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ACC Practice Center > Contracting > Process and Mission Areas > Source Selection > Post Solicitation Process > Receipt of Proposals > Can one contractor...

Can one contractor evaluate another contractors past performance during a source selection? (7 answers)

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Private

I recall a memo that stated the evaluation of Past Performance was an Inherently Government function therefore a contractor could not provide that service during a source selelction but I cannot find that memo.

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Private

Feb 20, 2013

If the two contractor's are competing against one another, there would be extreme bias. What third party contractor would have the historical performance data needed to make an accurate assessment, unless they've been hired to provide that statistical data to the USG?

-- Updated Mar 12, 2015 --
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Private

Feb 20, 2013

If you are talking about a past performance report that is entered in CPARS, gathering the information and submitting the report is inherently governmental and cannot be performed by another contractor.

If you are gathering past performance information to evaluate an offeror during a source selection then reports from other contractors who have had past dealings with the offeror may be used as part of the overall evaluation of past performance in addition to the information available in CPARS.
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  Private
  
  Feb 20, 2013
  
  James,
  
  What support do your offer for your assertion that gathering past performance information and submitting the report is inherently governmental? I don't see it listed at FAR 7.503(c).
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    Private
    
    Feb 21, 2013
    
    Limitations are in Appendix A, 14(f) of OFPP POLICY LETTER 11–01 "Performance and Management of Inherently Governmental and Critical Functions."
    
    "(f) administering contracts (including ordering changes in contract performance or contract quantities, making final determinations about a contractor’s performance, including approving award fee determinations or past performance evaluations and taking action based on those evaluations, and accepting or rejecting contractor products or services)"
    
    It can be argued that a contractor may collect past performance information from another contractor for submission to the government, but the evaluation and approval of the past performance report is inherently governmental.
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      Private
      
      Feb 21, 2013
      
      For clarification, when discussing past performance evaluations, we need to remember collection of information, analysis, and evaluation of past performance happens both pre-award and post-award. In pre-award during source selection, the mandatory DoD source selection procedures applies. During a source selection, a KO is prohibited from disclosing past performance information to a non-Government advisor, and non-Government advisors shall not participate in the review and evaluation of past performance information. As for collection of information, the procedures also state proprietary information cannot be disclosed to non-Government advisors unless the offeror submitting their proposal has given consent. Having worked for private industry, I know most private industry considered past performance information proprietary and will not disclose that information even to the contractors they are teaming with on a proposal. I don't know too many contractors who would provide that consent to permit a non-Government advisor to be collecting this information from them, or about them. But this is talking about data collection, pre-award in a source selection by a non-Government advisor. If, while the Government past performance evaluator, is collecting data and finds information about an offeror who they have primed or subcontracted with and obtains information from the prime or subcontractor in that relationship or even about their commercial work, then the Government evaluator can collect and use that information during the evaluation to assess the risk of performance. The Government is not limited to CPARs/PPIRS and FAPIIS data when doing past performance evaluations in a source selection (as long as the Government is following the procedures provided in Section M, evaluation factors of the RFP).
      
      For post-award evaluation, per FAR 42.1503(a), Agency procedures for the past performance evaluation system shall generally provide for input to the evaluations from the technical office, contracting office and, where appropriate, end users of the product or service. Agency procedures shall identify those responsible for preparing interim and final evaluations. Those individuals identified may obtain information for the evaluation of performance from the program office, administrative contracting office, audit office, end users of the product or service, and any other technical or business advisor, as appropriate. Most agency procedures state the KO and COR (both inherently governmental functions within DoD) are responsible for evaluation and submission of past performance information into CPARs/PPIRS. While the FAR states "those individuals identified may obtain information" from "any other technical or business advisor, as appropriate"; first they would need to have knowledge of the contractors performance on the contract; and FAR doesn't say this is a delegable task to another contractor to collect the data.
      
      They used to argue that a contract specialist job could be outsourced and that only the KO job was inherently governmental but over time, that pendulum swung back to not being able to outsource the specialist position...and a few IG reports out there to validate that. Having been a previous contract specialist for a Federal Agency as a contractor, I tend to agree with the IG -- inherently governmental. And while I may be able to argue a position, and even get my agency/legal to buy off on it, a duck is still a duck.
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Private

Feb 20, 2013

Jeremy,

FAR 7.503(c)(12)(viii) lists "Participating as a voting member on performance evaluation boards" as an inherently governmental function.
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Private

Feb 20, 2013

Jeremy, the document you were probably remembering is the mandatory DoD Source Selection Procedures located at acc.dau.mil/dodssp. Paragraph 1.4.5.2. talks about Non-Government Advisors, and specifically 1.4.5.2.2 (provided below) specifically talks about disclosure of past performance information to non-Government personnel is strictly prohibited .

1.4.5.2 Non-Government Advisors. Use of non-Government personnel as advisors may be authorized, but should be minimized as much as possible. Non-Government advisors, other than Federally Funded Research and Development Centers (FFRDCs), shall be supported by a written determination based on FAR 37.203 and 37.204.

1.4.5.2.1 Requirements for use of non-Government advisors. All non-Government advisors shall sign the non-disclosure agreement required to be signed by all Government employees who are participating in the source selection. They shall also submit documentation to the PCO indicating their personal stock holdings prior to being allowed access to source selection sensitive information. In addition, the PCO must ensure that before the non-Government advisor is given access to proprietary information, that the Government has received the consent of the submitting contractor(s) to provide access to the contractor who is to assist in the source selection.

1.4.5.2.2 Limitations on use of non-Government advisors. Non-Government advisors may assist in and provide input regarding the evaluation, but they may not determine ratings or rankings of offerors' proposals. Disclosure of past performance information to non-Government personnel is strictly prohibited (reference DoD Contractor Performance Assessment Report System (CPARS) Policy Guide, Architect-Engineer Contract Administration Support System (ACASS) Policy Guide, and Construction Contractor Appraisal Support System (CCASS) Policy Guide). Accordingly, non-Government advisors shall not participate in the review and evaluation of past performance information. (See FAR 42.1503.)

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Date Created	Tuesday, February 19, 2013 7:25 PM
Date Modified	Tuesday, February 19, 2013 7:25 PM

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