5.4  Disclosing Past Performance Information to Offerors

The contracting officer must provide offerors (via clarifications, communications or discussions as described in paragraph 6.0 below) with the opportunity to comment on negative past performance information on which they have not had a previous opportunity to comment either through the Contractor Performance Assessment Reporting System (CPARS), or other formal processes that allow for contractor comment as part of the assessment process.  The validation process is particularly important when the negative information is provided by only one reference, or when there is any doubt concerning the accuracy of the information.  Usually, negative information reflects performance that was less than satisfactory although this is a judgment call that will depend upon the circumstance of the acquisition.  Note that while the government must disclose past performance problems to offerors it shall not disclose the names of the individuals who provided information about an offeror's past performance.  A special problem arises with respect to subcontractors.  Past performance information pertaining to a subcontractor cannot be disclosed to a private party without the subcontractor's consent.  Because a prime contractor is a private party, the government needs to receive the subcontractor's consent before disclosing its past performance information to the prime during negotiations (discussions).  The language in Attachments 1-3 requires the prime contractor to submit its subcontractor's consent along with the prime's proposal to the government.