The American Bar Association's Public Contract Law Section (Committee on Federal Claims and Judicial Remedies), which is composed of attorneys from both the Government and the private sector, is interested in your experience and opinions regarding the Government's current practice of past performance evaluation under the procedures in FAR Subpart 42.15 and the contractor's ability to challenge such evaluations. The focus of this survey is the past performance evaluation process during and after contract performance, rather than the use of past performance evaluations during the source selection process in FAR Subpart 15.

The Past Performance Subcommittee that is conducting the survey is made up of attorneys from both the private sector and Government agencies, including the Office of Federal Procurement Policy. The goal of the Subcommittee is to examine the current process for evaluating past performance and to recommend changes and improvements, if any, to the process. You do not have to be an attorney to complete the survey; in fact, the Subcommittee hopes to receive feedback from a broad cross-section of the federal procurement community.

Please complete the survey and forward your response by July 31, 1997 to Richard J. Vacura, Esq. by mail (Piper & Marbury, L.L.P., 1200 19th Street, N.W., Washington, D.C. 20036) or fax (202/223-2085) or e-mail (rvacura@pipermar.com). We welcome any additional comments or thoughts that are raised by any of the questions in the survey. We are particularly interested in your suggestions on improving the current past performance evaluation process.

Questions For All Respondents

1. Nature of your practice/business/occupation: ___

(a. Private law firm; b. Government attorney; c. Corporate attorney; d. Judicial; e. Corporate contracts/management; f. Government contracts/management); g. Other ____________________

2. Past performance ratings, under FAR Part 42, typically are (choose as many as are appropriate):

___generally inflated
___helpful in distinguishing contractors
___unhelpful in distinguishing contractors
___reflective of a bell curve
___generally accurate predictors of future performance
___primarily negative

3. The greatest hurdles to the government-wide implementation of the use of past performance are (choose as many as are appropriate):

___inconsistency in reports/grading
___inconsistency in applying data and/or using reports
___fundamentally a bad idea
___gives the Contracting Officer ("CO") too much discretion
___evaluator's fear of reprisal for negative reports
___inability to distinguish levels of performance
___inability to adequately comment or challenge

4. Contractors who disagree with a past performance report should be permitted to (choose as many as are appropriate):

___comment on the report
___seek review with the CO
___seek review at a level higher than the CO
___challenge the report under the "Disputes" clause of the contract
___challenge the report at the GAO
___seek review at an ombudsman/agency administrative hearing level
___seek review at a forum external to the agency only after exhausting remedies within the agency

5. Contractors who disagree with their final past performance report (after comment and review) should be permitted to challenge the report (choose as many as are appropriate):

___never
___within 30 days of receipt
___within three years (the period in which past performance information may be used)
___within 3 years of previously unavailable information becoming available
___any time the report becomes a factor in a source selection decision

6. If there is pending or current litigation (claim, dispute, BCA, COFC, etc.) involving a contract upon which a report is based, the impact on a subsequent source selection should be (choose as many as are appropriate):

___the report should not be considered at all
___the report should be considered at the CO's discretion
___the report should be considered only if the contractor is permitted to comment on the nature of the claim during the source selection process

7. The current three-year retention period for past performance information should be measured from the date (choose one):

___the report is signed
___of substantial completion or substantial performance of the contract
___of final payment
___other _____________________________________________________

8. Past performance reports should be (choose one):

___deemed proprietary and not disclosed (except to the evaluated contractor)
___disclosed only with contractor consent
___public records, disclosed under FOIA
___available on the Internet
___not disclosed after the comment period

9. In your opinion, the authors of, or contributors to, the past performance report should be (choose one):

___identified
___identified upon request
___anonymous

10. How satisfied are you with the evaluation process currently used? ______

(1 = very satisfied; 5 = very dissatisfied)

Recommendations:_______________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

Questions For Contractors/Private Bar

11. Has it been your experience that the Government imposed a deadline for contractor comments on a past performance report? ___ [Y/N]. If yes, no. of days? ___

12. Were your comments on a past performance report reviewed by (choose as many as are appropriate):

___Contracting Officer
___one level above the CO
___more than one level above the CO

13. How have your comments on a past performance report been communicated to the Government? (choose as many as are appropriate)

___written comments
___affidavits
___letters/materials from third parties
___oral presentations
___oral discussion/meetings
___other ______________________________________________________

13a. What happened when comments on a past performance report were submitted to the Government? (choose as many as are appropriate)

___nothing
___agency responded orally
___agency responded in writing
___revisions were made to original report
___contractor's comments were appended to original report
___don't know

14. Were you satisfied that your comments were fully considered? ___

(1 = very satisfied; 5 = very dissatisfied)

15. If you have challenged an individual report, indicate how many and where:

__________________________________________________

No. Forum Successful [Y/N]
___CO/agency ___
___GAO ___
___Court ___
___Administrative Board ___
___Other ____________________

Questions for Government Agencies/Government Bar

16. The use of Past Performance as a significant evaluation factor has (choose as many as are appropriate):

___increased my workload
___made source selection more burdensome
___failed to alter contractor performance
___enhanced my ability to select superior contractors
___helped to eliminate poor performing contractors
___produced improvements in contractor performance, attitude, etc.
___not been worth the effort, resources, etc.

17. In preparing past performance reports, meaningful input is typically received from (choose as many as are appropriate):

___technical representatives
___end users
___plant representatives
___auditors
___counsel
___Contracting Officers and Specialists
___non-government sources

18. Do you store past performance ratings/reports electronically? ___ [Y/N]

18a. Do you store contractor comments on ratings/reports electronically? ___ [Y/N]

19. If answer to 18 was yes, are ratings available for use by other agencies? ___ [Y/N]

20. Do contractors ALWAYS have an opportunity to comment upon their report? ___ [Y/N]

20a. If answer to 20 was no, do contractors ALWAYS have an opportunity to comment upon a negative report? ___ [Y/N]

20b. Do contractors ALWAYS have an opportunity to comment upon a report of less than outstanding or excellent? ___ [Y/N]

21. Do you believe that you (or your agency) have clear guidance regarding use of your rating system? ___[Y/N]