Two weeks is not much time to draft and finalize an important document. Two weeks would feel even less adequate if the document is a contractor’s primary opportunity to rebut or explain a negative past performance evaluation. But two weeks is now precisely the period of time available to contractors to comment on a negative performance review before the review becomes accessible by all federal procurement personnel. Under a new Federal Acquisition Regulation (FAR) rule effective July 1, federal contractors will have less than half the time previously provided for commenting on past performance reviews submitted by their government customers. An amendment to FAR 42.1503 has reduced the pre-publication period for contractor comments from 30 calendar days to 14.1 The new rule unquestionably puts the onus on contractors to be prepared in advance for the drafting and submittal of comments that can mitigate the effects of a negative past performance report.
Authorized procurement personnel can access non-public past performance information on federal contractors via the Past Performance Information Retrieval System (PPIRS), available at www.ppirs.gov. 2 Available information includes past performance evaluations submitted to the Contractor Performance Assessment Reporting System (CPARS) at www.cpars.gov. The new rule indicates that its purpose is to make past performance information available to procurement officials on PPIRS as soon as possible, while affording contractors up to two weeks to submit relevant comments, in accordance with applicable statutes.3
Once agency personnel post a past performance review on CPARS, the relevant contractor receives an automated notification that the comment period is open. Under the final rule, the CPARS evaluation will automatically transfer to PPIRS not later than 14 days after the contractor receives such notification. 4 In other words, after no more than 14 days – regardless of whether the contractor has utilized this period to submit comments – the past performance evaluation will be immediately available for review by federal procurement officials.
Despite several public comments objecting to the shor tened period, the final rule makes clear that the underlying statute provided the FAR Councils with “no latitude” to deviate from the mandated 14 days. 5 Moreover, given recent Congressional hearings that emphasized how the Government too often fails to identify contractor failings in past performance reports, 6 agencies will likely feel significant pressure to submit negative performance reviews when they believe that a contractor has failed to meet contractual obligations. Although the final rule provides that the Government shall update PPIRS with any contractor comments received after the 14-day period, 7 it goes without saying that the longer a contractor’s negative past performance information remains in PPIRS without contractor comment, the higher the potential for negative consequences in subsequent procurements.
To that end, contractors should consider implementing procedures that will expedite the process for commenting on agency performance reviews, such as:
- Immediately review CPARS to c onfir m that the contractor’s profiles contain the correct contact information so that the most appropriate employee receives the automated notice of a past performance report.
- Keep open lines of communication between on-site contract employees and administration personnel. This will ensure that those tasked with drafting comments on past performance evaluations timely learn about negative performance and understand all relevant circumstances.
- To help expedite the drafting and submittal of comments, consider creating a standard template or checklist for explaining negative contract performance.
- Anticipate potential negative past performance reviews and begin drafting a rebuttal even before agency personnel submit their report to CPARS.
- Even if the comments are not ready prior to expiration of the 14-day period, complete and submit them as soon as possible.
Taking preemptive actions such as these can facilitate the submittal of comments within or close to the 14-day period. A timely rebuttal, explanation, or summary of relevant circumstances can help ensure that procurement officials get the full story once the past performance review goes public.