The Importance of Past Performance
Past performance is now as important as ever, and contractors need to stay abreast of the latest developments regarding the government’s new contractor and integrity past performance database, discussed in detail below, as well the status of their own past performance records, to ensure success in future procurements.
The Government Accountability Office (GAO) recently found that past performance is the most frequently selected non-cost evaluation factor used in contracts using a best value tradeoff process, finding that 82 percent of the contracts surveyed used the past performance factor (compared to the technical factor, which GAO found was used in only 65 percent of the contracts surveyed).1 Despite the importance of past performance in evaluations, the government has not possessed an adequate across-the-board database to provide contracting officials with reliable, up-to-date past performance information for contractors. A recent GAO report reveals this concern, stating that contracting officials experience difficulty in identifying differences between contractor proposals because contractors often provide their best performance examples and the government lacks data to evaluate additional contractor projects. Another GAO report that examined the Past Performance Information System (PPIRS), which is available to federal acquisition professionals for their use in award and responsibility determinations, concluded that this system lacked accountability or incentive to agencies to document assessments in the system, lacked standard evaluation factors and rating scales across agencies, and lacked central oversight to ensure the adequacy of information fed into the system.2
In response to these concerns, among others, the government has created the Federal Awardee Performance and Integrity Information System (FAPIIS). It is important to note that this new system will keep past performance and responsibility-type information for contractors, as well as integrity information, for five years, as opposed to the three-year time period used by PPIRS. This information will be required reading for contracting officers in selecting firms for award.
Federal Awardee Performance and Integrity Information System
Section 872 of the Duncan Hunter National Defense Authorization Act of 2009 (Public Law 110-417), enacted on October 14, 2008, required the development and maintenance of an information system that contains specific information on the integrity and performance of covered federal agency contractors and grantees. FAPIIS was developed to address these requirements. It is a distinct application that is accessed through the Past Performance Information System (PPIRS) and is available to federal acquisition professionals for their use in award and responsibility determinations. FAPIIS provides users access to integrity and performance information from the FAPIIS reporting module in the Contractor Performance Assessment Reporting System (CPARS), proceedings information from the Central Contractor Registration (CCR) database, and suspension/debarment information from the Excluded Parties List System (EPLS).
Contracting officers are required to review FAPIIS before the award of a contract above the simplified acquisition threshold. The information in FAPIIS can impact awards in two ways – the evaluation of past performance and the determination of a company’s responsibility.
New Requirements for Contractors to Report Information to FAPIIS
Contractors with contracts exceeding $500,000, and which incorporate FAR clause 52.209-8, “Updates of Information Regarding Responsibility Matters,” must enter data into FAPIIS semi-annually during the duration of their covered contracts. The FAR also now requires an offeror with greater than $10 million in current federal contracts and grants to certify that their FAPIIS entry is accurate and complete when responding to solicitations where the resulting contract is expected to exceed $500,000.
Specifically, contractors must report:
- criminal convictions
- civil liability
- administrative proceedings, and
Watch Out for the Internet!
The 2010 Supplemental Appropriations Act, signed by President Obama on July 29, 2010, requires that nearly all of the information contained in FAPIIS be made available to the public on the Internet. Specifically, the act provides that the General Services Administration will post to the Web all FAPIIS data except contractor past performance reviews.
Recommendations for Contractors
Contractors need to keep track of their past performance and other conduct that may bear upon their responsibility, including all of the information concerning the contractor and its past performance that is contained in any government database or in news articles, or that is obtainable by an Internet search of the contractor. This way, contractors can act immediately to correct any information that may be inaccurate or misleading.
Contractors must be proactive in this regard and must always be prepared to address any legitimate adverse information, rather than hope it will not be discovered. Given the broader reporting requirements and the scope of the FAPIIS database, the likelihood is that a contractor’s performance and conduct will be, if not publicly available, known to contracting officials as they make award decisions.