Firm awaits decision on whether Defense will disclose contractor ratings

The Obama administration, committed to becoming the most transparent in history, upheld a Bush-era practice of denying taxpayers access to a Defense Department database that tracks contractor performance. An appeal to a recent Freedom of Information Act request is pending, but industry groups say they are confident Defense will respect their position to continue to bar public access to the ratings.

Since 2007, the FOIA Group Inc., which consults with major companies, law firms and nonprofits, has unsuccessfully challenged Defense to disclose the aggregate scores each contractor receives from federal agency from program managers, contracting officer's representatives, engineers and other agency officials who work with the companies. The ratings are based on, among other things, the quality of the product or service, timeliness, cost control and business relations. The ratings are stored in a database called the Contractor Performance Assessment Reporting System.

The database serves as a kind of Consumer Reports for agency contracting officials who are evaluating competitive bids for government work. Contracting officers and other federal managers use the system to help make contract award decisions, and to improve government-contractor relations. Only federal officials can enter the password-protected database. Contractors are able to see their data to ensure accuracy and provide feedback to the government.

"Just like a report card for your kid in school, as a taxpayer, you should be able to know how poorly or how well these contractors," which often receive contract awards that exceed several hundred million dollars, are working, said Jeff Stachewicz, founder of FOIA Group and a former staffer for the Army Command Counsel who served on Defense's FOIA task force. "If a contractor is doing poorly the public has a right to know, the contracting community has the right to know."

The FOIA Group is not asking the administration to disclose cost performance reports, financial solvency assessments, comments or other proprietary information that is in the database.

The group filed three FOIA requests for the ratings during the Bush administration, and all were denied. In April, Defense denied a request that the FOIA Group filed in December 2008, and the group immediately appealed. The appeal reached the department's Office of the Undersecretary this summer for final review, and a decision is expected within 30 days, Stachewicz said.

"With the new breadth of openness from the Obama doctrine, these scores are under serious consideration for release," he said.

In a statement responding to a request for comment from Nextgov, Pentagon officials said, "The Department of Defense attempts to be as transparent as possible. But while FOIA is a disclosure statute, it does allow for the withholding of certain types of information contained in agency records. FOIA requests for CPARS have been consistently denied in the past, but FOIA gives requesters specific legal rights and provides administrative and judicial remedies when access to records or portions of records is denied. The requestor will be notified when staffing on this request is completed."

Stachewicz said if Defense denies this appeal, he would challenge the decision in court.

"Every contractor wants to get their competitors' performance scores, but they don't want to give up their own [scores]," Stachewicz said. The group's efforts to overturn the policy "ruffled a few feathers with our own clients. But we don't worry about that."

Trade groups that represent contractors argue the Obama administration can better accomplish transparency and accountability by putting the performance records in the hands of contracting decision-makers, as is the current practice.

Granting contractors access to their own records also allows companies to correct factual errors or to dispute evaluations with officials' superiors, said Alan Chvotkin, executive vice president and counsel of the Professional Services Council, a trade group for government contractors. "It's helpful for me as a vendor, because it's my information. It's information about me," he said. "I ought to be able to see the information that the contracting officer writes about me. It's my credit report if you will. But you don't publish your report cards in the Washington Post."

Chvotkin said he believes the administration will decide not to disclose the scores, pointing to its careful redactions in a recent online publication of a contract proposal to overhaul the Recovery.gov Web site.

"I think they recognize that legitimate proprietary information and source selection information should be broadly available in the government and you can protect the taxpayers' interests [that way] ... without disclosing that kind of information," he said.

Contractors say the scores would be meaningless without also disclosing the context from the supplementary confidential information. The aggregate ratings do not reflect the relative significance of individual projects, said Trey Hodgkins, vice president for national security and procurement policy at Tech America, an industry association.

For example, a company can earn low scores on insignificant projects and receive a high score of five out of five points on a more important project, such as the Recovery.gov redesign. But the aggregate low score would not reflect the more important Recovery.gov work, industry observers said.