Improving agency assessments of contractor past performance has been a priority since the Government Accountability Office published its 2009 report criticizing the system. A number of new FAR rules can be linked to GAO’s recommendations. For example, GAO pointed to the lack of reporting on default terminations and defective pricing. The FAR has now been amended to require default terminations and defective pricing be reported as part of a contractor’s past performance. See 75 Fed. Reg. 60258 (Sept. 29, 2010) [pdf]. The latest proposed revision to the FAR responds to GAO’s recommendation that there be greater uniformity in past performance reporting. See 76 Fed. Reg. 37704 (June 28, 2011). The proposed rule would revise FAR 42.1503 to include five minimum evaluation factors for which contractors are to be evaluated: (i) Technical or Quality; (ii) Cost Control (as applicable); (iii) Schedule/Timeliness; (iv) Management or Business Relations; and (v) Small Business Subcontracting (as applicable). The proposed rule would also impose a uniform ratings scale for use by past performance evaluators. As defined in the CPARS Policy Guide, past performance would have to be described as exceptional, very good, satisfactory, marginal, or unsatisfactory.
Executive compensation FAQ
Contractors seeking to comply with the new requirement to report the compensation of their five highest paid executives under FAR 52.204-10 (July 2010) still have a lot of unresolved questions. We heard some of the questions during our June 8, 2011 webinar on the topic, which was sponsored by L2 Federal Resources, LLC, publisher of The Contracting Post. Thanks for hosting!
Here are some of the questions posed, along with our answers.
Drawing the line on FAPIIS
Efforts to increase transparency in federal contracting are well underway. But it’s still not clear exactly how much contractor information will be made public under the new rules, or how they will be interpreted in light of existing laws. We know that FAPIIS is now online and accessible to the public, for example, but that
An empirical look at DOD contract spending
From 30,000 feet, we all know about the dramatic increase in federal contract expenditures over the last 10 years. An interesting report [pdf] published by the Center for Strategic and International Studies takes a much closer look at DOD contract spending since 1990. It does a good job of quantifying the increase in service contracts
Corporations can’t cite “personal privacy” to avoid public disclosure under FOIA
The Supreme Court’s 8-0 decision in Federal Communications Commission v. AT&T, Inc., No. 09-1279 (Mar. 1, 2011) [pdf], closes the door on corporate use of the personal privacy provision in FOIA Exemption 7(C).
Measuring damages for government theft of contractor trade secrets
It’s a worst-case scenario for many government contractors. Despite using strict confidentiality agreements and bold restrictive legends, the government releases a valuable trade secret to the public. The Trade Secrets Act may result in criminal consequences for the offending individuals, but the more pressing question for the contractor is how to recoup the loss of a valuable asset. The recent decision in Spectrum Sciences and Software, Inc. v. United States, No. 04-1366C (Fed. Cl. Feb. 14, 2011) [pdf], offers some guidance.
Contract Documents Won’t Be Posted on the Internet . . . Yet
The ongoing federal contracting transparency initiatives will not yet include the publication of actual contract documents on the internet. According to a Federal Register notice published on February 10, 2011 [pdf], that proposal has been withdrawn, at least for now.
FOIA trade secrets exemption unavailable for 75-year-old aircraft design
It’s a common assumption in litigation under the Freedom of Information Act that trade secrets lose value with the passage of time. The January 19, 2011 decision in Taylor v. Babbitt, No 03-0173-RMU (D.D.C. Jan. 19, 2011), shows there’s much more to the story. The case involved a 2002 FOIA request seeking “plans, blueprints, specifications, engineering drawings and data” submitted to the government in 1935 in support of a type certificate application for the Fairchild F-45. After a harrowing ride through the court system, including a trip to the Supreme Court, United States District Judge Ricardo M. Urbina ordered the government to produce the 75-year-old documents.
Emails can create a binding government contract
In Mabus v. General Dynamics C4 Systems, Inc., (Fed. Cir. Feb. 4, 2011), the Federal Circuit affirmed the government’s use of email to issue delivery orders even when it was prohibited by the contract.
Will public availability of FAPIIS mean 300 million inspectors general?
One response to the shortage of experienced federal contracting personnel and qualified DCAA auditors is to turn the job over to the public at large. That seems to be the plan when it comes to the new federal contractor transparency initiatives, the most recent of which is the rule that will make the Federal Awardee Performance and Integrity Information System (FAPIIS) available to the public after April 15, 2011. Like the business model adopted by Wikileaks, the concept appears be that posting selected contractor performance data on the internet will be like hiring 300 million inspectors general. As with many government initiatives, the results are likely to cost more and achieve less than anticipated.