Pillsbury Winthrop Shaw Pittman LLP

Past Performance Information Retrieval System (“PPIRS”) and Past Performance IssuesDaniel S. Herzfeld – Counsel

daniel.herzfeld@pillsburylaw.com

703.770.7612

July 22, 2010

1 | PPIRS

Past Performance As Evaluation Factor in Source Selection

Generally, “past performance shall be evaluated in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold.”FAR 15.305(c)(3)(i).

Simplified Acquisition Threshold is generally $100,000. FAR 2.101 (Contingency Operation or Defense Against Nuclear/Biological/Chemical/Radiological Attack - $250,000 within U.S.; $1 million outside)

Frequently a factor in General Services Administration’s Federal Supply Schedule (i.e. Multiple-Award Schedule) Orders. FAR 8.405-1(c)(3)(1).

2 | PPIRS

What is the Past Performance Information Retrieval System? PPIRS

PPIRS is a centralized database of past performance information.

“Agencies shall submit past performance reports electronically to the Past Performance Information Retrieval System (PPIRS) at www.ppirs.gov.”FAR 42.1503(c).

3 | PPIRS

PPIRS – Centralizing Past Performance Data

FAPIISAccessed through PPIRS

National Institutes of HealthContractor Performance System

Contractor Performance Assessment Reporting System

(CPARS)

Other Agency Databases

PPIRS

Terminationsfor Default

(Proposed Rule)

4 | PPIRS

Past Performance Evaluations MustBe Prepared By Agencies. FAR 42.1502

When Is An Agency Required To Prepare Evaluation?Completion of Contract or Order.Interim Evaluations – If contract performance exceeds one year.

What Types Of Contracts & What Thresholds?Construction Contracts of $550,000 or More.Federal Supply Schedule Orders Exceeding Simplified Acquisition Threshold.Single Agency Task Orders or Delivery Orders Exceeding Simplified Acquisition Threshold Where More Useful Than Evaluation of Overall Contract.Architect-Engineer Contracts of $30,000 or More.All Other Contracts Exceeding Simplified Acquisition Threshold.

5 | PPIRS

PPIRS - You Can Lead a Horse to Water . . .

Agencies must prepare evaluations.

BUT . . .

They don’t have to actually use them in source selection decisions:

“Language was revised to delete the phrase ‘For source selection purposes’ in order to clarify that this language deals with retention of past performance information rather than required procedures to be utilized in a source selection.” 74 Fed. Reg. 31556, 31559 (July 1, 2009).

6 | PPIRS

PPIRS Or Other Sources May Be Usede.g. FAR 13.106-2(b)(3)(ii)

PPIRS;

Contracting Officer’s Knowledge;

Customer surveys;

Past Performance questionnaires; or

Any other reasonable basis.

7 | PPIRS

How do contractors see and comment on evaluations in PPIRS?

A Contractor can gain access to the past performance ratings in PPIRS through its Contractor Central Registration – www.ccr.gov

8 | PPIRS

PPIRS – What It Should Look Like When You Get In: http://www.ppirs.gov/ppirsfiles/pdf/ppirssrusrman1109.pdf

9 | PPIRS

PPIRS – Assessment Reports

10 | PPIRS

PPIRS – Example of CPARS Report Card

11 | PPIRS

Challenges to Past Performance Ratings:

Agencies must allow contractors to comment on and challenge past performance ratings:

“Contractors shall be given a minimum of 30 days to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation.” FAR 42.1503(b).

12 | PPIRS

PPIRS – Challenging Ratings.

13 | PPIRS

Can you dispute a PPIRS or other Contractor Evaluation? Yes.

Submit a claim under the Disputes Clause of the contract. asking for a contracting officer’s final decision. FAR 52.233-1.

The Government cannot avoid the Disputes Clause – as it has attempted to do with some CPARS report cards – by attempting to state that the contracting officer (or a level above) is an unappealable final determination. Colonna’s Shipyard, Inc., ASBCA No. 56940, 2010 WL 2676460.

14 | PPIRS

Can you appeal or file suit to reverse the contracting officer’s final decision? Yes.

File Suit at the U.S. Court of Federal Claims for declaratory relief:Record Steel & Constr., Inc. v. United States, 62 Fed. Cl. 508 (2004).Todd Constr., L.P. v. United States, 85 Fed. Cl. 34 (2008) & 88 Fed. Cl. 235 (2009).BLR Group of Am., Inc. v. United States, 84 Fed. Cl. 634 (2008).

Appeal to a Board of Contract Appeals – Not all the Boards have concluded they have jurisdiction:

Armed Services Board of Contract Appeals: Versar, Inc., ASBCA No. 56857, 10-1 BCA ¶ 34437.

15 | PPIRS

Can you wait to challenge finalized ratings during a bid protest? Probably Not.

“[A] bid protest is not the proper forum, under FAR § 42.1503(b), to litigate [Contractor Evaluation Form] disputes.” Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed. Cir. 2005).

“Our bid protest forum is not the place for a firm to first complain of not having received an assessment, nor do we serve as a forum for a firm to dispute the substance of an agency’s assessment of the firm’s work . . . .” Ocean Tech. Servs., Inc., B-288659, Nov. 27, 2001, 2001 CPD ¶ 193 at 5.