past performance | The Contracting Education Academy

February 25, 2021 By cs

New final rule limits use of LPTA

Businesses and consumers make complex trade-off decisions every day when buying and selling supplies and services.

Sometimes it makes sense to pay more or charge more for a supply or service when quality improvements, added features, or other considerations justify the price. Other times, paying more or adding features provides no meaningful benefit so we opt for the least expensive item that satisfies our needs.

The federal government uses this same framework, dubbed the “best value continuum,” in negotiated acquisitions. On one end of this continuum is a full trade-off, where non-price factors, e.g., quality and past performance, take precedence over price. On the opposite end of the continuum is the lowest price technically acceptable (LPTA) process. Under LPTA, the government determines its minimum acceptable technical requirements and then seeks to award a contract to the lowest priced offeror who meets the minimum requirements.

Federal agencies have been criticized for overusing the LPTA source selection process, based on the concerns that LPTA procedures chill innovation and hamstring agencies who could benefit from trading cost or price considerations for technically superior capabilities. The business community also criticized government reliance on LPTA to purchase safety-related items; such items should not be purchased based on minimum standards.

In response to these criticisms, Congress included Section 880 in the Fiscal Year (FY) 19 National Defense Authorization Act (NDAA), stating: “[i]t shall be the policy of the United States Government to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the government the benefits of cost and technical tradeoffs in the source selection process.”

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/1034008/you-get-what-you-pay-for-new-final-rule-limits-use-of-lpta

See Jan. 14, 2021 Final Rule affecting LPTA at: https://www.govinfo.gov/content/pkg/FR-2021-01-14/pdf/2020-29087.pdf

December 2, 2020 By cs

New small business rules: Capabilities of small business joint venture members and first-tier subs

The U.S. Small Business Administration (SBA) has published a long-awaited rule that made important changes to numerous small business contracting programs and the rules Federal agencies must follow when contracting with small businesses.

These changes went into effect on November 16, 2020. You can read a summary of the rule here and read the rule itself here.

Here, we take a closer look at changes in the way procuring agencies will have to consider the past performance, experience, security clearances, capabilities, and certifications of small businesses and small business joint ventures.

To understand why the new rule is important, it’s useful to consider the current state of affairs. When businesses compete for Government contracts, they often create joint ventures or put together subcontractor teams with different companies complementing each other’s capabilities and experience. In general, procuring agencies have had wide latitude in being able to specify on a procurement-by-procurement basis the extent to which the prime offeror itself must have certain capabilities and experience, and the extent to which the offeror may rely upon subcontractors or joint venture members to fill in any gaps.

There currently is one principal exception to that wide latitude. When an offeror is a small business joint venture, the procuring agency is required to consider the past performance and experience of the joint venture members (including of any large business mentor joint venture member) as the past performance and experience of the joint venture itself. 15 U.S.C. § 644(q)(1)(C); 13 C.F.R. § 125.8(e) (Dec. 27, 2016).

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/999586/new-small-business-rules-capabilities-of-small-business-joint-venture-members-and-first-tier-subcontractors

October 15, 2020 By cs

Call to change how agencies rate contractor performance rises to new level

Let’s start out with this basic truism: No one likes the current approach to rating contractor performance.

Neither the agency contracting officers nor program managers, and not the vendors who sometimes wait three to six months after the contract is complete to get a mostly meaningless “satisfactory” rating.

The data itself lacks value and transparency.

And, to be honest, it seems to have become another checklist activity for many agencies.

A new survey by GovConRx and the Office of Federal Procurement Policy shows, once again, just how little value there is in the current approach to contractor performance assessment ratings (CPARs).

Keep reading this article at: https://federalnewsnetwork.com/reporters-notebook-jason-miller/2020/10/call-to-change-how-agencies-rate-contractor-performance-rises-to-new-level/

September 8, 2020 By cs

GAO affirms denial of protest by contractor who failed to submit an adequately written proposal

The Government Accountability Office (GAO) recently denied a protest brought by a contractor who failed to submit an adequately written proposal for the award of a federal contract.

In Patriot Defense Group, LLC (B-418720.3, August 5, 2020, 2020 WL 4501318), the decision breaks no new ground legally but it serves as a timely reminder of how failure to identify the assumptions upon which a proposal is based will yield a disappointing result.

The details of this case begin with the Request for Proposals (RFP).

The U.S. Special Operations Command issued a request for proposals for multiple indefinite delivery/indefinite quantity (IDIQ) contracts to provide a variety of professional, technical, management, and administrative services. The RFP recited that an award would be made to all “qualifying offerors,” defined as offerors that received a pass rating for administrative and responsibility matters, an acceptable rating for an IDIQ evaluation factor, and a substantial confidence rating for past performance.

Among other things, offerors were required to submit a minimum of three past performance information sheets for contracts which were relevant to each offeror’s ability to perform the work described in the RFP. Prior contracts were to be assigned past performance relevancy ratings. The RFP warned offerors that they were required to include a rationale supporting the assertion of relevance. They were also to describe in detail how the company’s past performance on each contract applies to the “relevancy criteria” identified in the RFP.

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/982362/gao-affirms-denial-of-protest-by-contractor-who-failed-to-submit-an-adequately-written-proposal

January 6, 2020 By cs

GSA Schedule applicants now must demonstrate past performance through CPARS, customer references

The General Services Administration (GSA) no longer utilizes Dun & Bradstreet (D&B) reports to check the performance of companies wishing to sell to the federal government through the multiple award schedules (MAS) program.

Use of the D&B reports — known as Open Ratings Past Performance Evaluations — was discontinued in December.

MAS offerors now demonstrate their performance records through one of two means:

Verifying in their eOffer submittal that they have three or more CPARS assessment reports that meet the solicitation criteria, or
Submitting a past performance narrative and list of customer references as outlined in the solicitation.

If the offeror uses the second option, GSA will contact each customer reference and request they complete a past performance questionnaire. A copy of the questionnaire can be downloaded here: GSA MAS Past Performance Questionnaire.

Source: https://interact.gsa.gov/document/open-ratings-retirement-and-past-performance-requirements-new-mas-offerors

Businesses and consumers make complex trade-off decisions every day when buying and selling supplies and services.

The U.S. Small Business Administration (SBA) has published a long-awaited rule that made important changes to numerous small business contracting programs and the rules Federal agencies must follow when contracting with small businesses.

Let’s start out with this basic truism: No one likes the current approach to rating contractor performance.

The Government Accountability Office (GAO) recently denied a protest brought by a contractor who failed to submit an adequately written proposal for the award of a federal contract.

The General Services Administration (GSA) no longer utilizes Dun & Bradstreet (D&B) reports to check the performance of companies wishing to sell to the federal government through the multiple award schedules (MAS) program.

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