Past Performance Information Retrieval System ( PPIRS ) and Past Performance Issues
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1 Past Performance Information Retrieval System ( PPIRS ) and Past Performance Issues Daniel S. Herzfeld Counsel daniel.herzfeld@pillsburylaw.com July 22, 2010 Pillsbury Winthrop Shaw Pittman LLP
2 Past Performance As Evaluation Factor in Source Selection Generally, past performance shall be evaluated in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold. FAR (c)(3)(i). Simplified Acquisition Threshold is generally $100,000. FAR (Contingency Operation or Defense Against Nuclear/Biological/Chemical/Radiological Attack - $250,000 within U.S.; $1 million outside) Frequently a factor in General Services Administration s Federal Supply Schedule (i.e. Multiple-Award Schedule) Orders. FAR (c)(3)(1). 1 PPIRS
3 What is the Past Performance Information Retrieval System? PPIRS PPIRS is a centralized database of past performance information. Agencies shall submit past performance reports electronically to the Past Performance Information Retrieval System (PPIRS) at FAR (c). 2 PPIRS
4 PPIRS Centralizing Past Performance Data FAPIIS Accessed through PPIRS Other Agency Databases Terminations for Default (Proposed Rule) PPIRS National Institutes of Health Contractor Performance System Contractor Performance Assessment Reporting System (CPARS) 3 PPIRS
5 Past Performance Evaluations Must Be Prepared By Agencies. FAR When Is An Agency Required To Prepare Evaluation? Completion of Contract or Order. Interim Evaluations If contract performance exceeds one year. What Types Of Contracts & What Thresholds? Construction Contracts of $550,000 or More. Federal Supply Schedule Orders Exceeding Simplified Acquisition Threshold. Single Agency Task Orders or Delivery Orders Exceeding Simplified Acquisition Threshold Where More Useful Than Evaluation of Overall Contract. Architect-Engineer Contracts of $30,000 or More. All Other Contracts Exceeding Simplified Acquisition Threshold. 4 PPIRS
6 PPIRS - You Can Lead a Horse to Water... Agencies must prepare evaluations. BUT... They don t have to actually use them in source selection decisions: Language was revised to delete the phrase For source selection purposes in order to clarify that this language deals with retention of past performance information rather than required procedures to be utilized in a source selection. 74 Fed. Reg , (July 1, 2009). 5 PPIRS
7 PPIRS Or Other Sources May Be Used e.g. FAR (b)(3)(ii) PPIRS; Contracting Officer s Knowledge; Customer surveys; Past Performance questionnaires; or Any other reasonable basis. 6 PPIRS
8 How do contractors see and comment on evaluations in PPIRS? A Contractor can gain access to the past performance ratings in PPIRS through its Contractor Central Registration 7 PPIRS
9 PPIRS What It Should Look Like When You Get In: 8 PPIRS
10 PPIRS Assessment Reports 9 PPIRS
11 PPIRS Example of CPARS Report Card 10 PPIRS
12 Challenges to Past Performance Ratings: Agencies must allow contractors to comment on and challenge past performance ratings: Contractors shall be given a minimum of 30 days to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. FAR (b). 11 PPIRS
13 PPIRS Challenging Ratings. 12 PPIRS
14 Can you dispute a PPIRS or other Contractor Evaluation? Yes. Submit a claim under the Disputes Clause of the contract. asking for a contracting officer s final decision. FAR The Government cannot avoid the Disputes Clause as it has attempted to do with some CPARS report cards by attempting to state that the contracting officer (or a level above) is an unappealable final determination. Colonna s Shipyard, Inc., ASBCA No , 2010 WL PPIRS
15 Can you appeal or file suit to reverse the contracting officer s final decision? Yes. File Suit at the U.S. Court of Federal Claims for declaratory relief: Record Steel & Constr., Inc. v. United States, 62 Fed. Cl. 508 (2004). Todd Constr., L.P. v. United States, 85 Fed. Cl. 34 (2008) & 88 Fed. Cl. 235 (2009). BLR Group of Am., Inc. v. United States, 84 Fed. Cl. 634 (2008). Appeal to a Board of Contract Appeals Not all the Boards have concluded they have jurisdiction: Armed Services Board of Contract Appeals: Versar, Inc., ASBCA No , 10-1 BCA PPIRS
16 Can you wait to challenge finalized ratings during a bid protest? Probably Not. [A] bid protest is not the proper forum, under FAR (b), to litigate [Contractor Evaluation Form] disputes. Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed. Cir. 2005). Our bid protest forum is not the place for a firm to first complain of not having received an assessment, nor do we serve as a forum for a firm to dispute the substance of an agency s assessment of the firm s work.... Ocean Tech. Servs., Inc., B , Nov. 27, 2001, 2001 CPD 193 at PPIRS
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