While we all hope that we will never have to experience the issue of a poor Contractor Performance Assessment Reporting System (CPARS) performance rating directly, it is an issue that all Federal Contractors (or those who seek Federal Contracts) should be educated about. CPARS ratings can help or hinder the successful awards of Federal Contracts. If you do receive a poor performance rating, the ultimate point is that there is a very limited window when a contractor can object or try to influence the CPARS rating, so time is of the essence when you learn of a less than desirable CPAR. The remedies are also extremely limited, but the consequences are quite significant. Therefore, the Birch Horton Bittner and Cherot Government Contracting Team shares this article in hopes that managers and contract administrators can appropriately plan for the future. We hope that you do not experience a poor rating, but if you do, we want you to be ready and able to respond.
The Contractor Performance Assessment Reporting System (CPARS)[1]
The basic elements of the CPARS Program are:
- CPARS is a web-enabled reporting system for Government Contracts.
- Contracting Officers assess a contractor’s performance, providing both positive and negative feedback on a given contract during a specified time period, and that data is recorded in the CPARS database.
- Each performance assessment is based on objective data supported by program and contract management data.
- It is designed with a series of checks and balances to ensure objective and consistent evaluations, which is a helpful, but certainly not a foolproof process to ensure accurate ratings.
- The CPARS performance review process provides an opportunity for both the Government and contractor to review and comment within the CPARS system.
- CPARS assessments are required under the Federal Acquisition Authority (“FAR”) for source selection evaluations. They rely on clear and timely evaluations of the contractor’s performance to make decisions when awarding contracts. They are critical for providing “quality products and services in support of an agency’s missions.”[2]
- Generally, evaluations are NOT completed for subcontractors. However, evaluation of a contractor’s performance should include information regarding the ability of a prime contractor to manage the subcontractor.
- There are two grading scales for CPARS, the general metric and a metric for assessing small business subcontracting plan compliance. (See FAR 42.1503(h), Table 42-1, 42-2). The second grading scale becomes relevant only if the (large business) prime contractor has a small business subcontracting plan where upon the prime contractor is rated as to how well it adhered to the plan. But the grading elements are not significantly different.
General Rating System Grades:
- Exceptional: The performance meets the requirements and exceeds them to the Governments benefit. Few problems that were corrected effectively.
- To demonstrate an exceptional, multiple significant events must be identified highlighting their benefit (on occasion one benefit will suffice if no weakness).
- Very Good: The performance met the contractual requirements, and exceed some areas to the Government’s benefits. Few minor problems that were corrected.
- To justify a significant event must be identified and explain how it benefits the government. No significant weaknesses.
- Satisfactory: The performance meets the contractual requirements. Minor problems were satisfactorily corrected. Major problems were corrected without impacting the contract.
- No significant weakness. If you perform beyond the requirements of the contract you cannot get less than satisfactory.
- Marginal: The performance does not meet some contractual requirements. The element or sub-element being evaluated reflecting a serious problem proposed actions marginally effective or not fully implemented.
- Justification requires a significant event in each category that the contractor had trouble overcoming, with supporting references.
- Unsatisfactory: The performance doesn’t meet contractual requirements and recovery is unlikely. Serious problems with the contractual performance, and corrective actions are ineffective.
- Multiple significant events must be identified to justify an unsatisfactory rating.
- Justification requires identifying a significant event that the contractor had trouble overcoming and how it impacted the contract. Needs to reference action of notice.
How the CPARS Evaluations Are Applied:
- When Must CPARS be conducted? This information must be collected and evaluated for all contracts exceeding the simplified acquisition threshold.
- What must the evaluation include? CPARS evaluations should include a clear non-technical description of the principal purpose of the contract, be tailored to the contractual requirements, include clear relevant information depicting performance, and be based on objective facts supported by the program.
- Who will be evaluated? The Prime Contractor, not subcontractors, is evaluated in the CPARS process. However, this can be more complicated when dealing with joint ventures and teaming arrangements.
- In Joint Ventures, a unique DUNS number is issued that is unique from the individual numbers of the joint ventures. A single evaluation is given to the Joint Venture.
- In teaming agreements, the evaluation is carried out for the prime contractor, other members are considered subcontractors.
- Now that the Past Performance Information Retrieval System (PPIRS) is gone, agencies also now turn to CPARS directly to retrieve performance evaluation information as a means for researching a contractor’s performance history as part of the proposal evaluation process.
- Agencies use the information in the CPARS that is within three years (six years for construction and architect-engineer contracts) of the completion of the performance of the contact.[3]
Timeline for CPARS Process
- Contract Registration: Basic contract information including contractor name, address, product or service code, dollar value, and award date, etc., are entered into the system. This needs to be done within 30 days of the contract award.
- Performance of the Contract
- Enter Proposed Ratings and Narratives: Once the period of performance is complete an assessing official enters the ratings and narratives that reflect the contractors’ performance during the reporting period.
- Validated Ratings and Narratives: They will then review the proposed rating and narrative to ensure it is consistent with the FAR, detailed, comprehensive, complete, accurate, and supported by objective evidence.
- It is signed and sent to a contractor representative.
- Contractor Comments: The contractor representative has the option to provide comments on the evaluation and state whether they agree or disagree with the evaluation. They have 60 days to send comments. If this is done within the first 14 days it will become available in a day. On day 15 it becomes available for source selection with or without comments, even if it has yet to close.
- On Day 61 the contractor is locked out and unable to comment. The Administrative Contracting Officer (ADO) may then close, modify or send the evaluation. It takes a day to update and retains a pending marking.
- Review Contractor Comments Close: On day 61, after the assessing officers’ evaluation signature date, the evaluation is returned to the officer, and Contractor Representative (COR) may no longer send comments, at which point the officer may:
- Close the evaluation
- Modify the evaluation Reviewing Official.
- Send the evaluation to the Reviewing Official.
- Modify and send the evaluation to the Reviewing Official.
- 120-Day Timeframe. The entire evaluation MUST be complete within a 120 days after the period of performance, including the 60-day comment period.
When are CPARS Required?
- Interim & Final. FAR requires annual performance evaluation for all contracts/orders for all business sectors meeting the thresholds (these are interim evaluations). For contracts with a longer period, the evaluation must reflect evaluation of at least the first 180 days of performance up to 465 days.
- For those less than 365 days, a final report should be prepared.
- Interim evaluations are limited to contractor performance after the proceeding evaluation.
- Final evaluations should be completed upon completion or delivery of the final marker end item on the contract.
- Addendum evaluations may be prepared after the “final” past performance evaluation to record the contractor’s performance relative to contract closeout etc.
- Confidential Information. CPAR information is treated as source selection information at all times, and is protected in this manner.
- Disclosure is strictly prohibited.
- Only the contractor is granted access to the evaluation.
- It is privileged source selection information, and not releasable under FOIA.
Written Concerns of Small Business
- The contracting officer shall make every reasonable effort to respond in writing to a small business’s concerns submitted in writing with respect to contract administration within 30 days. This does not apply to issues characterized as a decision related to a Contract Dispute.[4]
Legal Challenges to CPARS
- In CompuCraft the Civilian Board of Contract Appeals held that a contractor “clearly [has] standing to sue [the government based on the substantive allegation that the [G]overnment acted arbitrarily and capriciously in assigning an inaccurate and unfair performance evaluation.”[5]
- However, the Board cannot “direct the Government to revise [a performance evaluation] in a particular way through some form of injunctive relief.” The Board held it lacked the jurisdiction to “remove entirely the evaluations from the CPARS website” or change each evaluative factor to exceptional.[6]
- Similar cases in other courts came to the same conclusion—that the Board/Court could find the rating arbitrary and capricious, but cannot force the agency to change the CPAR. (This may be because it would be going too far to tell the agency what to change the evaluation factor to—in other words, the Board/court will not feel it appropriate for the Board/court to give a specific rating.)
- Court of Federal Claims: Todd Const., L.P., v. U.S., 88 Fed. CL. 235, 243 (2009).
- Armed Services Board of Contract Appeals: Versar, Inc. ASBCA 56857, 10-1 BCA ¶ 3
- The best opportunity for a contractor to change a CPAR rating is to use the 14 days to rebut the negative CPAR.
Conclusion
In conclusion, CPARS performance evaluations are a critical element of a contractor’s performance history and will directly impact a business concern’s evaluation on its future federal contract proposals. CPARS evaluations should always be requested and carefully monitored. The Birch Horton Bittner and Cherot attorneys have had diverse and extensive experiences helping Federal Contractors in this area. Foremost, Federal Contractors becoming familiar with the CPAR process and its impacts is extremely important to future success especially as competition increases.
[1] FAR Subpart 42.15—Contract Performance Information
[2] Guidance For the Contractor Performance Assessment Reporting System (CPARS), General Services Administration, 3 (June 2020), https://www.cpars.gov/pdfs/CPARS-Guidance.pdf.
[3] FAR 42.1503(g): Agencies shall use the past performance information in CPARS that is within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), e.g., terminations for default or cause.
[4] FAR Subpart 42.16.
[5] See CompuCraft Inc. v. General Services Administration, CBCA No. 5516, 17-1 BCA ¶ 36662, page 5
[6] Id. at 6.
[3] FAR 42.1503(g): Agencies shall use the past performance information in CPARS that is within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), e.g., terminations for default or cause.