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.