUse of Information • Review: • Contracting officers “shall consider all information in FAPIIS and other past performance information.” 75 Fed. Reg. 14065 (Mar. 23, 2010) • However, the regulations provide little guidance as to the manner in which contracting officers should review information. • The regulations merely indicates that contracting officers “shall use sound judgment in determining the weight and relevance of the information contained in FAPIIS . . . .” • Results in broadened discretion

50. FAPIISContractor Rights • Contractors are entitled to ‘timely notification’ when information about them is posted in the FAPIIS module • Contractors registered with the SAM can post comments on any information that has been posted by the Government in the FAPIIS module • Different than the rebuttal process for past-performance information as specified in FAR 42.1053(b) • Remains part of FAPIIS record for 6 years (unless revised by contractor)