Bill strips contractor reviews from past-performance evaluations

Companies would lose the opportunity to respond to performance reviews written by government officials under a new contracting bill. The reviews often play a major role in winning future contracts.

The Comprehensive Contingency Contracting Reform Act (S. 2139), which was introduced Feb. 29, would revise language in the Federal Acquisition Regulation that gives companies 30 days to comment, provide additional information or rebut a contracting official’s assessment of their work. The same FAR provision requires agencies to provide companies with a copy of the work performance evaluation.

Trey Hodgkins, senior vice president for national security and procurement policy at TechAmerica, said this proposed FAR revision is huge change in procurement. It eliminates the ability for contractors point out mistakes or offer their perspective on circumstances when agency officials view them differently.

“This provision may lead to a bad situation or bad feelings, at least,” Hodgkins said.

A customer agency may be unhappy because it didn’t get what it wanted, although the contractor may have been bound by the firm-fixed price contract that the agency awarded. The result might be a lackluster performance review.

“That’s not unheard of,” Hodgkins said.

Sens. Claire McCaskill (D-Mo.) and Jim Webb (D-Va.) introduced the contracting reform bill, which is based on recommendations from the Commission on Wartime Contracting in Iraq and Afghanistan. McCaskill and Webb created the independent commission in 2007, and the commission issued a final report in 2011.

Among its other provisions, the bill would expand what goes into the Federal Awardee Performance and Integrity Information System, a database of contractors’ past performance and other related information. It would have agencies include information on any of a contractor’s parent or subsidiary entities.

The legislation would elevate oversight responsibilities for procurement officials and enhance management structures for the agencies handling contingency contracting. McCaskill and Webb want procurement training added to education curricula for both professional military and contingency operations. The training would deal with defining requirements and the strategic impacts of contracts on the mission.

The legislation would require justifications for sole-source contracts to handle compelling demands.

The bill has been referred to the Homeland Security and Governmental Affairs Committee for further review.

The Wartime Contracting Commission spent three years investigating contracts in Iraq and Afghanistan. In its final report to Congress, the panel estimated that the United States had lost as much as $60 billion through contract waste and fraud in those countries. The commission also identified major failures in contingency contracting planning, execution and oversight.

It concluded that such waste will increase if officials don’t toughen accountability as U.S. operations wind down, support for programs declines, and major reconstruction projects become unsustainable.

McCaskill, who introduced legislation with Webb to create the commission, has been focused on procurement and contracting reform. She’s chairwoman of the Senate Homeland Security and Governmental Affairs Committee’s Contracting Oversight Subcommittee and also chairwoman of the Senate Armed Services Committee’s Readiness and Management Support Subcommittee.

“When Jim and I got here, nobody was paying attention to the billions of taxpayer dollars being wasted in Iraq and Afghanistan,” McCaskill said in a statement. “But with the roadmap provided by the commission report, we can change the way our government contracts during wartime, and make sure these failures are never repeated.”

Reader Comments

Tue, Mar 6, 2012 Editor

Thanks for sharing your experience.

Mon, Mar 5, 2012 Vanla Arlington, VA

If the Government wishes to put something negative about a company's performance, the company should be permitted to rebut the negative assessment. We have been in a situation where a Government POC got angry at our company because we protested a contract award. We were later vindicated in a court of law. In the protest period the Government official misused his power and started giving our company cure notices and a termination for default which were inappropriately applied. Again we were vindicated in a court of law. The Termination was overturned. Then the re-compete was cancelled and re-procured by another method. The Government official was chastised for his behavious. This behaviour is not that uncommon. All private industry wants is a fair opportunity to comment on past performance assessments. The proposed Bill would allow abuse to continue and possibly get worse.

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