Information on contractors’ past performance remains spotty

Federal agencies are inconsistently entering mandatory reports on contractors' past performance in a governmentwide database, limiting the information available to procurement officials issuing multimillion-dollar wartime awards, witnesses told a panel on Monday.

According to testimony before the congressionally chartered Commission on Wartime Contracting, agencies are recording data in the Contractor Performance Assessment Reporting System and Past Performance Information Retrieval System infrequently and in an ad hoc manner. The panel also heard complaints that agencies have not devoted enough resources and attention to their offices for suspending and debarring problem contractors from future work.

"If past-performance information isn't recorded in the federal database, then there's no shared, official record to consider in awarding new contracts," said Christopher Shays, commission co-chairman and a former Connecticut Republican representative. "And if suspensions and debarments are impeded by bureaucratic decisions or inertia, then companies that have committed fraud may continue receiving taxpayer funds. In either case, untrustworthy contractors can continue profiting from government work, responsible businesses may be denied opportunities, and costs to taxpayers can climb."

According to data the commission collected, the Defense and State departments and the U.S. Agency for International Development failed to enter required past performance information for more than 90 percent of contingency contracts issued. Officials from those agencies agreed recording past performance data must be a higher priority.

"It is clear that we must improve our documentation so that past performance information is more useful for all government contracting officers," said Corey Rindner, State's senior procurement executive.

"Departmentwide, compliance with reporting requirements for past performance information is not what it should be," conceded Richard Ginman, deputy director of contingency contracting and acquisition policy at Defense.

USAID, which has experienced difficulty documenting the performance of its contractors, attributed the gaps to lack of staff and competing mission requirements.

"The time constraints and workload conflicts [contracting officers] face between making new awards and ongoing administration plays itself out most fully in the past performance arena," said Maureen Shauket, USAID's chief acquisition officer. "USAID, like many of our interagency colleagues who work in Afghanistan and Iraq, faces numerous challenges in implementing new systems or fulfilling reporting requirements given challenges with staffing shortages, staff turnover, competing urgent demands and changing requirements."

She said she expects the percentage of past performance reports USAID completes to rise significantly as the agency stands up its new compliance and oversight of partner performance division, which will take over the management and oversight of reporting.

Scott Amey, general counsel for the Project on Government Oversight, a federal watchdog group, said agencies are shirking their responsibilities by not properly vetting contractors.

"The government's inability to hold all contractors accountable begs the question: 'Is the government so reliant on large contractors that bad actors are required to preserve legitimate competition and mission accomplishment?' " Amey said. "This might be the contracting version of 'too big to fail.' "

But, the absence of a report in a government database does not mean contracting officers are failing to consider past performance when making contract award decisions, according to the Obama administration's top procurement official.

Dan Gordon, director of the Office of Federal Procurement Policy, testified that well before the databases were created, contracting officers were required to conduct past performance evaluations, often by checking with agencies and program offices that had worked with the company in the past.

"If contracting officers were not including past performance as a criteria in issuing awards, I would be very surprised," Gordon said. Several commissioners disagreed, noting that in Iraq and Afghanistan, where contracts must be awarded rapidly, past performance has been frequently ignored.

Even when past performance has been documented, the results have been spotty at best. OFPP recently surveyed the top 10 largest procuring agencies and found that 75 percent of all past performance reports had too little information on the company's cost-control efforts to be useful for contracting officers making an award decision.

"Some of the deficiencies that we identified are probably due to lack of training on the new requirements, while others may be attributable to the need to acclimate to a central system, evolving requirements, and staff shortages," Gordon said.

To mitigate the problems, OFPP plans to issue a proposed rule in the Federal Acquisition Regulation soon that standardizes evaluation factors and performance ratings. The Federal Acquisition Institute also plans to establish governmentwide training on how best to report on contractors' past performance.

The commission last week issued a report detailing several suggestions for reducing waste, fraud and abuse in overseas contracting. Among the recommendations was aligning past performance assessments with contractor proposals and requiring agencies to certify use of the past performance database.