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By Steve Kelman

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What McCaskill is missing about past performance data

steve kelman

Last week Senator Claire McCaskill (D-Mo.) held a hearing to complain about the lack of negative information about contractors in the government’s past performance database, citing specifically that there were no negative reports about BP – the company responsible for the huge Deepwater Horizon oil spill – and that CGI’s most-recent past performance rating before its role in HealthCare.gov was exceptional.  You could learn more about a company by Googling it, she complained, than by consulting the government’s past performance information.

As somebody who basically cut his teeth in government contracting on an effort to allow the government to use past performance in making source selection decisions – until the 1990s, it was not allowed! – I will confess to reacting to McCaskill’s point of view with mixed feelings. On the one hand, I definitely agree with her that the problem is rooted in agencies' reluctance to flag poor performance. "It’s almost like if a contracting evaluator gives negative information, they know they are going to get blowback from the contractor, right?" the senator said. “We let things slide because it’s too hard to fight it.’” This is indeed the biggest single problem with the past performance system as it currently operates.

I also like her reference to getting information on companies by Googling them. I am guessing that it would be legal now for the government to use information from a Google search in making past performance evaluations as long as the government states in the RFP that it intends to do Google searches and might use the information in source selection. I actually think Google searches might sometimes bring useful information into the process.

However, I take issue with the tone of McCaskill’s approach, which on the whole is very punitive.

The purpose of past performance evaluation, in her view, is to track down and weed out bad actors. Yes, that is part of the purpose. But the goal of the system should also be to reward good contractors, and in particular to give an opportunity to recognize work that goes above and beyond minimum contract requirements in seeking to help the government customer. The punishment-only approach is bad psychology and bad management, even if it may be good politics.

We should also note that negative information in past performance reports involves only a specific government contract, so it’s not surprising that BP’s Deepwater Horizon debacle was not there. And it’s also unclear from what McCaskill said whether she was talking only about one CGI past performance report, on the firm’s then-most-recent contract.

I applaud the senator's interest in this important issue, and there is something practical she could do about it. The Federal Acquisition Regulation currently allows contractors who do not like their evaluations to complain one level above in the system. This provision – which I signed off on against my better judgment in 1994 as Office of Federal Procurement Policy Administrator – should be eliminated, and replaced by a simple opportunity for the contractor to put their version of events into the file. This would go a long way toward reducing the problem that is troubling McCaskill.

Note: This article was updated on March 17 to correct Sen. McCaskill's first name.

Posted by Steve Kelman on Mar 13, 2014 at 5:27 AM


Reader comments

Fri, Mar 28, 2014

Perhaps, what the senator should do is push for a carve out based on pilot programming a naics limited trial for this "contractor statement direct to file". Because I see a legal slap down (Evidence 101) otherwise. Use of the supervisor as Mr. Polesky outlined seems very much aligned with regulatory methods recognized by courts (and the APA, and here and abroad). But a pilot program can demonstrate limits and prove usefulness. Simply present the options up front - if contractor agrees up front then the direct-to-file methods will be used. If the contractor wants to reserve more review, current system described by Mr. Polesky is used. If they need more than that I guess its the BCA. Dr. Kelman's commentary is always challenging and aware. I think it is realistic to see a pilot program targeting naics or some other categorization. legal question: does the direct-to-file or supervisor reviewed eval rank equivalent weight in a selection? That will have to get answered

Tue, Mar 25, 2014 Gary Poleskey United States

Dr. Kelman, I fully agree with your points criticizing Senator McCaskill’s stance. Clearly the past performance system is most effective and indeed was designed to “shine a light” on and contemporaneously record both positive and negative performance information. Good Program Managers use the system that way, but others do not. The reason the Contractor Performance Assessment Report (CPAR) included a review and signature one level above the Program Manager was to protect both the Program Manager and contractor. The capturing of comments and a signature from both the contractor and the PM’s boss was designed to ensure the facts and scoring captured in the CPAR matched other contract performance information presented in other program status reports to higher management. This check and balance should incentivize the Program Manager to be consistent and accurate in documenting the contractor’s performance record. It is incumbent on higher level managers to hold line Program Managers accountable for portraying an accurate record of contract performance – whether that record includes positive elements, negative elements, or a mix of both. A negative or positive bias of convenience must not be tolerated by senior management.

Mon, Mar 24, 2014 Al

It may also ratchet down the tension on this issue if all past performance info (positive and negative) were to self-destruct after five years.

Wed, Mar 19, 2014 Al

Regarding the comment below, the Government isn't seeking damages with a negative past performance review, so why the hesitance to input that information? The Contractor gets to respond, and that's his remedy, right? I know they can sue to get the information removed, but is that common? I prefer that *all* past performance informaiton be expunged from PPIRS after five years anyway, since we are supposed to consider the currncy of the information. Would that mitigate these lawsuits if they are indeeed common?

Mon, Mar 17, 2014

What is missing from this discussion is the notion that what is returned in a Google search may not be Gospel truth. I can do a Google search that returns Ph.D's swearing that the earth is flat. What is the standard for determining truth before using a Google search result as input to a Government award decision? If Google says my company was responsible for WWII, shouldn't the government have to independently verify that? And, what (non-partisan, apolitical, purely objective) source will be used for this verification? This is a ridiculous can of worms.

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