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Delayn

Recent Deficient Past Performance and Certificate of Competency

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A solicitation was conducted as a small business set aside for non-commercial repair effort using the LPTA process.  The solicitation included past performance as an evaluation factor.  The solicitation requested contractors to submit performance information for 3 previous contract, which was going to be evaluated for recency and relevancy.  The solicitation also stated that the Government may use other sources including CPARS to evaluate past performance.  In addition, the solicitation stated that the contracting officer was going to award to a responsible offeror per FAR Part 9.  

The LPTA offeror had a recent UNSAT CPARS for a very similar requirement with my Agency since after performance the equipment is unoperable. This offeror is currently performing another contract for a similar requirement that has multiple performance issues and the contractor has threatened the Government to stop work all together.   In another contract, this contractor is currently pushing for a POP extension for 4 months and increase price in a task that can be done in 2 weeks. The contract is already behind schedule.  This company had similar issues in the past with two other UNSAT CPARS for similar requirements. 

Per FAR 15.101-2(b)(1), "If the contracting officer elects to consider past performance as an evaluation factor, it shall be evaluated in accordance with 15.305. However, the comparative assessment in 15.305(a)(2)(i) does not apply. If the contracting officer determines that a small business’ past performance is not acceptable, the matter shall be referred to the Small Business Administration for a Certificate of Competency determination, in accordance with the procedures contained in Subpart 19.6 and 15 U.S.C. 637(b)(7))."  

I have serious concerns about the ability of this company to successfully perform this work. However, the legal counsel mentioned that I cannot use the seriously deficient past performance to determine the contractor unsatisfactorily to perform the contract since the SBA will determine them responsible and ultimately I will have to award the contract to this contractor.

Has anyone had a similar situation?  What was the outcome?  Do you know any case ("Googleble") similar to this one in which the SBA has/has not supported the PCO decision?  

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If you evaluate past performance as pass/fail, and you assign a fail rating to a offeror who would otherwise be the successful offeror, you must refer the offeror to the SBA for a COC if that offeror is a small business because you have treated past performance as a responsibility matter.  If the SBA gives a COC, well, you asked for it.

So don’t evaluate past performance as pass/fail — stop it!  Instead, deal with past performance as part of a tradeoff, and assign the offeror a low confidence (or high risk) rating for past performance — low confidence is not the same as unacceptable.  The low confidence rating does not disqualify the offeror, but it will likely be a disadvantage in the tradeoff.  In the tradeoff, select the best value offeror, even if you have to pay a price premium to another offeror for higher confidence.  In this approach, the unsuccessful small business offeror is not referred to the SBA for s COC.

Don’t use LPTA if LPTA will not give you the best value.  Use s tradeoff.  Problem solved.  

You’re welcome.

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BYW, your attorney is wrong.  If you are evaluating past performance as pass/fail (you shouldn’t, but you are), you need to be honest and assign the fail or unacceptable rating, if you think that is right.  You should do what is right, and then let the SBA issue the COC, or not, as it chooses.  It would be a gross failure of your professionalism to assign a pass rating solely because you think the SBA might issue a COC otherwise.

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The lawyer needs to do their job and be your advocate, not throw up their hands and give up. 

Beyond that, suggest using past performance as a comparative factor . And suggest using the trade-off with price either equal in importance to all the other factors or price is significantly more important than non-priced factors. Good luck

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Thank you for your comments.  

11 hours ago, ji20874 said:

BYW, your attorney is wrong.  If you are evaluating past performance as pass/fail (you shouldn’t, but you are), you need to be honest and assign the fail or unacceptable rating, if you think that is right.  You should do what is right, and then let the SBA issue the COC, or not, as it chooses.  It would be a gross failure of your professionalism to assign a pass rating solely because you think the SBA might issue a COC otherwise.

Thank you.  I totally agree with you.  Are there any ways to prevent the SBA to issue a COC with such a bad performance?

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Having chosen an LPTA approach, you cannot stop the SBA from doing it’s job if you don’t select a small business solely for a responsibility matter (such as pass/fail past performance). However, instead of writing a wimpy determination of non-responsibility, you can be strong.   I have made more than two dozen determinations of nonresponsibility and COC referrals, and have never had the SBA grant a COC.   Keep emotions out of your determination, but be strong with facts and your own professional decision that the offeror is non-responsible.

Or, drop the LPTA approach because it does not fit your needs.

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12 hours ago, joel hoffman said:

The lawyer needs to do their job and be your advocate,

Joel, this is partially correct.  Government attorneys have two responsibilities.  First, to provide agency personnel with their best advice concerning issues presented to them.  After the agency makes a decision as to what course of action to follow, the attorney then has the responsibility to advocate for that decision.

As to the first responsibility in this instance, I think the advice is wrong as has been stated before.  Further, my experience is that the SBA and agency are generally in agreement concerning a concern's responsibility although there are cases where the SBA does issue a COC despite an agency determination of non-responsibility.

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15 hours ago, Delayn said:

However, the legal counsel mentioned that I cannot use the seriously deficient past performance to determine the contractor unsatisfactorily to perform the contract since the SBA will determine them responsible and ultimately I will have to award the contract to this contractor.

Mis-placed conclusion on the part of legal counsel.  While as already mentioned the SBA might issue a COC think this through  and consider the following.

Read FAR 19.6 carefully along with FAR 9.104-1.   When your refer to the SBA make sure you are very clear on all the reasons that responsibility is in questioned.   Be very detailed and remember fit your issues into all the general standards that apply.  Do not just do a letter referring for a COC on a general basis provide facts that support the question of responsibility.

In my 15 years with SBA, yes a while ago but I believe still applicable,  lots of times agency's failed to provide  detail about why a firm is not responsible.  In such cases SBA simply defers to looking at their financial where with all to perform the contract and issue a COC.  Determinations of responsibility require much more and you have to load SBA up with the info.  Additionally while the FAR provides for a collaborative process in some cases for COC referrals do not give away your authorities, by example give longer than the time periods provided for in the FAR for the COC process.

In noting the above it may  appear that I am not an advocate of SB's, quite the contrary, I am.    However it is my view that the COC process has been maligned not because SBA in effect applies too much discretion and just hands out COC's like candy it is because through the course of years agency's have not done their due diligence in representing why a firm is not responsible.  In truth it is my belief that if you can prove a firm is not responsible to SBA then do it and in most cases they will agree, especially with if there are facts as you have represented.

In the end as you can tell I do not think  dropping LPTA and past performance is the answer, the answer really is do your dead level best to show why a firm is not responsible.  There are many times that I experienced both with SBA and away from SBA that a well documented referral results in the SBA of either not responding in the time required so in essence no COC is provided or issues a denial formally.

PS - CPARS is there for a purpose along with the archiving in PPIRS.  If I were doing a COC referral today I would emphasize the PPIRS information as being an official record and reflection of the contractors abilities most especially because a contractor has the ability to comment on their evaluations and demonstrate or not that performance misgivings were beyond their control.   Read FAR 9.104-3(b) and if the standards stated are not met give SBA the PPIRS information to demonstrate why.

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6 hours ago, C Culham said:

Mis-placed conclusion on the part of legal counsel.  While as already mentioned the SBA might issue a COC think this through  and consider the following.

Read FAR 19.6 carefully along with FAR 9.104-1.   When your refer to the SBA make sure you are very clear on all the reasons that responsibility is in questioned.   Be very detailed and remember fit your issues into all the general standards that apply.  Do not just do a letter referring for a COC on a general basis provide facts that support the question of responsibility.

In my 15 years with SBA, yes a while ago but I believe still applicable,  lots of times agency's failed to provide  detail about why a firm is not responsible.  In such cases SBA simply defers to looking at their financial where with all to perform the contract and issue a COC.  Determinations of responsibility require much more and you have to load SBA up with the info.  Additionally while the FAR provides for a collaborative process in some cases for COC referrals do not give away your authorities, by example give longer than the time periods provided for in the FAR for the COC process.

In noting the above it may  appear that I am not an advocate of SB's, quite the contrary, I am.    However it is my view that the COC process has been maligned not because SBA in effect applies too much discretion and just hands out COC's like candy it is because through the course of years agency's have not done their due diligence in representing why a firm is not responsible.  In truth it is my belief that if you can prove a firm is not responsible to SBA then do it and in most cases they will agree, especially with if there are facts as you have represented.

In the end as you can tell I do not think  dropping LPTA and past performance is the answer, the answer really is do your dead level best to show why a firm is not responsible.  There are many times that I experienced both with SBA and away from SBA that a well documented referral results in the SBA of either not responding in the time required so in essence no COC is provided or issues a denial formally.

PS - CPARS is there for a purpose along with the archiving in PPIRS.  If I were doing a COC referral today I would emphasize the PPIRS information as being an official record and reflection of the contractors abilities most especially because a contractor has the ability to comment on their evaluations and demonstrate or not that performance misgivings were beyond their control.   Read FAR 9.104-3(b) and if the standards stated are not met give SBA the PPIRS information to demonstrate why.

Thank you very much for your advice.  This is really good information.  I will make sure the nonresponsibility is well documented.  Do you have any sanitized examples you can share?

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8 hours ago, Retreadfed said:

Joel, this is partially correct.  Government attorneys have two responsibilities.  First, to provide agency personnel with their best advice concerning issues presented to them.  After the agency makes a decision as to what course of action to follow, the attorney then has the responsibility to advocate for that decision.

As to the first responsibility in this instance, I think the advice is wrong as has been stated before.  Further, my experience is that the SBA and agency are generally in agreement concerning a concern's responsibility although there are cases where the SBA does issue a COC despite an agency determination of non-responsibility.

Thank you.  This is what I suspected.  

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9 hours ago, ji20874 said:

Having chosen an LPTA approach, you cannot stop the SBA from doing it’s job if you don’t select a small business solely for a responsibility matter (such as pass/fail past performance). However, instead of writing a wimpy determination of non-responsibility, you can be strong.   I have made more than two dozen determinations of nonresponsibility and COC referrals, and have never had the SBA grant a COC.   Keep emotions out of your determination, but be strong with facts and your own professional decision that the offeror is non-responsible.

Or, drop the LPTA approach because it does not fit your needs.

Can you share any sanitized examples of the determinations of nonresponsibility and COC referreral you have written?

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I don’t have any samples.  But read what the FAR says about responsibility, and use some of those words.  Don’t ask SBA to determine whether the offeror is responsible, but make your own definite and direct statement that you have determined the offeror to be non-responsible for this procurement.  Include facts, minimize emotions.  You are not recommending that SBA find the offeror non-responsible; rather, you are making that determination.  Describe the risk or harm the government would face with award to the offeror and express why that risk or harm is unacceptable.  Write the determination using the first person “I” pronoun — not the government determines the offeror non-responsible, but “I” determine it non-responsible.  

You may share your draft by notification to me within WIFCON.

Still, there is no guarantee.  In CPARS, did you really give an UNACCEPTABLE rating? Or did you give a SATISFACTORY and mention the poor performance in the text?

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12 hours ago, Delayn said:

Do you have any sanitized examples you can share?

Sorry no samples.  I imagine you have done an internet search of "responsibility determination" or something similar.  If not give it a try to get more information that may help in your drafting of the referral.  Additionally take a look at 13 CFR 125.5 SBA's regulation regarding COC's as well as GAO protests regarding responsibility and COC's.  For the latter the WIFCON Legal tool for looking at protests by FAR makes it easy to drill down to look at the subject of FAR 9.104-1 - http://www.wifcon.com/pd91041.htm - and FAR 19.602 - http://www.wifcon.com/pd19_6022.htm  All would give you food for thought as you draft your referral.

Coupled with ji's most recent thoughts remember the burden of proof is on the SB.  Upon your referral to SBA and the subsequent notification by SBA to the SB the SB must apply for the COC to SBA.   This brings me back to the timing matter, do not relinquish the 15 day period.

I found this.  Provides most of what has already been noted in this thread but it might be of help.......https://www.sba.gov/sites/default/files/2018-02/COC_workbook.pdf

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2 hours ago, ji20874 said:

I don’t have any samples.  But read what the FAR says about responsibility, and use some of those words.  Don’t ask SBA to determine whether the offeror is responsible, but make your own definite and direct statement that you have determined the offeror to be non-responsible for this procurement.  Include facts, minimize emotions.  You are not recommending that SBA find the offeror non-responsible; rather, you are making that determination.  Describe the risk or harm the government would face with award to the offeror and express why that risk or harm is unacceptable.  Write the determination using the first person “I” pronoun — not the government determines the offeror non-responsible, but “I” determine it non-responsible.  

You may share your draft by notification to me within WIFCON.

Still, there is no guarantee.  In CPARS, did you really give an UNACCEPTABLE rating? Or did you give a SATISFACTORY and mention the poor performance in the text?

Thank you.  I did not write the CPARS. It was done by someone else within my Agency.  The rating was UNACCEPTABLE for all evaluated criteria.

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39 minutes ago, C Culham said:

Sorry no samples.  I imagine you have done an internet search of "responsibility determination" or something similar.  If not give it a try to get more information that may help in your drafting of the referral.  Additionally take a look at 13 CFR 125.5 SBA's regulation regarding COC's as well as GAO protests regarding responsibility and COC's.  For the latter the WIFCON Legal tool for looking at protests by FAR makes it easy to drill down to look at the subject of FAR 9.104-1 - http://www.wifcon.com/pd91041.htm - and FAR 19.602 - http://www.wifcon.com/pd19_6022.htm  All would give you food for thought as you draft your referral.

Coupled with ji's most recent thoughts remember the burden of proof is on the SB.  Upon your referral to SBA and the subsequent notification by SBA to the SB the SB must apply for the COC to SBA.   This brings me back to the timing matter, do not relinquish the 15 day period.

I found this.  Provides most of what has already been noted in this thread but it might be of help.......https://www.sba.gov/sites/default/files/2018-02/COC_workbook.pdf

Thank you very much. I have done internet search and have read GAO cases on responsibility determination and COC.  However, I appreciate all the extra help you are providing me.  I will take a look at the references you provided.  

 

3 hours ago, ji20874 said:

 Don’t ask SBA to determine whether the offeror is responsible, but make your own definite and direct statement that you have determined the offeror to be non-responsible for this procurement.  Include facts, minimize emotions.  You are not recommending that SBA find the offeror non-responsible; rather, you are making that determination.  Describe the risk or harm the government would face with award to the offeror and express why that risk or harm is unacceptable.  Write the determination using the first person “I” pronoun — not the government determines the offeror non-responsible, but “I” determine it non-responsible.  

This is really helpful. This is my first time writing a nonresponsibility determination for a SB.  So your advice is really helping me realize other angles I had not considered before in writing my determination.  I read the FAR and GAO cases. But, the reality is that there are things that are not said in the FAR: they are only learned by experience.  Any other areas I should take into consideration???

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If it is true, say that this is a critical need and that on- time and acceptable performance is crucial.  And, if it is true, say that the contracting officer who wrote the CPARS is considering a referral for suspension or debarment.

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23 minutes ago, Delayn said:

However, I appreciate all the extra help you are providing me. 

We have concentrated on the performance issue but do not forget that there are 6 other general responsibility standards.  Do not leave those stones unturned and address them if there is failure with regard to them as well.

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1 hour ago, C Culham said:

We have concentrated on the performance issue but do not forget that there are 6 other general responsibility standards.  Do not leave those stones unturned and address them if there is failure with regard to them as well.

Thank you. Good point!

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1 hour ago, ji20874 said:

If it is true, say that this is a critical need and that on- time and acceptable performance is crucial.  And, if it is true, say that the contracting officer who wrote the CPARS is considering a referral for suspension or debarment.

Great!  I will include this in my statement.

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8 hours ago, ji20874 said:

If it is true, say that this is a critical need and that on- time and acceptable performance is crucial.  And, if it is true, say that the contracting officer who wrote the CPARS is considering a referral for suspension or debarment.

I apologize for not providing all thoughts at once but as this thread advances things come to mind.

CPARS versus PPIRS - If I had a choice I would reference PPIRS.  Why?  Archives in PPIRS suggests that a business has seen and provided input to the completed eval.  Therefore if they did or did not address an UNSAT they received it would seem such facts would help in the value of such an eval on a future procurement. By example consider 15.306(b)(4).

Also a visit of FAR 42.15 would likely help you as well.

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Past Performance Information Retrieval System ( PPIRS) data has been merged into the Contract Performance Assessment Reporting System (CPARS).

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12 hours ago, Jamaal Valentine said:

Past Performance Information Retrieval System ( PPIRS) data has been merged into the Contract Performance Assessment Reporting System (CPARS).

Thank you...Did some reading and appreciate being brought up to speed.

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Delany,

ji gave you good advice:

On ‎3‎/‎15‎/‎2019 at 7:55 PM, ji20874 said:

So don’t evaluate past performance as pass/fail — stop it!  Instead, deal with past performance as part of a tradeoff, and assign the offeror a low confidence (or high risk) rating for past performance — low confidence is not the same as unacceptable.  The low confidence rating does not disqualify the offeror, but it will likely be a disadvantage in the tradeoff.  In the tradeoff, select the best value offeror, even if you have to pay a price premium to another offeror for higher confidence.  In this approach, the unsuccessful small business offeror is not referred to the SBA for s COC.

Don’t use LPTA if LPTA will not give you the best value.  Use s tradeoff.  Problem solved.

I would add that the same goes for any responsibility-type criteria at FAR 9.104-1. You shouldn't evaluate any of those on a pass/fail basis to determine technical acceptability when using LPTA.

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On ‎3‎/‎15‎/‎2019 at 10:55 PM, ji20874 said:

So don’t evaluate past performance as pass/fail — stop it!  Instead, deal with past performance as part of a tradeoff, and assign the offeror a low confidence (or high risk) rating for past performance — low confidence is not the same as unacceptable.  The low confidence rating does not disqualify the offeror, but it will likely be a disadvantage in the tradeoff.  In the tradeoff, select the best value offeror, even if you have to pay a price premium to another offeror for higher confidence.  In this approach, the unsuccessful small business offeror is not referred to the SBA for s COC.

Don’t use LPTA if LPTA will not give you the best value.  Use s tradeoff.  Problem solved.  

 

I was in a CLP class last month in which the instructor advised us not to include "marginal" as an evaluation factor, but rather move right from satisfactory to fail.  Her reasoning was as follows--rarely has she seen an offeror win an award or even make the competitive range when one of their non-price factors has been rated as such.  I always though similarly myself.  In particular, I have had a longstanding problem with how we tend to describe "marginal" as an adjectival rating.  Some agencies borrow the language right from CPARS--

Performance does not meet some contractual requirements.  The contractual performance of the element or sub-element being evaluated reflects a serious problem for which the contractor has not yet identified corrective actions.

If we are to take and interpret that first line of the rating, "does not meet some contractual requirements," that reads to me as "fail."  Satisfactory performance of a contract means meeting all of its requirements.  If we state in the SOW, "response within two hours, 90% of the time," then [well] that is what we mean.  Eight-nine percent does not cut it.  The contractor either performs successfully by meeting the mandatory minimum requirements, or it does not; there is no half-pregnant.  Now a contractor can certainly exceed the performance metrics, but "marginal" as a rating has always seemed to me uncertain at best.

However, Ji makes a point that offers a whole new perspective and useful application for the marginal rating, which is to say, as a tool of sorts when we are in a trade-off scenario.  I realize that "low-confidence" and "marginal" have some distinction from one another.  The first being predictive, while the latter seems more so an assessment after the fact.  That said, the analogy is there for the taking.  I am going to think on this a bit more for now, but I like it.

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On 3/17/2019 at 8:04 PM, C Culham said:

I apologize for not providing all thoughts at once but as this thread advances things come to mind.

CPARS versus PPIRS - If I had a choice I would reference PPIRS.  Why?  Archives in PPIRS suggests that a business has seen and provided input to the completed eval.  Therefore if they did or did not address an UNSAT they received it would seem such facts would help in the value of such an eval on a future procurement. By example consider 15.306(b)(4).

Also a visit of FAR 42.15 would likely help you as well.

Awesome! I have been researching all the information you have been providing.  

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