PURPOSE: To advise Agency procurement personnel of the memorandum issued by the Administrator of the Office of Federal Procurement Policy (OFPP) regarding the above.
BACKGROUND: The Administrator of OFPP issued a memorandum for Agency Senior Procurement Executives on April 2, 2002, regarding protests, claims, and alternative dispute resolution (ADR) as factors in past performance and source selection decisions. A copy of the memorandum is enclosed.
GUIDANCE: Contracting Officers and Source Selection Officials shall not:
Ř Downgrade past performance evaluations of contractors who exercised rights to file protests or claims or declined the use of ADR.
Ř Provide more positive past performance evaluations to contractors who refrain from exercising rights to file protests or claims or utilize ADR.
EFFECTIVE DATE: This PIC is effective as dated and shall remain in effect until canceled or superseded.
HEADQUARTERS CONTACT: Yolande Harden, Code HK, (202) 358-1279, firstname.lastname@example.org.
R. Scott Thompson,
Director, Contract Management Division
April 2, 2002
MEMORANDUM FOR AGENCY SENIOR PROCUREMENT EXECUTIVES
FROM: Angela B. Styles (signed)
SUBJECT: Protests, Claims, and Alternative Dispute Resolution (ADR)
as Factors in Past Performance and Source Selection Decisions
While many agencies and contractors have successfully resolved contentious contract issues by effectively using a wide range of dispute resolution techniques, concerns have arisen regarding the consideration federal agencies give contractor protests, claims, and ADR practices in past performance evaluations and source selection decisions. For the reasons stated below, the filing of protests, the filing of claims, or the use of ADR, must not be considered by an agency in either past performance evaluations or source selection decisions.
Federal agencies should continue to work with contractors to avoid or minimize unnecessary protests and claims, and encourage the use of ADR, where appropriate. At the same time, contractors should feel free to avail themselves of the rights provided to them by law. Accordingly, please emphasize to your agency’s acquisition personnel, especially source selection officials, that:
1. Contractors may not be given “downgraded” past performance evaluations for availing themselves of their rights by filing protests and claims or for deciding not to use ADR; and
2. Contractors may not be given more “positive” past performance evaluations for refraining from filing protests and claims or for agreeing to use ADR.
I appreciate your assistance in ensuring that this memorandum is distributed to the appropriate personnel in your agency.
cc: Agency General Counsels