Chapter 1

PAST PERFORMANCE IN CONTEXT

Past performance is frequently a central element of the process used by nearly all government agencies when they evaluate companies and proposals to determine which ones will be awarded contracts. A company’s past performance therefore helps connect it to the government agency acquiring products or services. For this reason, a strong grasp of past performance and its core components is essential to understanding the role it plays in government contracting. The three main elements of past performance are relevance, experience, and performance. The specific differences and similarities between these elements depend on the interpretation and use of past performance information by the government agency.

Most individuals who work for someone else are subject to and familiar with a close analogy to past performance—that of the performance evaluations commonly used to determine pay and pay raises, recommendations for promotion, or otherwise ensure they are an asset to the companies they work for. Performance evaluations are by their nature backward-looking; the evaluation is necessarily of performance that has already occurred; hence the word “past.” The use of firm past performance by the government is similar. The government uses past performance as an evaluation factor to determine the fit and positive impact that a specific business entity would have on the project for which it has created a solicitation.

To closely and accurately analyze the history of a firm, we must examine how it has conducted its business in the past and determine whether it has the specific proven expertise that lends strength to its past performance evaluation in context. For example, a shipbuilding entity likely has experience building ships—that is a fairly safe assumption. The key is identifying the business’ exact experience that is beneficial to the project it is vying for. Does its experience lie in laying keels or putting up sides? Or does it outfit interiors or install command and control systems? Is its experience in building one rowboat at a time as a jobber to a major shipbuilding company, or is it as a prime contractor managing the design and build-out of a new line of advanced frigates? The experience must be linked to the project the contractor is bidding on. This is the concept of relevance.

Many business schools teach a lesson regarding the individual who claims to have 20 years of “experience.” Claims such as that are not particularly interesting or noteworthy. After all, it does not tell us anything specific about the person or the experience. People commonly may have been employed in a particular field for the past 20 years. But have they grown their expertise during their career, or become specialists? Some people shy away from opportunities to learn and continue to grow professionally; they essentially have one year of experience 20 times over. It’s people who continue to educate themselves, challenge themselves, and make strides to become up-to-date experts in certain areas who can truly claim 20 years of experience. This is the concept of experience.

But a firm’s raw experience, while important, is not as critical as its performance. Government agencies need to know how well a firm has performed its project responsibilities in the past. The shipbuilder may have built the ship’s hull, but it is important to know that the ship stayed afloat, demonstrated maneuverability suitable for naval operations, and achieved other desired results, such as crew survivability or increased time between maintenance. This is the concept of performance.

DEFINITION

Our reference to the “system” of collection, retention, and use of past performance information is meant to refer to the overall ecosystem, meaning the aggregate of behaviors, methods, norms, and so on that make up the commonalities of collection, evaluation, retention, and use of past performance information across the government contracting market. The Federal Acquisition Regulation (FAR) has definitions for more than 247 terms that relate to procurement, and in FAR 2.101 defines past performance as an offeror’s or contractor’s performance on active and physically completed contracts. In the FAR, the term past performance appears approximately 20 times spelled out and a little more than 100 times abbreviated as PP. It is apparent that past performance is a substantial part of the government acquisition process although it is minimally defined, perhaps because it is an all-encompassing concept that involves many details and varying perspectives. Whatever the reason for the simple definition, knowledge and awareness of how past performance is evaluated are critical to successful proposals to perform government work.

One of the most succinct definitions of past performance is that it is an evaluation factor (Edwards, 1995). Past performance defined as an evaluation factor distinguishes it from past performance information, or relevant information about a contractor’s actions under previously awarded contracts (Edwards, 1995 and 2005). In this volume, however, we will not limit the term past performance to an evaluation factor and will use the definition put forth by Edwards in 1995:

COLLECTING PAST PERFORMANCE INFORMATION

Government agencies have several methods of collecting past performance information that shows relevant experience and performance. They can review files from prior contracts, evaluate the information submitted by the offeror in a proposal, and reach out to a firm’s past customers with direct conversation by e-mail or phone or they may use questionnaires. Other sources and information that the government refers to are law enforcement bureaus, the Better Business Bureau, consumer protection agencies, business credit reports, and other measures of creditworthiness (Edwards, 2005).

It is also important for contractors to know that their past clients are satisfied. If a client hesitates to give thoughtful positive feedback to address concerns, or a mutually acceptable compromise cannot be reached, then consideration should be given to not using that client as a past performance reference.

If an offeror becomes aware of the potential that a specific client may provide negative feedback if queried about the firm’s past performance, it typically has time to respond and should do so. The evaluating government agency that first discovers or becomes aware of negative past performance information has the responsibility to inform the firm of the adverse information and allow them an opportunity to respond, rectify, or provide supporting documentation that presents its perspective on the information (FAR 15.306).

An unintended result of the increased use of past performance and associated queries to government personnel, such as past performance questionnaires (PPQs) and contractor performance assessment reports (CPARs), is PPQ/CPAR fatigue. Government clients of frequently bidding firms become annoyed or burdened by the associated “hurry up and submit them” PPQ requests. This fatigue is evident in some agencies’ decisions to not provide PPQs or participate in other forms of customer satisfaction surveys and measurements.

EVALUATING PAST PERFORMANCE

As stated, three main criteria make up the standards for evaluating past performance (Nash et al., 1998):

• Observation of a company’s historical facts

• Qualitative judgments about the breadth, depth, and relevance of projects

• Qualitative judgments regarding how a company performed based on observations.

These three criteria allow the government to get the full scope of a bidder’s ability to do a similar project in the present or future.

Organizations should develop a portfolio of past performance projects that gives them relevant experience for the types of contracts that they wish to bid on. The government evaluates a contractor’s actions under previously awarded contracts, including its ability to meet contract specifications, provide good workmanship, control costs, keep to a schedule, cooperate and otherwise exhibit reasonable behavior, achieve high customer satisfaction, and demonstrate concern for customer well-being (FAR 42.1501).

We mentioned earlier that experience and past performance are often used interchangeably. This holds true in the FAR. However, some government agencies show differences between the two. Although the FAR does not specifically define experience, agencies define it as the kind and amount of work that an offeror has done. This definition distinguishes experience from past performance as an assessment of how well an offeror did in past work, and it is the meaning used in this book.

One of the best things about experience from an organizational or government point of view is that it presents opportunity to learn from errors, improve systems, and grow. This inevitably improves an organization’s relevant experience because it will develop a history of problem-solving—or, better yet, problem prevention.

Relevant Experience as It Relates to Past Performance

Depending on the specific circumstances under which past performance is being evaluated, in addition to the past performance and experience of the firm, the past performance and experience of key personnel, subcontractors, predecessor companies, and project managers may be cited in a proposal. Including individuals or organizations in a proposal that are not proposed as an active part of the project being bid is less relevant than referencing individuals and organizations that are proposed. The focus must remain on highlighting the relevant experience within the abilities of the individuals or organizations that will be involved with the project the firm is bidding on. This is reaffirmed by FAR 15.305, which states that evaluations should take into account past performance information regarding predecessor companies, key personnel with relevant experience, or subcontractors that will perform major or critical aspects of the solicitation requirements of the project being bid on, when such information is relevant to the acquisition.

There are two opposing, complementary approaches an evaluation scheme can take to relevant experience for past performance purposes. These approaches can be blended in a variety of ways. One is to accept the performance of an offeror’s project managers, key personnel, and subcontractors as past performance for that offeror. The other option is to evaluate the offeror on its own record and specifically exclude the performance of its project managers, key personnel, and subcontractors. The first option can obscure the fact that an offeror may have no relevant experience as a company for this specific bid. This is especially true if it hires people who have relevant experience just for the project and purposes of submitting the proposal (Edwards, 2005).

Firms new to the government contracting market, of course, must have a starting point, which may appear to an evaluator as a lack of relevant experience. FAR 15.305 states a “neutral rule” that in cases where an offeror has no relevant past performance experience or for whom information on past performance is not available, that offeror may not be evaluated—favorably or unfavorably—on past performance. The spirit and intent of this rule is that a firm with no record of performance is different from a firm with a record of poor performance. To maintain this spirit, the comment “none” or “no record” will usually be incorporated into the review when there is no relevant experience. The information is neither good nor bad: One cannot give a negative review of something that does not exist.

Although the government may not downgrade a contractor for lack of relevant experience under the neutral rule, that does not mean that contractors without relevant experience will be rated as favorably as an offeror that has sound relevant experience. This is important to keep in mind, and a bidder must include details and emphasis in other sections of the proposal to give strength and merit to the offeror’s proposal when the offeror has no relevant past performance.

Relevant is loosely defined by the government. Most offerors should be able to find some past experiences to place in the relevant experience area. It may seem a reach at times, but if it shows initiative, determination, and successful results, it will speak positively about the aspirations and potential of the contractor. If done correctly (see Chapter 5), this is more favorable than “none” or “no record.”

Use of Past Performance as an Evaluation Factor

Both buyers (agencies) and sellers (bidders/offerors) evaluate past performance and have much at stake when doing so. However, the government is working to award a contract and the bidder is working to get the best rating and receive the award. The purpose of past performance as an evaluation factor is to help the government distinguish between offerors who are vying for government contracts. Bidders, on the other hand, are evaluating their own performances to select those projects that maximize their past performance evaluations.

The most effective way for a firm to relate or share past performance experiences is through telling a story. Thinking of the presentation of past performance information as a story helps to lay out the scenario, show the solutions that were developed and used, detail any obstacles and how they were overcome, and demonstrate the outcome and impact of the firm’s efforts on the agency’s mission.

Use of Past Performance by the Buyer

Past performance evaluations are used by the buyer to assess the risk of award to a specific offeror—the “risk” of satisfactory performance if an award is made to that specific offeror. When considering an offeror’s record of past performance, government agencies can and may evaluate the past performance information gleaned from an offeror’s proposal along with information from other sources, such as the evaluating agency’s direct knowledge, government repositories (e.g., the Past Performance Information Retrieval System), or direct conversation with/questionnaires from other government agencies. However, the relevant experience that a contractor relates through the past performance stories in its proposal, in most cases, will be the primary and in many cases the only source of past performance information used by the evaluating agency to determine the qualifications and value of the contractor.

The information that the government is looking for will be specified in the solicitation. Straying from what is requested will not usually result in a favorable outcome for the offeror. For example, as an offeror, you may have a completed project that went phenomenally well—it may even be your crown jewel. But if that experience does not relate to the upcoming project, it will not help obtain a more favorable rating from the government agency.

The stories that an offeror tells are evaluated, analyzed, confirmed, and weighted by the government evaluation team or evaluator. The specific approach used to perform this evaluation is dependent on numerous factors, including the size and scope of the procurement, the level of competition expected or achieved, and the availability of government personnel to perform the evaluation. Government personnel have varying degrees of knowledge, experience, and skills in conducting these evaluations. Their ability to dissect the pertinent past performance information submitted and discern the important and relevant elements is at the heart of the evaluation. That is why a well-told story, based on fact, is so important for a firm that wishes to succeed in the competitive government contracting market.

Use of Past Performance by the Seller

Stories and other elements of past performance information that a contractor shares in its bid for government work should express the unique pieces of information that help it stand apart from other offerors. Reporting a success with “We did teamwork, found solutions to unexpected problems, and reached a satisfactory conclusion” is not a unique story. Organizations need to provide specific details and to elaborate how the conclusion would have been different had anybody else been involved. These details create the distinction between a firm’s experiences being truly unique and the firm’s merely hoping they are unique.

When an organization is attempting to sell its goods or services to a government agency, it must use its past performance to show the relevance of the work it has done previously and carry it to the present. However, government agencies typically limit the inclusion of past performance information in proposals to a time period, such as the previous three or five years.

Stories persistently retold in organizations, such as those presented in proposals submitted to government agencies, maintain an organization’s identity. These stories are either influenced by the organization or they are not. There is a saying about social media: The question is not whether you have a social media presence. You do—you just might not have created it yourself. Past performance is a similar phenomenon. Sellers cannot dictate their identities to a buyer, at least not as much as they would like to. Some stories about firms are told by others, as in Contractor Performance Assessment Reporting System (CPARS) reports for example. Sellers do describe their past performance and explain “who they are” to the best of their ability, and many times these descriptions are tailored to very specific audiences of buyers. Buyers rely upon stories from multiple sources to determine the seller’s identity and to understand the seller’s identity in the specific context of a bid or purchasing decision.

Because people are attracted to organizations with persistent stories that end in positive outcomes, contractors must create factually accurate stories that show how their abilities and efforts led to the desired results for their customers. In the same way, evaluators are attracted to stories of past performance that are easily relatable to their current requirements and challenges—and that make it very clear the contractor not only has achieved positive outcomes in the past but can achieve them in the future. The most common organizational story has the following script: organizational members confront a problem, the employees take action, and the problem is either solved or not. Past performance guidance in solicitations, without using this language, frequently asks for these elements in proposals.

Whatever script is followed, the stories a contractor tells about its past performance will be viewed as either favorable or unfavorable by the evaluator. The aspiring bidder needs to find ways to make the story both unique and relevant to the evaluating audience by detailing specific actions taken to reach a favorable outcome for past customers.

PROBLEMS WITH PAST PERFORMANCE

The Government Accountability Office (GAO) noted in 2009 that “contracting officials” agreed that for past performance information to be useful for sharing, it must be documented, relevant, and reliable. However, GAO’s review of the Past Performance Information Retrieval System (PPIRS) data for fiscal years 2006 and 2007 indicates that only a small percentage of contracts had a documented performance assessment and that reluctance to rely more on past performance was due in part to skepticism about the reliability of the information and difficulty assessing relevance to specific acquisitions (GAO, 2009).

HISTORY OF GOVERNMENT USE

Use of past performance is not a new concept in the government’s buying decisions; however, the “mandatory” use of past performance as a source selection evaluation factor is a recent phenomenon, as is the collection and centralization of past performance information (Nash et al., 1998). Nevertheless, the government has increasingly relied on past performance in source selection decisions. As a result, increasing the collection, evaluation, documentation, and utility derived from past performance information as an evaluation factor (and in the adjudication of contractor performance incentives, as discussed in Chapter 5) has been the subject not only of numerous acquisition regulations and policies but also of repeated reform efforts and highly critical government watchdog reports.

The first notable attempt to formalize the use of past performance information in government procurements occurred in the early 1960s. This was precipitated in part by growing pressure to achieve more competition in procurements, following a period marked by heavy use of sealed bidding procedures that had the effect of limiting bid evaluations to price and technical compliance. During that decade, procurement methods that included the adoption of contractor performance evaluation programs were created (Whelan, 1992). For example, the Department of Defense (DoD) implemented a departmentwide past performance evaluation system in 1963 that was subsequently abandoned in 1971 after a conclusion that the benefits of the system did not outweigh the costs. ⁴

Since then, several significant legislative and regulatory developments prescribing the use of past performance information have led to the concept of past performance as it is understood and used today. (Exhibit 1-A, at the end of this chapter, provides a more detailed timeline of events and regulations of significance in the history of past performance use by the government.)

Competition in Contracting Act (1984)

In 1984, the Competition in Contracting Act was passed to ensure increased competition for government contracts, which was to result in reduced costs of purchased goods and services. The act formally defined a “responsible source” of services and supplies. Among other attributes, a responsible source or contractor has a satisfactory performance record and a satisfactory record of business ethics.

Brooks Act (1992)

The Brooks Act amended the Federal Property and Administrative Services Act of 1949 to address what had been viewed as a propensity to award contracts to the lowest-priced bidder without paying adequate attention to the qualifications of the awardee to design and manage projects with significant public safety elements, such as bridges and highways.

This act established a procurement process to select architect and engineering firms for award of design contracts by the government, codifying a qualifications-based selection process. This process focused on the negotiation of contracts following a firm’s selection based on demonstrated competence and professional qualification for the services required. Under this qualifications-based process, price quotes are not initially considered.

If the agency is unable to negotiate a satisfactory contract with the firm considered to be the most qualified, at a price determined by the government to be fair and reasonable, negotiations with that firm end and new negotiations are begun with the second most qualified firm, and so on until a contract is awarded. This process is still followed today and is an exemplar for the use of past performance information as a primary source selection evaluation factor.

Federal Acquisition Streamlining Act (1994)

The Federal Acquisition Streamlining Act amended provisions enacted by the Competition in Contracting Act and other federal procurement law. Its purpose was to simplify the federal procurement process by reducing paperwork burdens, facilitating the acquisition of commercial items, enhancing the use of simplified procedures for small purchases, increasing the use of electronic commerce, and otherwise improving procurement process efficiency.

The act established a governmentwide requirement to formally document contractor past performance and to use past performance information to evaluate sources, make source selection decisions, and make responsibility determinations. The original threshold for this mandate was that all agencies must evaluate every prime contractor’s performance on contracts in excess of $1 million. This threshold was decreased to $100,000 in January 1998.

Clinger-Cohen Act (1996)

The Clinger-Cohen Act established a comprehensive approach for executive agencies to improve the acquisition and management of their information resources. This act established the chief information officer position at agencies and created a program to use solutions-based contracting for acquisitions of information technology that relied upon source selection factors emphasizing the qualifications of the offeror. These offeror qualifications included as factors personnel skills, previous experience in providing other private or public sector organizations with solutions for attaining objectives similar to the objectives of the acquisition, past contract performance, qualifications of the proposed program manager, and the proposed management plan. Although the act did not specifically call out “relevance,” it did emphasize considering a broader range of past performance experiences that could be considered relevant, such as commercial work performed and the experience of key persons.

Elements of the Brooks Act were repealed by the Clinger-Cohen Act, but the use of qualifications-based selection continues and is included in FAR part 36.

Office for Federal Procurement Policy Guide (2000)

The Office for Federal Procurement Policy (OFPP) has the authority to prescribe guidance for executive agencies regarding standards for evaluating the past performance of contractors and collecting and maintaining information on past contract performance. In 2000, OFPP published discretionary guidance in a best practices guide available online. ⁵

In the guide (Best Practices for Collecting and Using Current and Past Performance Information), OFPP states that agencies are required to assess contractor performance after a contract is completed and that they must maintain and share performance records with other agencies. The guidance encourages agencies to make contractor performance records an essential consideration in the award of negotiated acquisitions, and it gives guidelines for evaluation.

OFPP noted the importance of distinguishing comparative past performance evaluations used in an evaluation trade-off process from pass/fail performance evaluations. It goes on to point out that a comparative past performance evaluation conducted using a tradeoff process seeks to identify the degree of risk associated with each competing offeror, i.e., that the evaluation describes the degree of confidence the government has in the offeror’s likelihood of success.

The guide also encourages agencies to establish automated mechanisms to record and disseminate performance information. Performance records should specifically address performance in the areas of cost, schedule, technical performance (quality of product or service), and business relations, including customer satisfaction, using a five-point adjectival rating scale (i.e., Exceptional, Very Good, Satisfactory, Marginal, and Unsatisfactory; OFPP, 2000).

Contractor Performance Assessment Reporting System (2004)

CPARS originated in 1996 and has been designated as the DoD’s solution for collecting contractor performance information since 2004. CPARS has since evolved into the government enterprise solution for collection and retention of contractor past performance information. The titling of the program, program elements, and references in user guides and reports in the system were revised to remove DoD specifics in 2011. CPARS refers to this system in its entirety. The main activity associated with this system is the documentation of contractor and grantee performance information that is required by federal regulations. This is accomplished in web-enabled reports referred to as CPARS reports. CPARS currently contains three modules:

1. CPARS for performance assessments on systems, services, IT, and operations support contracts

2. Architect-Engineer Contract Administration Support System (ACASS) for performance assessments on architect-engineer contracts

3. Construction Contractor Appraisal Support System (CCASS) for performance assessments on construction contracts.

Department of Defense Inspector General Report (2008)

The efficiency and accuracy of government contract awards being reported to CPARS was reviewed by the DoD inspector general in 2008 (in Contractor Past Performance Information). It found that government acquisition officials do not have all the past performance information needed to make informed decisions related to market research, contract awards, and other acquisition matters. It also noted that CPARS did not contain information on all active system contracts over $5 million. Of the reports that should have been in CPARS, 39 percent were registered more than a year late, 68 percent had performance reports that were overdue, and 82 percent did not contain detailed, sufficient narratives to establish that the past performance ratings they contained were credible and justifiable.

In response to this report, one of the actions being taken by DoD is to remove any records in the system for contractor performance that began in 2007 or earlier for which no action other than contract data entry has occurred.

Duncan Hunter National Defense Authorization Act (2008)

This bill was first introduced in 2008 by Senator Carl Levin of Michigan and became law on October 14, 2008. Its purpose was to authorize appropriations for the fiscal year 2009 for all DoD military activities. This act emphasized the use of past performance information systems and the use of past performance in source selections by requiring the Administrator of General Services (Office of Management and Budget) to establish and maintain a database of information regarding the integrity and performance of grant and contract awardees of federal agency contracts and grants above the threshold of $500,000 for use by contracting officials.

The act also requires agency officials responsible for contract or grant awards to review the database of past performance information and to consider other past performance information available with respect to the offeror in making any responsibility determination or past performance evaluation for such offeror. The act also requires documenting in contract files the “manner in which the material in past performance databases was considered” in any responsibility determination or past performance evaluation.

Contractor Performance Assessment Rating System Policy (2011)

The CPARS policy and guidebook underwent significant revisions between 2011 and 2014 to reflect changes in the evolving user base, changes to the FAR, and changes in the way the system is used. This policy document and guide states that the contractor performance evaluations contained in CPARs are a method of recording contractor performance and should not be the sole method for reporting on it to the contractor. Government policy is that CPARs should be an objective report of contractor performance during a period against contract requirements. Completing CPARs is the responsibility of the designated assessing official, who may be a program manager or the equivalent individual responsible for program, project, or task/job/delivery/order execution. It may also mean the performance evaluator, quality assurance evaluator, requirements indicator, or contracting officer’s representative. CPARS information is passed to the PPIRS.

FAR 42.15 Revision (2013)

FAR 42.15, on contractor performance information, was revised in September 2013 to detail and standardize the when, where, who, what, and how of contractor performance evaluation and documentation. Existing contractor appeals processes were left in place. The revision made clarifying language changes along with these four significant revisions:

• 42.1502 states that past performance evaluations for contracts and orders should be prepared at least annually and when the work under the contract or order is completed.

• 42.1503(b) adds a new requirement that past performance reports must include a clear, nontechnical description of the principal purpose of the contract or order and standardizes past performance evaluation factors. The subpart also includes a minimum set of evaluation factors and a standardized rating scale. The minimum factors include:

• 42.1503(c) adds a new requirement that agencies enter any award-fee performance adjectival rating and incentive-fee contract performance evaluations into CPARS.

• 42.1503(e) adds a new requirement that agencies conduct frequent evaluations of agency compliance with past performance evaluation requirements.

Although the collection of past performance information is currently required and specified in FAR 42.1502, an important distinction to note is that there is discretion regarding whether past performance has to be used as a source selection factor. ⁶

Much energy and effort has been applied toward improving the collection and retention of and access to contractor past performance information by the government, in particular by DoD. Progress is slow, and by most accounts neither long-term goals (standardize contracting ratings used by agencies, provide more meaningful past performance information, develop a centralized questionnaire system for sharing government wide, eliminate multiple systems that feed performance information into PPIRS) nor short-term goals (revising the FAR to mandate the use of PPIRS) for past performance information management have been achieved in a timely fashion, if at all. This can be attributed to an underestimation by government agencies of the challenges involved.