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Pre-Award Protest - Subcontractor CPARS

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I have a solicitation where the COR provided the Q&A's stating that Subcontractor Past Performance will only be accepted if it had a CPARS and only Prime Contractor Past Performance being excepted if it has a CPAR which eliminates any Prime Contracts under one year. Subcontractor's do not get CAPRS, so how are subcontractor past performance accepted only if they have a CPAR evaluation? I believe this should be grounds for a pre-award protest.... any opinions on this topic or others who have experienced the same.

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I have a solicitation where the COR provided the Q&A's stating that Subcontractor Past Performance will only be accepted if it had a CPARS and Prime Contractor PP has to be within 5 years with a CPAR evaluation, which eliminates any Prime Contracts under one year. My issue, Subcontractor's do not get CAPRS, so how are subcontractor past performance accepted only if they have a CPAR evaluation? Since the solicitation states that subcontractor PP is acceptable to use, however only CPARS evaluated PP is accepted, doesn't that contradict itself and could be grounds for Pre-Award Protest? Lastly, this solicitation is small business set aside, so limiting PP with only CPAR evals restricts many SB's with Prime Contracts less than 1 year. Any opinions on this matter? 

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3 hours ago, Cewheaton said:

Subcontractor's do not get CAPRS, so how are subcontractor past performance accepted only if they have a CPAR evaluation?

Consider that subs might have an evaluation in the system if they performed in the past as a prime.

3 hours ago, Cewheaton said:

I believe this should be grounds for a pre-award protest.... any opinions on this topic or others who have experienced the same? 

Depends as the  details would dictate.  Considerations that quickly come to mind include what the solicitation, as amended, actually says about what is needed to evaluate past performance and how the information will be evaluated, does the COR have authority to speak on behalf of the CO, FAR 15.305(a)(2) and GAO case law.

Sounds like you need to speak to an expert or legal counsel with regard to your concerns.

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Cewheaton,

What procedures are being used to solicit (RFQ/RFP/IFB)? Commercial or non-commercial? Service, supply or construction? Trade-off, LPTA, or Price Only?

Either way, when using past performance as an evaluation factor and using a SB set-aside, two things need to be acknowledged.

1. FAR 13.305 (a) (2) (iv) stats, "In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance." Therefore you cannot find them incapable is they are not in CPARS in your required time-frame.

2. FAR 19.6 gives guidance about the Small Business Administration's (SBA) process for issuing a Certificates of Competency (COC). In my experience the SBA hands these out like tic-tacs in the commercial area of acquisitions. If the SBA says they can do the work required, then that is that.  

I would say yes, a pre-award protest is coming, but still need more information.

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At first read, looks restrictive to me.Please clarify.

1.  Is the government separately evaluating subcontractor past performance?  Or does the RFP state that past performance of the prime contractor’s proposed subcontractor(s) may be used to qualify under the past performance evaluation factor?

2.  Is this a very specialized project scope of work such that only firms with recently completed US government contract work experience can successfully perform it?  

It is generally true that offerors without a record of relative past performance must  be evaluated neither favorably or unfavorably.  The rule cited above implements Statute - which specifically refers to the term "past performance".  FAR Part 2 defines it: "Past performance means an offeror's or contractor's performance on active and physically completed contracts (see 4.804-4)."

However, the government might be allowed to separately require that a firm or its proposed subcontractor possess relative “experience” on similar type work. 

Many agencies have been combining the experience and quality of performance under one factor, especially since DoD has been using recent, relative experience in its two step “confidence rating” system. 

For the DoD’s Version of past performance or “confidence” factor, the relevance of project experience is used, recognizing that past performance records on contracts that were related in experience to the instant one are generally more relevant in assessing  the overall “confidence” of a firm. 

When experience is a separate factor from past performance, the government has been able to use it as a qualifier, thus avoiding the so called favorably/unfavorably rule. 

However, when an agency mixes experience and the quality of that experience under one “past performance” factor, I think that they can run afoul of the rule when they require a past performance record to qualify or when they require experience to qualify under a "past performance" factor.

Regardless how, when possessing a past performance record becomes go/no go criteria rather than comparative criteria, I think the agency is not complying with the favorable/unfavorable rule.

Before and when I was using the DoD confidence rating system, I  evaluated  recent relative experience under a separate factor.  We were able to use experience  as a qualifying factor when seeking firms with related experience as a discriminator among many offerors. This was particularly important as a discriminator in Phase One on Two Phase source selections for design-build single award projects or for establishing multiple award design-build ID/IQ pools.

As an example where a sub could be used on an SB set aside to qualify the team under recent, relative experience,  we had a project to construct some new Air Force airfield pavement. The contract included quite a bit of ancillary site work, subgrade, excavation, etc. That would be enough work for a non paver small business prime to satisfy the minimum of 15% self performed work requirement with a subcontractor performing the concrete paving.  This was a government designed project. 

It was critical that the firm which would actually be performing the concrete paving have recent, relative (and acceptable) experience in concrete highway or airfield paving.

So we established that, as go/no go experience evaluation criteria. Either the prime or a paving sub could qualify the team.  It didn’t have to be on US government or DoD contracts, as there are few such projects these days. 

(Of course, we didn’t want the SB prime to just be a “front” for the paving sub, which would probably also have previous experience as a prime on highway or airfield projects. There were separate evaluation  criteria under other factors used to disqualify obvious front type arrangements.  We successfully weeded out several teams, including the lowest priced offer, who lost an agency protest of its disqualification. ) 

I cant tell from the limited information presented here why the government is using past performance ratings on government contracts as a qualifier or if past performance of a sub can be used for an overall past performance assessment.

But it seems like a narrow window. They might be flaunting the prohibition on unfavorable treatment of teams without a government quality of performance record.  By excluding an offeror's performance on active contracts (without yearly ratings, etc.) , it looks to me that they are using experience as the qualifier and combining it with a record of performance.

 

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The GAO has issued 22 decisions in which a protester challenged the past performance provisions of a solicitation as unduly restrictive. It denied all but one of those protests,

The most frequently cited decision is Valor Construction Management LLC, B-405365, Oct. 24, 2011 (denied). Here is the key passage from that decision:

Quote

The fact that an aspect of the RFP's evaluation criteria may prevent a number of firms from obtaining positive experience and past performance ratings is not dispositive of whether the provision is unduly restrictive. In this regard, the determination of a contracting agency's needs, including the selection of evaluation criteria, is primarily within the agency's discretion and we will not object to the use of particular evaluation criteria so long as they reasonably relate to the agency's needs in choosing a contractor that will best serve the government's interests. SML Innovations, B–402667.2, Oct. 28, 2010, 2010 CPD ¶254 at 2. The fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable, if the requirement properly reflects the agency's needs. JBG/Naylor Station I, LLC, B–402807.2, Aug. 16, 2010, 2010 CPD ¶194 at 4. Further, a protester's mere disagreement with an agency's judgment concerning the agency's needs and how to accommodate them does not show that the agency's judgment is unreasonable. Dynamic Access Sys., B–295356, Feb. 8, 2005, 2005 CPD ¶34 at 4.

However, in Iyaback Construction LLC, B-409196, Feb. 6, 2014 (sustained), it sustained the protest because the agency failed to explain why its restrictions were necessary.

Quote

The Competition in Contracting Act of 1984 requires that solicitations generally permit full and open competition and contain restrictive provisions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C. §2305(a)(1)(B)(ii) (2006). Where a protester challenges a solicitation provision as unduly restrictive of competition, the procuring agency must establish that the provision is reasonably necessary to meet the agency's needs. See Total Health Res., B–403209, Oct. 4, 2010, 2010 CPD ¶226 at 3 (solicitation requirement for specific experience on the part of the prime contractor was unduly restrictive of competition where the agency did not show that its needs could not be satisfied by a subcontractor with relevant experience). We examine the adequacy of the agency's justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. SMARTnet, Inc., B –400651.2, Jan. 27, 2009, 2009 CPD ¶34 at 7. The determination of a contracting agency's needs, including the selection of evaluation criteria, is primarily within the agency's discretion and we will not object to the use of particular evaluation criteria so long as they reasonably relate to the agency's needs in choosing a contractor that will best serve the government's interests. SML Innovations, B–402667.2, Oct. 28, 2010, 2010 CPD ¶254 at 2...

In sum, we find that the RFP's past performance and experience requirements are unduly restrictive of competition, given the agency's failure to explain why its needs could not be satisfied by a less restrictive method of evaluating offerors' past performance and experience.

Ask the agency why it needs the restrictions it has imposed on past performance information. If they do not give you a rational answer, consult an attorney about filing a preaward protest that the solicitation is unduly restrictive.

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5 minutes ago, Vern Edwards said:

The GAO has issued 22 decisions in which a protester challenged the past performance provisions of a solicitation as unduly restrictive. It denied all but one of those protests,

The most frequently cited decision is Valor Construction Management LLC, B-405365, Oct. 24, 2011 (denied). Here is the key passage from that decision:

However, in Iyaback Construction LLC, B-409196, Feb. 6, 2014 (sustained), it sustained the protest because the agency failed to explain why its restrictions were necessary.

Ask the agency why it needs the restrictions it has imposed on past performance information. If they do not give you a rational answer, consult an attorney about filing a preaward protest that the solicitation is unduly restrictive.

Good advice.  If time permits, asking the agency first is  a good idea here.

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I did see where the sub or the prime would likely have to be or have been a prime on anther contract in order to have a CPARS rating.  That might or might not be overly restrictive and might or might not be grounds for success in a protest of the RFP terms.  But it would seem to me that requiring a CPARS rating at all to qualify is even more restrictive and might violate the favorable/unfavorable rule for firms without a record of past performance. 

EDIT:  See, for instance, 41 U.S.C. § 1126 (2016): Title 41 - Public Contracts, Subtitle I - Federal Procurement Policy, Division B - Office of Federal Procurement Policy, Chapter 11, Establishment of Office and Authority and Functions of Administrator, Subchapter II - Authority and Functions of the Administrator

 

 

 

Quote

 

§1126. Policy regarding consideration of contractor past performance

 

(a) Guidance.—The Administrator shall prescribe for executive agencies guidance regarding consideration of the past contract performance of offerors in awarding contracts. The guidance shall include—

(1) standards for evaluating past performance with respect to cost (when appropriate), schedule, compliance with technical or functional specifications, and other relevant performance factors that facilitate consistent and fair evaluation by all executive agencies;

(2) policies for the collection and maintenance of information on past contract performance that, to the maximum extent practicable, facilitate automated collection, maintenance, and dissemination of information and provide for ease of collection, maintenance, and dissemination of information by other methods, as necessary;

(3) policies for ensuring that—

(A) offerors are afforded an opportunity to submit relevant information on past contract performance, including performance under contracts entered into by the executive agency concerned, other departments and agencies of the Federal Government, agencies of State and local governments, and commercial customers; and

(B) the information submitted by offerors is considered; and

(4) the period for which information on past performance of offerors may be maintained and considered.

 

(b) Information Not Available.—If there is no information on past contract performance of an offeror or the information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance.

 

Of course, this isn't the "whole story" concerning applicable law, regulation or case history.  At any rate, requiring only CPARS past performance information might be overly restrictive. Don't know the whole context and consulting with competent attorney is  advisable.

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It should be noted that under FAR 15.305, the only entity whose past performance must be evaluated is the offeror.  Thus, subcontractor past performance is not required to be evaluated.

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34 minutes ago, Retreadfed said:

It should be noted that under FAR 15.305, the only entity whose past performance must be evaluated is the offeror.  Thus, subcontractor past performance is not required to be evaluated.

 However, it does not prohibit some type of subcontractor performance evaluation, either.

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40 minutes ago, joel hoffman said:

However, it does not prohibit some type of subcontractor performance evaluation, either.

True, but the point is a firm would have a hard time convincing the GAO that not considering all subcontractor past performance is unduly restrictive when subcontractor past performance does not have to be evaluated in the first place.

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24 minutes ago, Retreadfed said:

True, but the point is a firm would have a hard time convincing the GAO that not considering all subcontractor past performance is unduly restrictive when subcontractor past performance does not have to be evaluated in the first place.

I’m not following you.  Requiring a specific type of past performance source of rating that is only available for firms that were primes on government contracts signifies to me that only subs who are or have been primes on govt contracts and who have CPARS rating(s) will be considered. That might be pretty restrictive.

There are other ways to obtain past performance information on subs than through CPARS . I used to evaluate certain key subs’ experience and past performance in most all construction and design-build source selections or task order competitions.  The prime could provide assessments of previous experience with the firm(s) as subs to them. The subs could identify references for previous projects to contact, etc. 

My guess is that the reason the govt  would only be evaluating CPARS  PP information for subs is for a sub’s experience to qualify the prime in the event that the SB prime has no relevant CPARS ratings to qualify or to be higher rated on their own . 

Not enough info to tell what the reasons are. 

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@joel hoffman

Based on a reading of the protest decisions, it seems to me that the GAO would very likely deny an unduly restrictive protest if the agency could come up with any reasonably coherent explanation for why it wants to limit past performance information to CPARS data. And any CO who couldn't come up with a reasonably coherent explanation is just clueless.

The information source limitation would not prevent a firm from competing. It would mean only that it's past performance rating might be limited to "unknown."

The horse is dead.

 

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2 hours ago, Vern Edwards said:

@joel hoffman

The information source limitation would not prevent a firm from competing. It would mean only that it's past performance rating might be limited to "unknown."

The horse is dead.

 

That's not what the original poster stated:

On ‎7‎/‎6‎/‎2018 at 8:06 AM, Cewheaton said:

I have a solicitation where the COR provided the Q&A's stating that Subcontractor Past Performance will only be accepted if it had a CPARS and only Prime Contractor Past Performance being excepted if it has a CPAR which eliminates any Prime Contracts under one year. Subcontractor's do not get CAPRS, so how are subcontractor past performance accepted only if they have a CPAR evaluation? I believe this should be grounds for a pre-award protest.... any opinions on this topic or others who have experienced the same.

 

On ‎7‎/‎6‎/‎2018 at 9:11 AM, Cewheaton said:

I have a solicitation where the COR provided the Q&A's stating that Subcontractor Past Performance will only be accepted if it had a CPARS and Prime Contractor PP has to be within 5 years with a CPAR evaluation, which eliminates any Prime Contracts under one year. My issue, Subcontractor's do not get CAPRS, so how are subcontractor past performance accepted only if they have a CPAR evaluation? Since the solicitation states that subcontractor PP is acceptable to use, however only CPARS evaluated PP is accepted, doesn't that contradict itself and could be grounds for Pre-Award Protest? Lastly, this solicitation is small business set aside, so limiting PP with only CPAR evals restricts many SB's with Prime Contracts less than 1 year. Any opinions on this matter? 

The OP should do as you advised earlier. The solicitation doesn't appear to comply with the policy stated in 41 U.S.C. § 1126 (2016). 

What the word "accepted" means is anyone's guess.  It is apparently  the OP's description or interpretation of the supposed answers to questions, whatever all that means. 

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