PAST PERFORMANCE QUESTION

[lawyergirl]

Hello:  A solicitation says (and nothing else):  "Only contracts with performance within three (3) years from the solicitation release date will be evaluated."  If we have past performance with these dates:

Base Period – March 21, 2018 through March 20, 2019
Option Period 1 – March 21, 2019 through March 20, 2020
Option Period 2 – March 21, 2020 through March 20, 2021
Optional Extension of Services under FAR 52.217.8 – March 21, 2021 through September 21, 2021 (only this item falls within 3 years of solicitation release).

Can we count the optional extension as past performance?  Can we count it as part of OP2 if it was issued as a MOD (citing FAR 52.217.8 but same contract #).  In addition, if we can use it, can we count the entire duration of the contract as past performance or only the portion that falls within the 3 year time frame?

Thanks so much in advance for any guidance!

 

[Voyager]

I assume you are just looking for experienced CO input on whether this should be a contract to which you refer the government evaluators in your proposal.  I would expect when the relevance threshold is barely met, the contract could result in the potential for high relevance (if its scope, size, and complexity warrants it), but the Government's case for assigning it a strength guiding the adjectival rating would be tarnished by age.  Perhaps a strength could be assigned, but nothing more significant, and likely a pass.  The reasonableness standard of the GAO allows the evaluators to write their assessment either way and not be judged here, because they have an out in your reference contract's age.

You should find a more recent one or offer something elsewhere in the proposal that convinces them they want to use your old contract as a strength.

[General.Zhukov]

  

1 hour ago, lawyergirl said:

Hello:  A solicitation says (and nothing else):  "Only contracts with performance within three (3) years from the solicitation release date will be evaluated."  If we have past performance with these dates:

Base Period – March 21, 2018 through March 20, 2019
Option Period 1 – March 21, 2019 through March 20, 2020
Option Period 2 – March 21, 2020 through March 20, 2021
Optional Extension of Services under FAR 52.217.8 – March 21, 2021 through September 21, 2021 (only this item falls within 3 years of solicitation release).

Can we count the optional extension as past performance?  Can we count it as part of OP2 if it was issued as a MOD (citing FAR 52.217.8 but same contract #).  In addition, if we can use it, can we count the entire duration of the contract as past performance or only the portion that falls within the 3 year time frame?

Thanks so much in advance for any guidance!

 

1) Based upon what you wrote, as the CO, I would evaluate this contract because the ext. of services option was exercised.  The PoP was within 3 years.  That seems very straightforward to me.  

2) "can we count the entire duration of the contract as past performance " - Yes.   The alternative is incoherent.  Its easy to think of cases where the performance to be considered can't be meaningfully 'severed' at some arbitrary date.   Though more recent performance would probably be weighted more heavily, but I wouldn't just pretend as if performance prior to that date didn't exist.  Like, if on July 7, 2021 you received a signed letter from the Secretary of Defense stating you're the best contractor of all time and they're updating CPARS to have a 6/5 rating just for you, I wouldn't exclude those facts from my evaluation.

 

 

 

 

[Don Mansfield]

2 hours ago, lawyergirl said:

Hello:  A solicitation says (and nothing else):  "Only contracts with performance within three (3) years from the solicitation release date will be evaluated."  If we have past performance with these dates:

Base Period – March 21, 2018 through March 20, 2019
Option Period 1 – March 21, 2019 through March 20, 2020
Option Period 2 – March 21, 2020 through March 20, 2021
Optional Extension of Services under FAR 52.217.8 – March 21, 2021 through September 21, 2021 (only this item falls within 3 years of solicitation release).

Can we count the optional extension as past performance?  Can we count it as part of OP2 if it was issued as a MOD (citing FAR 52.217.8 but same contract #).  In addition, if we can use it, can we count the entire duration of the contract as past performance or only the portion that falls within the 3 year time frame?

Thanks so much in advance for any guidance!

 

It would be best if you asked the contracting officer. Our interpretations don't matter.

[dsmith101abn]

What he said ^ 

 

Ask the question. When i was a new CO I was asked a similar question by a contractor and I didn't have a good response. Going forward, I started adding more if could like must be 50% complete, all complete, substantially complete, etc. if i was rating things like past performance or previous experience. 

I'm not exactly an expert on source selection and don't know anything about the requirement, so take that with a grain of salt. 

[C Culham]

5 hours ago, Don Mansfield said:

It would be best if you asked the contracting officer. Our interpretations don't matter.

 

7 hours ago, lawyergirl said:

Can we count the optional extension as past performance? 

While I agree with Don I suggest you keep this in mind when you get the CO's response.

FAR 4.804-4(a)(1)(iii).

[joel hoffman]

Ask the assigned/appropriated point of contract for this acquisition. It doesn’t matter what interpretation we give you in this Forum. 

[formerfed]

Unless the solicitation specifically requires information broken down by base and option years, just state your period of performance as:

”March 21, 2018 through September 21, 2021.”

You are in compliance with the solicitation instructions and there’s no need to ask questions.  This is the commonly expected and usual way of submitting the information.

[ji20874]

I am dismayed when I hear of contracting officers trying to do things like this -- essentially, it appears this contracting officer has established a qualification requirement or a special standard of responsibility.  In my practice, I might have said that otherwise relevant past performance within three years of the solicitation release date will be considered as more relevant than older information.

[Voyager]

1 hour ago, ji20874 said:

special standard of responsibility

Many offices view it as a standard of reasonableness, necessary for logistical reasons.  CPARS archives a contract's ratings three years after physical completion.  Without CPARS, the likelihood of disparate treatment of offerors becomes higher.

In your practice, how do you solve for that problem?

[C Culham]

11 minutes ago, Voyager said:

Many offices view it as a standard of reasonableness, necessary for logistical reasons.  CPARS archives a contract's ratings three years after physical completion.  Without CPARS, the likelihood of disparate treatment of offerors becomes higher.

In your practice, how do you solve for that problem?

The discussion reminds of when I was with USACE and supervised the CPARS staff before the system went to government wide use.   I was also reminded of this which took me a couple of minutes to find.   It suggests via its verbage and references there is no problem if the agency uses its discreation wisely.  You might want to take a read.  To make it quick go to "When". 

https://www.gao.gov/assets/a117381.html

[lawyergirl]

For those who have offered insight, thank you!  It was extraordinarily helpful!  If asking the CO was an option, I certainly would.  This forum has always been so helpful in situations like this -- getting insight from those who have experienced similar situations, but understanding that the ultimate evaluators/COs will have their own take.  Hearing from you better prepares me for the outcome, so sincere thanks.  And to whoever created this forum, a huge thank you!  

[ji20874]

Voyager,

The standard of reasonableness you speak of seems wholly unreasonable to me -- it suggests that the only past performance that can be used in a part performance evaluation is CPARS data, or that all past performance must be substantiated by CPARS data.  This is not true. 

Of course, there is nothing wrong with special standards of responsibility, and FAR Part 9 tells contracting officers how to use them -- but I am thinking this solicitation is not presenting this as a special standard of responsibility.  I hope the contracting officer is going treat an offeror without a 3-year-submission neither favorably nor unfavorably for past performance.

But, I am talking about something beyond the OP's question, and her question has already been answered.

[formerfed]

42 minutes ago, ji20874 said:

The standard of reasonableness you speak of seems wholly unreasonable to me -- it suggests that the only past performance that can be used in a part performance evaluation is CPARS data, or that all past performance must be substantiated by CPARS data.  This is not true. 

This hits right on one of my pet peeves.  Past performance has always been intended to consider an offerors performance.  It allows wide discretion in evaluating data from a wide range of sources and not just CPARS.  But the government in its typical bureaucratic and risk adverse mode, relies upon CPARS chiefly.  In some cases, that’s the only source.  And CPARS ratings are highly inflated.  

[Voyager]

6 hours ago, lawyergirl said:

And to whoever created this forum, a huge thank you!

That would be @bob7947, a real scholar of scholars, and one to whom I owe my thanks as well.  We all do.  Some even do for 26 years of this service now!

[Voyager]

Let’s be sure to state the problem clearly for the readers, so no one relies on any protest risk hearsay.  Too often a CO will “trust the experts” in the legal office on protest risk, and take zero risk as a result.  This forum teaches you how to surpass that timid banality.

I like the way @Patrick S and the folks at MITRE summarize the problem at hand here, in their Contract Protest Diagnostic Tool, Section 3.8.1: “The GAO will review the source selection records to determine whether an agency’s award decision is reasonable, adequately documented, and consistent with the evaluation criteria in the solicitation. If disparate treatment is found, the evaluation process is unreasonable.”

Now, let’s say the three-year relevance threshold is not used in the solicitation.  CPARS is essentially just a source, albeit one in which we know all offerors’ recent past performance information will be.  This source easily avoids the disparity problem described above when it’s used for contracts ending within three years of evaluation.  What is the next “source” (or maybe it’s a technique?) we should use for the older contracts, though?  I’m asking if there is a reliable source we can document we’ve consulted for all offerors, to avoid the disparity problem for those older contracts.  Something used commercially, maybe? 

Edited July 10 by Voyager
fixed link

[formerfed]

49 minutes ago, Voyager said:

CPARS is essentially just a source, albeit one in which we know all offerors’ recent past performance information will be.  This source easily avoids the disparity problem described above when it’s used for contracts ending within three years of evaluation.  What is the next “source” (or maybe it’s a technique?) we should use for the older contracts, though?  I’m asking if there is a reliable source we can document we’ve consulted for all offerors, to avoid the disparity problem for those older contracts.  Something used commercially, maybe? 

First, not all contracts are in CPARS.  Some offices are not diligent in entering the data.  Some are exempt.  Then some actions are also exempt.

Performance information can be gathered through questionnaires, interviews, and other sources including commercial like D&B.

https://www.dau.edu/acquipedia-article/past-performance#:~:text=FAR Requirements for Evaluating Past Performance&text=In addition to CPARS%2C contracting,in accordance with FAR 9.404.

 

[C Culham]

14 hours ago, formerfed said:

 And CPARS ratings are highly inflated.

formerfed - I think the pendulum swings boths ways.   I knew of one agency office, rather large office, where the standard was that a CO would process only CPARS ratings that were a satisfactory rating.   This internal policy was and still may be practiced I am not sure.  I imagine the worst in scenerios when thinking that the primary objective for the creation of performance ratings was for the purpose of selecting future contractors to perform future contracts.  Pity the contractor that excelled only to get "satisfactory".   Or worse yet pity the poor agency that somehow selected a future contractor based on a "satisfactory" rating but contractor actually failed miserabley on the past contracts with the agency.  Why you might ask did the agency do this? Exactly fits the conversation they were risk adverse and satisfactory took the easy way out.

8 hours ago, Voyager said:

 CPARS is essentially just a source, albeit one in which we know all offerors’ recent past performance information will be.  This source easily avoids the disparity problem described above when it’s used for contracts ending within three years of evaluation.

Voyager - Now this may not come out right but I would offer the disparity is not the source it is how the source is used in the evaluation process.

[Vern Edwards]

10 hours ago, Voyager said:

I like the way @Patrick S and the folks at MITRE summarize the problem at hand here, in their Contract Protest Diagnostic Tool

Dear God.

We are all victims of the lawyerification of American society.

Lasciate ogne speranza, voi ch'intrate.

[ji20874]

10 hours ago, Voyager said:

CPARS is essentially just a source, albeit one in which we know all offerors’ recent past performance information will be.

Really?  We know that all offerors will have their recent past performance in CPARS? 

I disagree.

Offerors with excellent past performance for non-federal clients (and therefore no CPARS records) should be encouraged to participate in the federal procurement process.  Banning them because of no CPARS seems like professional malpractice.

[Voyager]

30 minutes ago, ji20874 said:

Really?  We know that all offerors will have their recent past performance in CPARS? 

I disagree.

Offerors with excellent past performance for non-federal clients (and therefore no CPARS records) should be encouraged to participate in the federal procurement process.  Banning them because of no CPARS seems like professional malpractice.

What?  We do business with the usual suspects in a consolidated industry pool.  When you change that, please let me know - I would like to join your version of reality.  I can see it now - so many fewer clauses.  And yes, I try my best to allow new entrants through proper requirements analysis in clause selection, but I cannot speak for the Acquisition Workforce as a whole.

[Voyager]

@Vern Edwards I was just streamlining my post from my phone, late at night.  Here are my sources cited:

• Harris IT Servs. Corp., B-406067, Jan. 27, 2012
• Ahtna Support and Training Services, LLC, B-400947.2, May 15, 2009

I get it, I should practice what I preached about trusting the experts.  Arise for our help, and redeem us for thy mercies' sake.

If you have any other qualms with what I've written, let me know.

[formerfed]

Some interesting data on CPARS ratings.  The average score based upon a 1-5 scale with Satisfactory being a 3 for FY22 was 3.52.  That dropped from 3.72 in FY15.  Less than 2% of contractors received Marginal or Unsatisfactory!

https://www.highergov.com/reports/cpars-ratings-trends-2023/

 

[Vern Edwards]

@Voyager I wasn't criticizing your post. I was reacting to the fact that an outfit like Mitre is publishing guides to bid protests. I once (long ago) handled contracts with them for research pertaining to re-entry vehicles, i.e., nuclear warheads.

[formerfed]

@Vern Edwards This NCMA article provides a lot of background on the tool.  The two leads (brief bio at the end) have a good deal of experience.

https://ncmahq.org/Web/Shared_Content/CM-Magazine/CM-Magazine-April-2024/A-New-Tool-to-Help-Avoid-Bid-Protest-Pitfalls--The-Contract-Protest-Diagnostic-Tool.aspx