Bill would stifle contractors' responses to past-performance reviews
Proposed legislation would forbid companies from challenging assessments or even correcting errors, critics say.
Under a new contracting bill, companies would lose their opportunity to respond to government officials’ past-performance reviews, which play a major factor 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 grants companies 30 days to comment, provide additional information, or rebut a contracting official’s assessment of their work. The same FAR provision that the bill would cut requires agencies to provide companies with a copy of the 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 the agency officials view it different way.
“This provision may lead to a bad situation or bad feelings, at least,” Hodgkins said.
For example, he said, agencies are sometimes unhappy with the outcome of a contract, but the contractor may have been hamstrung by a firm-fixed price contract that didn't alllow flexibility. The result might be a lackluster performance review which, under the new bill, the company would be unable to rebut.
“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.
Their 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 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 Homeland Security and Governmental Affairs Committee’s Contracting Oversight Subcommittee and also chairwoman of the 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.”