Government Contracts

A proposed rule published on August 7, 2013 will limit the time periods in which (1) contractors are allowed to comment on negative past performance evaluations posted via the Contractor Performance Assessment Reporting System (“CPARS”), and (2) past performance evaluations must be available to source selection officials through the Past Performance Information Retrieval System (“PPIRS”). Currently, contractors have a minimum of 30 days for contractor comments in response to the government’s past performance evaluations, and past performance evaluations are generally not made available until after the contractor’s comments have been made.

Under the new proposed rule contractors will be provided a maximum of 14 days to submit comments and past performance evaluations must be made available to source selection officials on PPIRS not later than 14 days after the evaluation was transmitted to the contractor, whether or not contractor comments have been received.

As a result of these proposed rule changes, contractors must be vigilant in responding to and, if necessary, rebutting negative past performance evaluations during the greatly reduced 14-day suspense period before such evaluations are made publicly available. A contractor’s failure to diligently monitor and respond to past performance evaluation reports may have significant negative repercussions on pending and future procurements. In the event a contractor fails to submit comments within the 14-day comment period, the proposed rule still permits a contractor’s comments to be added after the evaluation has been posted on PPIRS. Planned system changes to the PPIRS will also allow the government to revise a past performance evaluation if the government determines that corrections should be made after the 14-day period has expired.

The proposed rule implements section 853 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239, enacted January 2, 2013) and section 806 of the NDAA for FY 2012 (Pub. L. 112-81, enacted December 31, 2011, 10 U.S.C. 2302 Note). Interested parties should submit written comments to the Regulatory Secretariat on or before October 7, 2013 to be considered in the formation of the final rule. Comments may be submitted via the Federal eRulemaking portal (!home) by searching for “FAR Case 2012-028”. Select the link “Submit a Comment” that corresponds with “FAR Case 2012-028”. Follow the instructions provided at the “Submit a Comment” screen.