No insight but my mind went to why the HCA or higher, why not the CO?   Did a little research and found this.   https://www.asbca.mil/Decisions/2021/62586 Skyquest Aviation, LLC 1.7.21 Decision.pdf

So try and see if the CO would consider a change, if not then maybe file a claim under the Disputes Act.

C Culham said:

No insight but my mind went to why the HCA or higher, why not the CO?   Did a little research and found this.   https://www.asbca.mil/Decisions/2021/62586 Skyquest Aviation, LLC 1.7.21 Decision.pdf

So try and see if the CO would consider a change, if not then maybe file a claim under the Disputes Act.

I do not think they have grounds for a dispute since they failed to act before the CPAR was final, but they think they may be able to appeal to Ombudsman or HCA but I am not clear on whether the agency can retract a CPAR once it has been finalized.

"Even though the contracting officer may have been the assessing official, filing a "claim" and requesting a "final decision" is separate from the contractor comments process, and required under the CDA."

"Neither a Board nor the Court will rewrite a CPARS report, but they can issue declaratory relief if a CPARS report was unfair, inaccurate, arbitrary, or capricious. The Armed Services Board of Contracts Appeals, moreover, has stated it will send a CPARS report back to the contracting officer with a requirement to follow applicable regulations and provide a fair and accurate performance evaluation. But to succeed you should not rely on only procedural errors. You should further show prejudice, i.e., that the ratings and evaluations would have been different but for the demonstrated errors in the CPARS report."

Challenging Unfair CPARS Evaluations (americanbar.org)

Although not sure, this language indicates the dispute process is different from the CPARS comments process, so it may be irrelevant that you did not make any comments on the CPARS.  I do not see why the report could not be changed.

Also,

How to Contest a CPARS Evaluation | Government Contract Attorneys, SDVOSB Law (manfredonialaw.com)

That indicates a court or board will not entertain the question unless the contractor has asked for a final decision from the CO.

Tzarina of Compliance said:

I do not think they have grounds for a dispute since they failed to act before the CPAR was final, but they think they may be able to appeal to Ombudsman or HCA but I am not clear on whether the agency can retract a CPAR once it has been finalized.

( This response was done when bosgood replied.  I elected to not change my post, just send it.  Of sorts it follows the thinking of bosgood.)

You will do what you think best but I wonder.   

Where in the contract does it require the contractor to reply within 14 days and as such failure to do so cancels the rights of a contractor to dispute a final CPARS evaluation?   My read of CDA supports that the statute of limitations is generally 6 years.   It would seem that unless there was a contract clause where the contractors rights to file a claim under CDA for a final CPARS evaluation is some how released that there would be grounds.   I say this noting that if the evaluation is wrong in the eyes of the contractor and there is adequate evidence to support that it is wrong it would seem there are grounds for a following the dispute process.  

Another element that I will throw in is the reminder that the government can reject a contractors opinion expressed within the 14 days and do the CPARS as they wish.  A contractors comments will be include but the government has the final say on the rating.   Case law supports that in such situations CDA is an avenue the contractor can pursue to change the rating.

It just seems to me that either way, inclusion of comments or actual change of the rating is a matter that could be pursued via CDA regardless of the fact that the contractor did not reply with in the allotted 14 days.

In response to the original question:  It would seem apparent to me that, if a court or board could direct a revision to an incorrect contractor rating, the KO could -on their own- revise the rating.

Why put everyone, including the parties and board or court,  through the time and expense of a dispute, if the KO agrees that the rating was unfair or incorrect**.

The HQ US Army Corps of Engineers Office of Counsel has long advocated mutually resolving issues at the lowest level, avoiding formal claims/disputes. Unnecessary legal proceedings are wasteful of time, resources and money for all sides

**”Contractor totally at fault [for not commenting within 14 days? For not providing updated official company contact information?], but the CPAR was in bad faith and the rating was inconsistent with all the other action by the Government, including paying full fee (CPFF Completion) for "satisfactory" performance.”

EDIT: my first thought was that, if this was the contractors first government contract plus “the notifications were sent to a person who was no longer with the company”, were the procedures too informal, considering that the CPARS rating was negative with probable impacts to the Company? Was that person the only official contact address for formal, important contract communications? 

Edit: See FAR 42.1503 Procedures.

“…(f) The Government shall update CPARS with any contractor comments provided after 14 days, as well as any subsequent agency review of comments received.”

Tzarina of Compliance said:

Question:  is there a way under any circumstances where the agency is able (i.e. is such an action even allowed) to withdraw a finalized CPAR from the system to revise?  Would this be only a Procurement Executive level decision?

According to the CPARS User Manual, pp. 37-38, it appears that an "assessing official" can "modify" a rating even after it has been "validated and closed." I presume the policy and procedure for doing that varies from one agency to another.

I started to post something similar to what Joel Hoffman just said.  Why don’t you just meet with the contracting officer and perhaps their management and explain everything?

Also, to be blunt, this seems to indicate your company isn’t starting out doing business with the government on a good note.  Regardless of the reasons for the CPARS rating, the rating shows performance problems from at least the CPARS evaluators.  Your company fell short in their eyes.  Really CPARS results shouldn’t come as a surprise if the contractor is closely interfacing and communicating with the government.  This allows the contractor to fix performance issues timely and responsively.  The manner in which the CPARS process was handled by your company is indicative that things went wrong.

If I were you, I would meet with the government as soon as possible.  Forget about disputes and courts.  Use this as a learning experience.  Seek government feedback on what your company needs to do better.  Hopefully the government will revise the CPARS.  But if not, at least you gained knowledge on what you need to do better.

C Culham said:

It just seems to me that either way, inclusion of comments or actual change of the rating is a matter that could be pursued via CDA regardless of the fact that the contractor did not reply with in the allotted 14 days.

I'm not sure what that means, but under the CDA neither a board of contract appeals nor the Court of Federal Claims can grant a specific performance remedy. They could not order an agency to include comments or change a rating.

Tzarina of Compliance said:

New contractor. First direct contract with USG.

formerfed said:

Also, to be blunt, this seems to indicate your company isn’t starting out doing business with the government on a good note.

Unless her status has changed recently, the Tzarina does not work for the contractor in question. I think she posted on someone's behalf.

Furthermore, it's easy to criticize new contractors for being clueless about government contracting, but the truth is that government contracting is a nightmare of voluminous complexity. And, let's be honest, at least half the "government contracting professionals" are almost as clueless as new contractors.

Vern Edwards said:

And, let's be honest, at least half the "government contracting professionals" are almost as clueless as new contractors.

So true Vern.  Being honest, I was also a little clueless at times during my first few years as a new contractor.  This was after 30 years as an 1102.

Vern Edwards said:

I'm not sure what that means, but under the CDA neither a board of contract appeals nor the Court of Federal Claims can grant a specific performance remedy. They could not order an agency to include comments or change a rating.

Okay maybe not a ruling  to change the rating but they could "remand to require the contracting officer to follow applicable regulations and provide appellant a fair and accurate performance evaluation."  Reference PROTEC GmbH, ASBCA No. 61161.

@joel hoffman @formerfed  Just to be clear  I think you have taken my insights out of context.   In my first post I stated "So try and see if the CO would consider a change, if not then maybe file a claim under the Disputes Act.".   So like you I advocate for a discussion with the CO first and then as stated in my second post " I say this noting that if the evaluation is wrong in the eyes of the contractor and there is adequate evidence to support that it is wrong it would seem there are grounds for a following the dispute process."   Maybe I should have said "file a claim" or better yet I should have just quoted FAR 33.204 and left it at that.   So in context filing a claim and an appeal would be the last order of business if the contractor disagreed and wanted to exercise their ability for a remedy to a CPARS report that they fell is inaccurate.

formerfed said:

Also, to be blunt, this seems to indicate your company isn’t starting out doing business with the government on a good note.

Vern Edwards said:

And, let's be honest, at least half the "government contracting professionals" are almost as clueless as new contractors.

Interesting exchange.   So at first the blunt view is the government is right and the newbie contractor should just capitulate it as a lesson learned yet maybe the CO of record is in the half clueless category?   Either way it seems that the true guiding principle is the fairness standards of FAR part 1.   Even in the course of some mistakes a contractor should be treated fairly and it seems with the limited information provided that it would be fair for the government to give a second look at the evaluation.   It would also be fair that if the contractor still did not feel the review was done in accord with the CPARS rating matrix of FAR subpart 42.15, and CPARS guidance found elsewhere, the contractor has the fair right to file a claim and appeal any decision that is a result.    

As I indicated in one of my posts show me where a specific FAR clause says the contractor must follow the CPARS guidance, especially the 14 days?  Is not the guidance for the government?

C Culham said:

Reference PROTEC GmbH, ASBCA No. 61161.

There are three decisions with that number. Which one did you reference?

C Culham said:

As I indicated in one of my posts show me where a specific FAR clause says the contractor must follow the CPARS guidance, especially the 14 days?  Is not the guidance for the government?

There is no FAR clause that implements CPARS. To the best of my knowledge a government contract does not mention CPARS unless an agency puts something in its contract. CPARS is a government data system. The contractor is not obligated to do anything. However...

According to the CPARS User Manual, page 41 - 42, a contractor "is allotted" 60 days to comment on the government's evaluation, and then:

Quote

Action Required: “Input Comments”, the Contractor Representative is allotted a 60-day review/comment period starting from the date and time the Assessing Official forwarded the evaluation. If the Contractor Representative does not provide comments within the 60-day period, the evaluation is then returned to the Assessing Official and the Contractor Representative no longer has access to enter comments. The Government will have to complete the evaluation without the Contractor Representative comments.

So, no, a contractor need not follow what you call "the CPARS guidance," i.e., the CPARS User Manual. But if it doesn't follow the Manual it ends up where Tzarina's client has ended up. And while the ASBCA says it has authority to remand a claim to the CO to follow the rules, it has acknowledged that it cannot order the CO to change the government's CPARS rating.

Filing a claim will cost money. A better course of action might be to file a complaint with a senator, House representative, or both and ask for intervention. Some agencies react sharply to a congressional inquiry, especially DOD.

Super interesting.  @Vern Edwards (hi, Vern!) is correct, I do not work for the contractor, simply posting about a situation I am being asked to help with.   I know the agency in question has a CPARs guidance to its COs that says on page 1 - Discuss the CPARs system with the contractor during kick-off.....   🙂 This was never done for this very small business, which was the first time contractor, which actually applied under a BAA and was told by the agency that a CPFF term contract would be most appropriate for their concept - this was done as part of a so-called "co-creation" with the agency, in an effort to attract non-traditional contractors.  

So if I understand correctly - there is no FAR clause that implements CPARS (FAR 14.1503 just sets out procedures for the agency), how is a new contractor supposed to know that they will be reviewed and what the timelines are?  In this case they had no clue and they never once commented to any of the 4 CPARs received during contract performnace and the agency never asked "why" - do you think this would be a good argument to ask an Ombudsman or HCA to revert?  Thank you again!

I’ve met and worked with lots of HCAs and think most would be glad to meet and hear these issues.  But before doing that, gathering some basic intelligence about the agency and the key people is a good idea.  Get to know “the lay of the land” so to speak.  The contractor might start with the agency small business office.

Tzarina of Compliance said:

how is a new contractor supposed to know that they will be reviewed and what the timelines are?

As you note typically through a pre-work ("kick-off") meeting. 

Tzarina of Compliance said:

In this case they had no clue and they never once commented to any of the 4 CPARs received during contract performnace and the agency never asked "why"

In my view, this additional information and the above noted lack of discussion with the contractor regarding CPARS suggests what was implied in a previous post, clueless agency.  By experience an entity that failed to respond was not just a matter of "Oh Well" there was communication with an entity as to why.

Tzarina of Compliance said:

do you think this would be a good argument to ask an Ombudsman or HCA to revert?

I offered a response to this before so let me try a different thought process that leads to the same - Why not the  CO first?   Was there just a CO or was there a COR as well?  If a COR has the matter been raised to the CO as in most cases CO's put the effort on the COR and then the CO simply pushes the button.   If solely a CO have you brought the matter to CO's attention, in writing?   If just a CO do you think that the agency leadership puts much credit in CPARS anyways, or do they think it is just a step they go through to satisfy the requirement that a CPARS is to be done.   In other words gives value to CPARS as system that is to be used for gather  performance information to be used in future procurements?  By experience some agencies do use it for past performance information and others could care less about CPARS.

I completely understand you want to take the route that is considered to be less confrontational but I wonder.   How would a CO react to someone going to the HCA rather than addressing the matter direct to the CO?  Is not either route confrontational?   Remembering that the agency does not have to do anything to CPARS if they do not want to it would seem using a process, or suggesting that the process will be used, if the CO fails to correct, redo, whatever (and it really sounds like you want them to) that is described in FAR 33.204 would be better at getting the attention of the one that is charged with addressing the matter, the CO.

So maybe a letter to the CO (not yet a claim but suggests that it could come to that) that is copied to the HCA, the Ombudsman, the Small Business Rep, the SBA and the contractors congressional rep might be the route.

On 3/13/2023 at 3:09 PM, Tzarina of Compliance said:

Question:  is there a way under any circumstances where the agency is able (i.e. is such an action even allowed) to withdraw a finalized CPAR from the system to revise?  Would this be only a Procurement Executive level decision?

An answer to the original question:

joel hoffman said:

See FAR 42.1503 Procedures.

“…(f) The Government shall update CPARS with any contractor comments provided after 14 days, as well as any subsequent agency review of comments received.”

Others have also responded with additional references to similar CPARS implantation policy.   

Tzarina has now added further information to indicate that there appears to be little or no government communication to the contractor about the CPARS process or it’s right to respond to such ratings.

We don’t know what, if any communications from the government occurred or whether the contractor did or didn’t have knowledge  of the interim or final ratings.

On 3/13/2023 at 3:09 PM, Tzarina of Compliance said:

The notifications went to an employee who was no longer with the company.

Note the plural “notifications”.

There seems to be much more to the story that hasn’t been revealed. We are getting snippets here. 

Tzarina of Compliance said:

how is a new contractor supposed to know that they will be reviewed and what the timelines are?  In this case they had no clue and they never once commented to any of the 4 CPARs received during contract performnace and the agency never asked "why" - do you think this would be a good argument to ask an Ombudsman or HCA to revert?

What does “they had no clue” mean? They had no clue about what? Their performance? The government’s position concerning their performance? Knowledge of the ratings? That the communications were sent to a former employee not to the contractor?

What was the “Contractor totally at fault” for?

Tzarina of Compliance said:

this very small business, which was the first time contractor, which actually applied under a BAA and was told by the agency that a CPFF term contract would be most appropriate for their concept - this was done as part of a so-called "co-creation" with the agency, in an effort to attract non-traditional contractors.

Is “BAA” a “Business Associate Agreement”? 

So this “very small business”, “first time contractor” was issued a cost plus fixed fee contract?????

On 3/13/2023 at 3:09 PM, Tzarina of Compliance said:

the rating was inconsistent with all the other action by the Government, including paying full fee (CPFF Completion) for "satisfactory" performance.

- with an agency with no apparent clue how or who to communicate with????

Did either party know how to manage and execute a CPFF contract? 

Based upon the sparse information provided, yes the government can revise the final CPARS rating. We don’t know much more than that.

We don’t know if the contractor has asked anyone or if they have asked the Contracting Officer to discus this. If they have discussed this, what did the person or the KO say? 

Tzarina of Compliance said:

do you think this would be a good argument to ask an Ombudsman or HCA to revert?  Thank you again!

I agree with the other respondents.

Just now, joel hoffman said:

Is “BAA” a “Business Associate Agreement”?

35.016 Broad agency announcement

Thanks, Carl

That helps explains the CPFF contract approach.

joel hoffman said:

Thanks, Carl

You bet Joel.   So "Kick Off Meeting".   Hmmm Maybe yes and maybe no - https://www.nrc.gov/docs/ML1323/ML13235A156.pdf

So maybe the first letter that informs the CO of the issues might also request the "Kick-Off Meeting" minutes.  Afterall if there was one you would think it would help highlight the non-discussion of performance valuation.

It would seem an argument for the future would be that the contractor was not afforded the opportunity to address adverse performance information and as such any reference to the instant contract regarding performance would in effect be off limits unless addressed in exchanges with the contractor for the future procurement - FAR 15.306.

@Tzarina of ComplianceI presume that what the contractor wants is (1) to submit comments on the CPARS rating, (2) to have the agency consider them, and (3) to persuade the agency to favorably revise the CPARS rating. I presume that the contractor considers the CPARS rating to be a serious problem.

In light of the fact that the contractor missed the deadline for submitting comments, I doubt that the bureaucracy will be moved by a mere request submitted to the contracting officer, although anything is possible. Thus, I recommend a full-court press.

The contractor should write to the CO, certified mail, return receipt requested, and (1) explain the situation, (2) explain the failure to comment within the time allotted, (3) make the comments on the rating, (4) explain the actual or prospective effect of the rating on the contractor's business prospects and on its employees, and (5) request that the CO favorably revise the rating. (The contractor may want to ask for help in writing a good letter. It should reflect well on the contractor's intelligence.)

The letter should not be accusatory or say anything about "bad faith" on the part of the agency. It should not blame anyone for anything. Treat the problem as a misunderstanding. Don't make threats. Don't give anyone any reason to be defensive. Politely ask for a response within 30 days. Thank the CO in advance for considering your request.

The letter to the CO should show that copies have been sent, USPS certified mail, return receipt requested, to:

• the agency small business specialist,
• the agency SBA procurement center representative,
• the chief of the agency contracting office,
• the head of the agency contracting activity,
• the agency head,
• the contractor's senators,
• the contractor's House representative,
• the contractor's attorney, and
• any industry association to which the contractor belongs.

When sending copies of the letter to the senators and House representative, do so under a cover letter asking for their assistance in persuading the agency to consider its comments on the CPARS rating.

The idea should be to make the CO wonder if its worth the prospective trouble of refusing to revise the rating.

If what I have suggested doesn't work, then the contractor can try submitting a claim. It will need a lawyer. But that probably won't work either.

Vern Edwards said:

@Tzarina of ComplianceI presume that what the contractor wants is (1) to submit comments on the CPARS rating, (2) to have the agency consider them, and (3) to persuade the agency to favorably revise the CPARS rating. I presume that the contractor considers the CPARS rating to be a serious problem.

In light of the fact that the contractor missed the deadline for submitting comments, I doubt that the bureaucracy will be moved by a mere request submitted to the contracting officer, although anything is possible. Thus, I recommend a full-court press.

The contractor should write to the CO, certified mail, return receipt requested, and (1) explain the situation, (2) explain the failure to comment within the time allotted, (3) make the comments on the rating, (4) explain the actual or prospective effect of the rating on the contractor's business prospects and on its employees, and (5) request that the CO favorably revise the rating. (The contractor may want to ask for help in writing a good letter. It should reflect well on the contractor's intelligence.)

The letter should not be accusatory or say anything about "bad faith" on the part of the agency. It should not blame anyone for anything. Treat the problem as a misunderstanding. Don't make threats. Don't give anyone any reason to be defensive. Politely ask for a response within 30 days. Thank the CO in advance for considering your request.

The letter to the CO should show that copies have been sent, USPS certified mail, return receipt requested, to:

• the agency small business specialist,
• the agency SBA procurement center representative,
• the chief of the agency contracting office,
• the head of the agency contracting activity,
• the agency head,
• the contractor's senators,
• the contractor's House representative,
• the contractor's attorney, and
• any industry association to which the contractor belongs.

When sending copies of the letter to the senators and House representative, do so under a cover letter asking for their assistance in persuading the agency to consider its comments on the CPARS rating.

The idea should be to make the CO wonder if its worth the prospective trouble of refusing to revise the rating.

If what I have suggested doesn't work, then the contractor can try submitting a claim. It will need a lawyer. But that probably won't work either.

Thank you, Sir.  Very good suggestions as always!  I feel good about this since this was partially my advice as well.  The contractor did get help and did write a nice letter to the CO explaining all the circumstances.  They did not copy the suggested others - which would have probably helped as you suggest, Vern.   The CO responded with one sentence saying "We have no control over the CPAR system once its finalized, so your request is denied. "  This is a typical response for this agency, which is basically a non-response.  This is why I was asking in the first place who we may think has the authority to pull the final CPAR if we escalate.

Before your very kind suggestion above, I was already thinking that SBA and agency SB advocate should be involved.  @joel hoffman's incredulity is justified.  Yes this was a Broad Agency Announcement, yes this is a first-time contractor and yes, the agency thought a complex CPFF would be the best idea for a contractor that has never done this type of contracting before.    The employee issue was that the employee was a Project Manager and received 2 notifications that the last CPAR was ready.  The Project Manager had no idea what CPAR was or why he was being told they were ready for comment and then decided to delete all the emails before leaving the company.    The contractor recovered his deleted emails and found that the agency did in fact provide a notification to the Project Manager (who was never designated as the POC for CPARs).  

I think it is probably time to go "claim" and get full legal assault since the contractor is already losing work based on the Selecting officials looking at this rating.  Thank you all as always for a great discussion!

Tzarina, I ran into a similar situation a few years back.  In that situation, the contractor POC for CPARS left the contractor, and the contractor sent an e-mail to the CO informing her of this and requesting another individual be substituted as the new POC.  The CO never responded and sometime later sent the draft CPARS to the old employee's e-mail address resulting in the contractor never having a chance to comment on it.  The contrafctor later filed a claim on another matter regarding the same contract.  That claim went to mediation before an appeals board where it was settled.  Although the CPARS issue was not part of the claim, it was part of the settlement and the government was able to let the contractor make comments on the CPARS.

Tzarina of Compliance said:

The CO responded with one sentence saying "We have no control over the CPAR system once its finalized, so your request is denied. "

No doubt system management and its bureaucracy has changed over the years but as one who was the branch chief at USACE of the Portland District for CPARS before it went government wide while the response may be typical I believe I can say it is not factually correct.

I hope you find a solution that is fair to the contractor.

Retreadfed said:

Tzarina, I ran into a similar situation a few years back.  In that situation, the contractor POC for CPARS left the contractor, and the contractor sent an e-mail to the CO informing her of this and requesting another individual be substituted as the new POC.  The CO never responded and sometime later sent the draft CPARS to the old employee's e-mail address resulting in the contractor never having a chance to comment on it.  The contrafctor later filed a claim on another matter regarding the same contract.  That claim went to mediation before an appeals board where it was settled.  Although the CPARS issue was not part of the claim, it was part of the settlement and the government was able to let the contractor make comments on the CPARS.

This is very good to know.  Thank you.

On 3/15/2023 at 8:48 AM, joel hoffman said:

So this “very small business”, “first time contractor” was issued a cost plus fixed fee contract?????

On 3/15/2023 at 8:48 AM, joel hoffman said:

with an agency with no apparent clue how or who to communicate with????

Tzarina of Compliance said:

@joel hoffman's incredulity is justified.

Should this type of contractor almost always be given a FFP LOE instead of a CPFF?  I’m worried about audits now.

CO here, though I may be more reasonable than who you are dealing with. A CPARS assessment can be "reopened" or an addendum added. The CO/agency cannot do it but they can request it from the CPARS help desk. The CO can modify the ratings as previously assigned or leave as-is and allow the contractor to take its 60 days to review and provide comment to go through the non-concur process. That said, knowing the company is trying to take issue with the assessment, there's not a lot of incentive for the govt to reopen it as then the agency would have to "deal" with the non-concurrence process whereas at current, it's a closed case. 

To be blunt, the "woe is me, we didn't know" angle can get tiring as well. I know dealing with govt acquisitions is complicated and govt POCs are not always/often helpful, but for me, I do expect some level of effort from the industry partner. You said the PM "was never designated as the POC" and I assume by that you mean your client hadn't specifically given that person's name. By virtue of the PM receiving notifications, it means he was put into the system as the Contractor Rep. He would have received an email at the time he was put into the system with information about the award, agency POCs, and how to register his account for access. (This should occur right around the time of award of the contract if the agency is registering timely.) He would have also received an email when it went to the Assessing Official and another when it was sent to the Contractor for review and comment. Reminders are also sent. Negligence on his part does not make it the Government's issue to deal with. The Assessing Official can also see a log of when users have looked at the record. If the PM happened to look at the record, that will not bode well for your client as well. Over the years I've been told "we didn't get notifications" or "it went to the wrong person" yet I could see when they logged in to review it. Whoops! (I do not know if this information can be seen from the Contractor Rep view.)

Now onto my more reasonable approach, if a small business reached out and expressed clearly the five things that Mr. Edwards indicated in his post above, I'd be more willing to at least discuss the issue before deciding on whether or not to reopen. Not only would this likely be easier than any other action the firm might choose to take (claims and the like) but would be an olive branch for a small business contractor that is new to the Federal space and could really use the more accurate assessment as it'll be the only one in the system. **Note that none of the above would excuse the govt for putting in patently false information in the assessment. It is not uncommon that whomever drafts the assessment doesn't fully understand the process. The Assessing Official may either a) not read what the Assessing Official Rep entered or b) not fully know the ins and outs of performance and therefore accepts what is written. Either of these scenarios can lead to assessments that do not jive with reality.

Just to follow-up and for your information, I found one of the notification emails in my inbox and wanted to send so you could see what the PM would have received (in case this wasn't one that was recovered). From my point of view, it's hard to swallow that the PM didn't know what it was or why he was receiving it. I do hope your client is able to work out an amenable solution and this is a great lesson learned - if a contract appears to be eligible for an assessment IAW FAR 42.15, they should be sure to ask about it and provide the correct POCs (and keep them updated if personnel change!!).

Quote

SUBJECT:  Final evaluation for Contract NUMBER

Dear CONTRACTOR REP:

Good performance by Federal contractors is essential. The Federal Acquisition Regulation requires all Federal agencies to collect past performance information on contracts. CPARS has been implemented to comply with this regulation and to ensure that source selection officials have a detailed evaluation of contractors' past performance. We have performed an evaluation of your company's work on contract NUMBER for the period MM/DD/YYYY through MM/DD/YYYY.

To access this evaluation:

* Go to https://www.cpars.gov

* Click on 'Log In' and log in. If you forgot your Password, use the 'Forgot/Reset Password' function. Contractor users are encouraged to obtain and use a PKI certificate.

* From the Home screen click on the 'To-Do List'

* Click on the Contract Number

* Review the evaluation, provide comments and indicate your concurrence/non-concurrence with the Government's review (see below for time constraints)

* Comments should focus on objective facts in the Government's narrative as well as providing your views on the causes and ramifications of the assessed performance

* Click the 'Validate and Send to the Assessing Official' button when finished

You have 14 calendar days following the Assessing Official signature date (MM/DD/YYYY) to submit comments before the evaluation is made available in the View Performance Records section of CPARS. You have a total of 60 calendar days (MM/DD/YYYY HH:MM) to submit comments. Any comments that you submit will be updated accordingly.

PLEASE NOTE:

If you do not sign and return the evaluation within 60 calendar days the evaluation will be returned to the Assessing Official, you will no longer be able to provide comments and the evaluation will be annotated as follows: 'The report was delivered/received by the contractor on MM/DD/YYYY. The contractor neither signed nor offered comment in response to this evaluation.' Partially completed comments that were not signed and returned to the Government within 60 calendar days will be removed from the evaluation.

The following guidelines apply concerning your use of CPARS:

a. If for some reason you are unable to view and/or submit the evaluation through the automated system, contact the Focal Point for instructions. The Focal Point for this contract is FOCAL POINT, who can be reached at XXX-XXX-XXXX.

b. If you have questions about the evaluation, FAR 42.15 includes a rebuttal process. If you desire a meeting to discuss the evaluation, a meeting may be requested, in writing, no later than seven days following your receipt of this notification. If deemed appropriate, a meeting (in-person or over the telephone) may be held during your 60-day review period.

c. Protect the evaluation as 'source selection information'. Strictly control access to the evaluation within your organization. Ensure it is never released to persons or entities outside of your control, this includes using the evaluation for advertising, promotional material, pre-award surveys, production readiness reviews, or other similar purposes.

d. A copy of this evaluation will be available through the automated system once it is completed by the Government. You will receive an automated email notification at the time of completion.

The CPARS process is designed to fairly evaluate your performance under this specific contract. The guidelines used to prepare this evaluation are available at the website provided above. If you have any questions, feel free to contact me at XXX-XXX-XXXX or EMAIL.

Sincerely,

ASSESSING OFFICIAL

@Contracting_in_Wonderland

⭐⭐⭐⭐⭐⭐⭐⭐⭐⭐

Wow!

Contracting_in_Wonderland said:

CO here, though I may be more reasonable than who you are dealing with. A CPARS assessment can be "reopened" or an addendum added. The CO/agency cannot do it but they can request it from the CPARS help desk. The CO can modify the ratings as previously assigned or leave as-is and allow the contractor to take its 60 days to review and provide comment to go through the non-concur process. That said, knowing the company is trying to take issue with the assessment, there's not a lot of incentive for the govt to reopen it as then the agency would have to "deal" with the non-concurrence process whereas at current, it's a closed case. 

To be blunt, the "woe is me, we didn't know" angle can get tiring as well. I know dealing with govt acquisitions is complicated and govt POCs are not always/often helpful, but for me, I do expect some level of effort from the industry partner. You said the PM "was never designated as the POC" and I assume by that you mean your client hadn't specifically given that person's name. By virtue of the PM receiving notifications, it means he was put into the system as the Contractor Rep. He would have received an email at the time he was put into the system with information about the award, agency POCs, and how to register his account for access. (This should occur right around the time of award of the contract if the agency is registering timely.) He would have also received an email when it went to the Assessing Official and another when it was sent to the Contractor for review and comment. Reminders are also sent. Negligence on his part does not make it the Government's issue to deal with. The Assessing Official can also see a log of when users have looked at the record. If the PM happened to look at the record, that will not bode well for your client as well. Over the years I've been told "we didn't get notifications" or "it went to the wrong person" yet I could see when they logged in to review it. Whoops! (I do not know if this information can be seen from the Contractor Rep view.)

Now onto my more reasonable approach, if a small business reached out and expressed clearly the five things that Mr. Edwards indicated in his post above, I'd be more willing to at least discuss the issue before deciding on whether or not to reopen. Not only would this likely be easier than any other action the firm might choose to take (claims and the like) but would be an olive branch for a small business contractor that is new to the Federal space and could really use the more accurate assessment as it'll be the only one in the system. **Note that none of the above would excuse the govt for putting in patently false information in the assessment. It is not uncommon that whomever drafts the assessment doesn't fully understand the process. The Assessing Official may either a) not read what the Assessing Official Rep entered or b) not fully know the ins and outs of performance and therefore accepts what is written. Either of these scenarios can lead to assessments that do not jive with reality.

Many many thanks!  All great points.  The Project Manager did not receive a notification from the system, it was an email from the COR to say that an assessment was prepared and would be available in the CPAR system, which the PM ignored.  It is unclear where the system notification went, the contractor could not find it and they looked through their CEO's emails as well as any SAM POCs.    I am totally on board with "ignorance of the law is not an excuse", but in this situation, the contarctor did try to explain the reasons to the CO and got nowhere, becuase CO does not think they can reopen it alone - which I think you confirm is true.    This is super helpful infor that a CO would have to go through the helpdesk, which is what I was trying to assertain.    Thank you very much.

Good luck, Tzarina!

@Tzarina of Compliance Definitely sounds like a series of unfortunate events and I wish your client the best. Other commenters have already suggested some other avenues if not making headway with the CO and the request to reopen via the help desk. And now I am so curious who was on the other end of the CPARS Contractor Rep emails. The plot thickens! Best of luck.

Contracting_in_Wonderland said:

Just to follow-up and for your information, I found one of the notification emails in my inbox and wanted to send so you could see what the PM would have received (in case this wasn't one that was recovered). From my point of view, it's hard to swallow that the PM didn't know what it was or why he was receiving it. I do hope your client is able to work out an amenable solution and this is a great lesson learned - if a contract appears to be eligible for an assessment IAW FAR 42.15, they should be sure to ask about it and provide the correct POCs (and keep them updated if personnel change!!).

Great posts - very informative and may be helpful to others in the future - well done!

On 3/14/2023 at 1:35 PM, Tzarina of Compliance said:

This was never done for this very small business, which was the first time contractor, which actually applied under a BAA and was told by the agency that a CPFF term contract would be most appropriate for their concept - this was done as part of a so-called "co-creation" with the agency, in an effort to attract non-traditional contractors.

From my perspective, this agency should have been more proactive with a new contractor but the actions of the PM are somewhat telling and intriguing. The PM may or may not have had experience with government contracts.

We also don’t know what the lines of communication were.

The statement that the PM was not the point of contact for CPARS is also interesting but no need to expand on that here.