Past Performance Information: New Federal Website Made Available To The Public

The Federal Acquisition Regulation (FAR) is a principal set of rules governing the procurement of property and services utilized by governmental agencies. Under 1994’s Federal Acquisition Streamlining Act (FASA), federal agencies are also required to evaluate a bidder’s past performance as a criterion for competitively negotiated proposals. In the almost 20 years since FASA’s enactment, past performance has become the single most important evaluation factor for federal government procurement other than monetary value.

What is this “past performance information” then? FAR defines it as “relevant information for future selection purposes regarding a contractor’s actions under previously awarded contracts.” Such evaluation involves analyzing a bidder’s previous proposal with criteria excluding price, such as quality of goods and services or the bidder’s previous administration of delivery rate. Past performance information includes, for example:

  • The contractor’s records of conforming to contract requirements and standards of good workmanship and of forecasting and controlling costs;
  • Adherence to contract schedules, including administrative aspects of the performance;
  • Records of integrity and business ethics;
  • History of reasonable, cooperative behavior, business-like concern for the customer’s interest, and commitment to customer satisfaction.

As of April 15, 2011, the Federal Awardee Performance And Integrity Information System (FAPIIS), a web-based application for collecting performance information, will be made available to the public. This site will show actions previously taken against contractors in the course of their work with the government. Contracting officers will be able to use the database to review company’s past behavior before awarding a contract. According to the General Services Administration, which houses the database, the database will contain contract terminations, determinations of defective or false pricing data and contractor self-reporting of criminal, civil and administrative actions. According to Kathleen Turco, Associated Administrator of the GSA’s Office of Governmentwide Policy, the government intends for FAPIIS to “submit the support and assist federal government efforts to make informed spending decisions and to reduce risk,” like the Better Business Bureau of contracting, essentially.

However, contractor trade associations have voiced some concerns. For example, the database could be misused or misinterpreted or proprietary information could be inadvertently posted. There are no guidelines regarding how information should be used to determine whether companies are responsible or not, nor are there guidelines for supplying contractors with copies of performance evaluations – or time to respond to them.

Trade associations are particularly concerned about unresolved legal disputes. Contractors must be given ample opportunity to respond to negative or adverse performance information before such information should be considered on any subsequent procurement. The concern arises that contractors will be downgraded for information on the site that is inaccurate or unfair. Negative reviews can potentially devastate a contractor, who may have little to no opportunity to mitigate the impact of a negative review on future awards. Without safeguards built in to ensure that the FAPIIS site data is fair and accurate, it is likely to be misused and become the subject of future controversy.

The Bidder Responsibility Statute RCW 39.04.350 and the issues that subjective evaluation creates for contractors and taxpayers will be discussed in a blog post later this month.

Read more about FAPIIS here.

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