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Michael11

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Can any COs or contractors with CPARS experience help clarify the right way to insert contractor comments or object to an evaluation?

Specifically, within the 14 period:

If you are not content with your evaluation and would like a sit down with the CO to voice your case, does the CO have the ability to change a rating without ever actually "non concurring" or entering contractor comments? If you enter comments, but accept the evaluation, you have lost your chance for further rebuttal correct?

If after talking with the CO you are not convinced they will alter your rating, and you would like another evaluation done by one level above the CO, must you actually select "i do not concur with this evaluation". Is it at that time you insert comments, justification for your case?

Is there a sequence of the two steps above that may be viewed most favorably in the eyes of the government? We are not prepared to fight tooth and nail for this but would like a chance for the government to hear us out and reconsider.

Any thoughts are welcome.

 

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If you're with a small business then I recommend asking your SBA rep for help.  If you're greatly concerned you may want to seek an attorney's assistance.  Otherwise you could just ask the CO of record to help.

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If you have fourteen days to respond in the CPARS system, then you have fourteen days to respond in the CPARS system.  If you talk to the contracting officer, that's all well and good, but you still have fourteen days to respond in the CPARS system -- meeting with the contracting officer or the level-above does not toll the fourteen days.

In the system, you either concur or non-concur -- either way, you can enter your own comments for the benefit of future readers.

In the system, the only way to trigger a review by the level-above is to non-concur.  If you can talk to the level-above, that's all well and good, but you still have fourteen days to respond in the CPARS system.

3 hours ago, Michael11 said:

We are not prepared to fight tooth and nail for this but would like a chance for the government to hear us out and reconsider.

Then you must act quickly -- as early as possible, try to meet with the contracting officer -- maybe you can convince him or her to withdraw the CPARS action and re-work it -- do your best, and do it quickly -- but if you are not successful, then you need to respond within the system within the fourteen days.  The Government cannot change your text, and whatever you write will be available for any future readers of the report, so you can make your case.  

My recommendation:  Remember what CPARS is all about -- a repository of information for contracting officers to use on future source selections -- don't be a cry-baby and don't be a bully, as it won't look good to contracting officers on future source selections.  Be professional.  State your disagreement with the rating and tell about the great work you did.  Tell about the favorable feedback you got from Government staffers as work progressed and how surprised you were by the CPARS rating, especially given the total absence of any negative feedback as the work progressed.  I won't give advice about whether you should concur or non-concur -- my only advice is to enter high-quality explanatory text for the benefit of the future reader to offset any damage that might be done if the reader only otherwise sees on side of the story.  Tell your story.  Remember, fourteen days.

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Thank you both for this really helpful feedback.

10 minutes ago, ji20874 said:

In the system, the only way to trigger a review by the level-above is to non-concur.  If you can talk to the level-above, that's all well and good, but you still have fourteen days to respond in the CPARS system.

This was one of the answers i was really looking for but couldn't confirm. Thank you.

IMO it's tough to see how contractors get a fair shake at this. Especially realizing how much importance is placed on the ratings in future evaluations. Too much subjectivity - one person's good is another's great which is another's satisfactory. 

 

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The CPAR system is set up to keep COs from being pressured into changing performance reports.  Once the report goes to the contractor it cannot be withdrawn and changed.  The Contractor makes thier comments and either requests review or not.  I have seen the comments section of an outstanding report read like a multi page advertisment for the company.  All the comments stay with the report.  In the case of judicial action, the Department Point of Contact (DPOC) for CPARS can request the report be placed back in draft for rewrite but this is only done in extreme cases.  If you go to the CPAR website you can find the CPAR guidebook that lays out the whole reporting system.  I believe the guide is before a sign in so anyone can access it.  

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You actually have more than 14 days to respond.

While FAR 42.1503(d) states that "contractors shall be afforded up to 14 calendar days from the date of notification of availability of the past performance evaluation to submit comments, rebutting statements, or additional information".  That does not mean that is all the time a contractor has.  Changes were made to the process a couple/few years ago.  FAR 42.1503(f) also states that "these evaluations, including any contractor-submitted information (with indication whether agency review is pending), are automatically transmitted to PPIRS at http://www.ppirs.gov. not later than 14 days after the date on which the contractor is notified of the evaluation’s availability for comment. The Government shall update PPIRS with any contractor comments provided after 14 days, as well as any subsequent agency review of comments received."  This means that you have between days 15 and 60 to submit comments.  This was changed so that at least a "pending" report is submitted to PPIRS in a timely manner and PPIRS does not have to wait for the CPARS assessment to be finalized.  Agencies do not always conduct assessments in a timely manner.  CPARS is just a feeder system to PPIRS which is the repository that is used future source selections.

I agree the only way to help get a review at a level above the CO (reviewing official) in the CPARS system is to not concur with the assessment and contact the CO to request a discussion.  I'd try to learn more about an agencies specific policy regarding the second level review.  The FAR simply states "agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency."  The comments section isn't necessarily a place for requesting a meeting, instead it is you opportunity to state why you disagree with the rating.  It will be your only opportunity to get your comments in the system.  Even if a reviewing official gets involved and the assessment is changed, the contractor does not have the subsequent ability to add comments.  I'd be professional, fact based, and provide adequate support so that an objective reader understands your side of the issue.

If you aren't already aware of it, there is training documentation/slides regarding the process on the CPARS website at https://www.cpars.gov/webtrain_tm.htm.

 

 

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In my acquisitions office it is office policy that the reviewing official be the CO's Division Director. 

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1 hour ago, Michael11 said:

one person's good is another's great which is another's satisfactory. 

 

I agree.  Having said that, the FAR does define the ratings.  I can't speak to your situation, but I suspect some COs are quick to hand out top ratings as if it were a 5 point scale on how happy you were with the contractor.  Contractor's may get used to getting "Exceptional" or "Very Good" ratings and be shocked when they get a "Satisfactory."  However, that is not how the rating system is defined by the FAR.  A Satisfactory rating is one where "Performance meets contractual requirements. The contractual performance of the element or sub-element contains some minor problems for which corrective actions taken by the contractor appear or were satisfactory."  "To justify a Satisfactory rating, there should have been only minor problems, or major problems the contractor recovered from without impact to the contract/order. There should have been NO significant weaknesses identified. A fundamental principle of assigning ratings is that contractors will not be evaluated with a rating lower than Satisfactory solely for not performing beyond the requirements of the contract/order."  To obtain a Very Good rating performance would have had to exceed contract requirements to the benefit of the government.  "To justify a Very Good rating, identify a significant event and state how it was a benefit to the Government. There should have been no significant weaknesses identified."  The FAR also provides a definition and guidance for the Exceptional rating.  

If you have objective evidence of why the rating definitions were misapplied to your rating, I'd document that in the comments section and reference the definitions from the FAR. 

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I'm satisfied that the system is reasonably fair.  No system with humans will be perfect.

But it is stupid to assume, in a later source selection, that a contractor with an Exceptional rating on a CPARS is automatically better than a contractor with a SATISFACTORY rating.

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Some interesting perspectives here.

If any Wifconers are interested, and if the powers that be would allow it, I volunteer to judge an anonymous poll of a mock CPARS scenario. Posters have to rate only the areas of Cost Control and Schedule using the standard scale from marginal to exceptional found here https://flh.fhwa.dot.gov/resources/construction/forms/wfl/documents/CPARS-Rating-Definitions.pdf. It will have only enough info to make your own determination. If you message me I will blind the results and post them on Friday. Just send me Cost Control________; Schedule__________.

Anyone interested? Here is the scenario:

IT Contractor overseeing, among other things, the migration of a new agency wide procurement system that will allow contracting personnel to more quickly generate contracting actions (mods, awards, RFPs) and allow funds to be obligated seamlessly from the agency budget office. The award was T&M type with a value of $22,500,000. Upon completion of the work there was $1,975,000 remaining on the only T&M CLIN used in the award document.

Additional background:

Contractor submitted all deliverables on time. During the peak of the system migration contractor met all fast-tracked deadlines. In pivotal moments of the transition, when an influx of supplier personnel and project coordination was required, contractor did not skip a beat.

Contractor delivered the system migration on type and within budget. Agency leadership was frequently briefed on status of major contract deliverable and anticipated network disruptions that were unpreventable as part of the migration. Contractor was savvy in their negotiations with vendors and nimble to work around federal holidays.  

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Bob, I suggest moving this thread from “Contract Award” to “Contract Administration” for future reference search’s. 

 

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Michael11,

Since we're talking about the cost control factor, did the contractor give the required notice 30 days before crossing the 85% threshold?  If not, that failure by itself could result in an unsatisfactory rating (for the cost control factor).

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That’s interesting ji. 

For a project delivered on time and under budget, absence of a limitation of cost notice constitutes a singular problem of such serious magnitude that it could alone render a unsatisfactory rating? 

Mind me asking if there is a citation for that? 

It seems to me that if you are adequately forecasting and managing cost via status reports or the like, and ultimately managing the budget responsibly (IMO the most important), that funding notice oversight could be a singular event (or “minor problem”) and not a significant weakness. 

The definitions state that an unsatisfactory rating would require multiple significant events of failure - I think your rating would be a bit extreme.

Appreciate your thoughts ji!

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To the contractors getting exceptional ratings in cost control: what are you doing from a contract,finance, budget perspective to warrant that rating?

How are you exceeding many contract requirements to the government’s benefit?

 

 

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23 minutes ago, Michael11 said:

The definitions state that an unsatisfactory rating would require multiple significant events of failure

Wrong.  The definitions allow for a singular problem to alone result in an unsatisfactory rating.  See the note for unsatisfactory in Table 42-1 in FAR Subpart 42.15.

And the boards and courts are seemingly unanimous that a contractor's failure to give a notice such as we are describing is a serious failure.  The citation for the notice for T&M contracts is FAR 52.212-4 Alt I para. (i)(2) for commercial and FAR 52.232-7(d) for non-commercial.

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Right and that singular problem must constitute such serious magnitude that it alone gets you an unsatisfactory.

A lapsed LOC letter is THAT serious?

Note you can not meet ‘some’ contract requirements, which is what I consider an LOC notice, and still be given a ‘marginal’. 

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13 minutes ago, Michael11 said:

Right and that singular problem must constitute such serious magnitude that it alone gets you a satisfactory.

Wrong.  "A singular problem, however, could be of such serious magnitude that it alone constitutes an unsatisfactory rating."  That's a direct quote from Table 42-1.

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Based on my experience, contractors commonly assume that they should automatically receive a rating above Satisfactory because they've exceeded the performance standards in the contract.  The problem with this is that the justification for Very Good or Exceptional ratings require three things -- see Table 42-1 in the FAR:

1.  Identification of a significant event (or multiple events)

2. Statement of how that event was a benefit to the Government

3. No identified significant weaknesses

According to this standard under the Schedule rating area, for instance, a deliverable you provide X days early may not merit an above Satisfactory rating if the deliverable was not a significant event or, if it was a significant event, did not provide a benefit to the Government.  

If you disagree with the Assessing Official's ratings, I don't think it's effective to assume that the Assessing Official just plain got it wrong because chances are they won't agree with you and neither will the Reviewing Official.  It's more effective to assert that either the information included in the narrative was not factual (if that is indeed the case) or there was supplementary information not considered.  In either of those cases, identify the significant event and state its benefit to the Government. 

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2 hours ago, ji20874 said:

Wrong.  "A singular problem, however, could be of such serious magnitude that it alone constitutes an unsatisfactory rating."  That's a direct quote from Table 42-1.

Sorry that was a typo ji. It should have said unsatisfactory. I was looking at the same table.

My opinion is that while administering a fully funded award that ultimately was delivered on time and under budget, and was at no time at a risk of overrun to the government, I do not consider that a serious failure. Sure, the government didn’t receive that loc notice to reassure them you could  perform within the ceiling price, but I still think that is extreme.

I might think differently if it was in an overrun situation and that notice could have helped remedy the situation or allow the government time to prevail in some way.

I agree the notice is important. At worst i would give that contractor a marginal though.

There are COs out there that don’t even know what a LOC notice is or when to expect one.

All of which is to say I still think the process is too subjective.

 

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I'm not saying that it MUST result in an unsatisfactory rating -- but it can.  

Yes, the process is subjective.  I'm okay with that.  In the scenario you described, a contractor might receive stellar ratings for the other factors, and a non-stellar rating for cost control.  That would be fair, and a future contracting officer making a source selection decision will be able to read the CO's narrative and the contractor's rebuttal.

There are contractors out there who don't know what a LOC notice is or when to send one.  I try to help them understand.

By the way, as a contracting officer, I am VERY serious about these notices -- I make it clear to contractors at contract kick-off meetings and so forth.  To me, a contractor's failure to give the notice robs me of the privilege of planning and taking action and protecting the Government and so forth -- I recall reading an excellent decision somewhere that paints this picture.  At the boards of contract appeal, the notice requirement is strictly construed and enforced.  A contractor's stellar technical and schedule performance does not obviate the notice requirement, and the notice requirement applies at 30 days before 85%, not at 30 days after 100%.

So yes, on one of my contracts, I'll hammer a contractor that fails to provide a notice, because it is important to me.  If I did it to you, you could rebut and say that it isn't a big deal.  And your word would be the last word.  Life goes on.

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On 11/15/2017 at 6:07 PM, ji20874 said:

But it is stupid to assume, in a later source selection, that a contractor with an Exceptional rating on a CPARS is automatically better than a contractor with a SATISFACTORY rating.

You are in a town you're not familiar with and in front of two pizza places. One has a Yelp score of 4.7 and the other 3.2. Is there any chance you say to yourself, I am going to read the 64 comments at the 3.2 restaurant, think it over, and then decide? Probably not. Me? I am going straight for the 4.7 because I automatically think it will be better.

ji I really appreciate your perspective on this. It was eye opening and very helpful. Thanks everyone else too for the helpful feedback. I will maintain that there is too much personal or professional bias and subjectivity involved in a process that can have such a profound impact on a contractor's future business prospects. 

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Michael,

If you only have one data point, I agree with you.  But in a source selection, past performance should be only one among some number of other factors, all of which can influence the selection decision.

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On ‎11‎/‎15‎/‎2017 at 12:41 PM, Michael11 said:

If you are not content with your evaluation and would like a sit down with the CO to voice your case, does the CO have the ability to change a rating without ever actually "non concurring" or entering contractor comments?

Michael - The answer to this is yes, it is possible, although it is not part of the regular CPARS process flow. Either the Department POC (DPOC) or Agency POC (APOC) (in my last agency they were the same person) would need to send a request to NAVSEA to "unwind" the evaluation and explain the rationale for doing so. In every case that I've seen this occur, NAVSEA has agreed to the request. As the Agency Focal Point, I would encourage others to pursue this path if it seemed like the most equitable solution under the circumstances.

Now, if I were a contractor, and I disagreed with the evaluation, I would most likely still want to non-concur within those first 14 days to mitigate the consequences in the event that the above course of action never materializes. A non-concurrence would not prevent NAVSEA from unwinding the evaluation if adequate rationale exists.

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That's really helpful FrankJon. Thank you. This whole exercise has been a lot of fun and we have learned a lot. 

I would still be interested in contractor or govt POV for what is considered exceptional work in areas like cost control. There are a host of ways I could think to provide value added services in other areas.

It sounds like meeting all contract requirements, providing budget necessary updates, sending for your funding notice (s) and completing your work on time and under budget are not enough. There must be something of significant benefit to the government. 

Exceptional work is our goal - what are others doing in this area that they would consider exceptional?

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