Federal Transportation Officer Training Program: Basic ... · manage your transportation The...

Federal Transportation Officer Training Program: Basic (Level 1)

Freight, Cargo, and Household Goods

Session 8: Temporary Non-use, Suspension and Debarment

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Basic (Level 1) Session 8: Temporary Non-use, Suspension and Debarment

What You Will Learn

In this session, you will learn how to identify transportation service provider (TSP) performance using performance measures, the tools that are available to protect the government from risks associated with doing business with non-responsible contractors, and how to locate whether the TSP has a current active exclusion.

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Session 8 Outline

Why Should I Measure TSPPerformance?

How Is Transportation ServiceProvider PerformanceMeasured?

How Can the TransportationOfficer Deal with SubstandardTSP Performance?

What is an Active Exclusion?

Glossary of Terms

Knowledge Review

Where to Go for More Information

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Why Should I Measure TSP Performance?

Regardless of the contract method, your agency and the TSP have agreed on specified services that the TSP will provide.

Measuring TSP performance can address any questions or concerns about the servicing provided, validating whether the service was or was not performed as agreed upon.

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How Is Transportation Service Provider Performance Measured?

You should always expect consistent and satisfactory service from the TSP to meet you agency transportation needs, per Federal Management Regulation (FMR) §102-117.275.

Assessing TSP performance involves determining:

What will be measured

Minimum thresholds of acceptable performance

Data elements required for measurement

How data and information are captured and used to assess performance,and

How relative change in performance over time is measured.

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What are TSPs' performance measures?

Through tracking performance measures, you can assess the effectiveness of your agency's controls, policies, and processes, and identify areas where increased attention or change is needed.

Your agency can identify other performance measures or key performance indicators in addition to the industry standards listed on the next page. A key performance indicator means a particular value or characteristic used to measure output or outcome. You can locate information about TSP performance measures in Title 41, C, Chapter 102-117 Subpart H and Subpart I. Performance measures are a critical tool to improve transportation management.

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What type of performance can be measured?

FMR §102-117.280 provides some of the following examples of performance measure categories that your agency can use to rate TSPs. All of these measures are output measures, or tabulations, calculations, or recordings of activities or efforts that can be expressed in a quantitative or qualitative manner.

Suggested Performance Measure Categories

On-time shipment pickup On-time delivery

Shipment rejection rate Shipment tracing response time

Claims rate (how often) Extent of claims (value in dollars)

Use of electronic commerce services TSP's customer satisfaction rating

On-time returns Billing errors or improprieties

TSP's safety record (accidents, losses, damage, misdirected shipments

TSP's driver record (accidents, citations, complaints)

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What data is needed to support performance measuring?

The answer to this question depends on what performance measure category is selected. As part of the process to determine the categories to measure, you need to know what data your various information systems collect, and if there are other data sources you can access.

Relevant transportation data can come from:

Your agency's in-houseTransportationManagementSystem (TMS)

An external TMSused by anotheragency or acontractor tomanage yourtransportation

The financialsystem used toreceive and payinvoices, and

Your acquisitionsystems.

For example: To measure monthly on-time delivery performance, you will need to have access to the date and time each delivery was required at destination and the date and time each delivery actually occurred. Moreover, you will need to decide an appropriate threshold of acceptable performance for the month, such as 98% on-time delivery performance.

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How is relative change in performance over time measured?

Performance can be measured and represented in two main ways—snapshot measurements and trend measurements.

Snapshot measurements provide an indication of how well a TSP is meeting performance requirements over a specified time period. An example of a snapshot metric is the monthly on-time delivery performance of a TSP, or for all TSPs serving an agency.

Trend measurements look at the successive snapshot measurements over longer periods of time to identify improving or degrading performance. Trend measurements are often used by organizations to identify processes to review and change, and to assess how well those changes have worked. An example of a trend measurement is a plot of the monthly on-time delivery performance for an entire year.

If performance has dropped steadily from91% to 85%, with a minimal acceptableperformance threshold at 87%, this points toa process out of control that requiresinvestigation.

On the other hand, if performance has been steady at 97%, except for onemonth where it dipped to 75%, but then recovered to normal levels, thismight indicate an isolated incident or a problem with the reporting thatshould be investigated.

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How Can the Transportation Officer Deal with Substandard TSP Performance?

If you have determined that performance is falling below acceptable thresholds, you have a range of options depending on the acquisition method used to obtain the TSP's services.

For public or "market"tenders, which are tenderspublished on a TSP'swebsite, available toanyone, and which have adefault set of terms and conditions set by the TSP, your only course ofaction may be to choose not to do business with the TSP. An example ofwhere you may choose to use a public tender is for a one-time-only moveto a location where only one TSP can provide the service and meet thedelivery date.

For FAR/DFAR contracts, specific rules and adverse actions may bespecified in the contract.

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What are commonly-used adverse actions against TSPs?

To protect the government from the risks associated with doing business with non-responsible contractors, each agency may specify the following spectrum for dealing with non-performing TSPs. These actions take business away from the TSP.

The transportation officer (TO) should review the FAR, Subpart 9.4 and the agency's specific policy for guidance on temporary non-use, suspension, and debarment action procedures.

Cure notices are provided by the Contracting Officer to the TSP to advise of unacceptable performance and to encourage modification of behavior or correction of deficiencies. The Contracting Officer specifies the timeframe for correction for each Cure Notice, after which additional actions may be taken.

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What is temporary non-use?

Question Answer

Who initiates/approves? TO initiates and approves (§102-117.290)

How long? No more than 90 days

Affects other agencies? No, only applies to the issuing agency; the TSP can continue business with other agencies

Reasons Willful violation of terms of tender or contract Packing and pickup problems Failure to meet required delivery dates Violation of U.S. Department of Transportation (DOT) hazardous materials

(HAZMAT) regulations Mishandling freight, damaged or missing seals, improper packing, blocking and

bracing of loads Improper routing Operating without legal authority Subjecting U.S. property to seizure due to non-payment of debts Failure to pay claims Repeated failure to comply with DOT and/or other federal, state, or local

regulations

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What is suspension?

* Para 9.407-3 (a) Investigation and referral says "Agencies shall establish procedures for the prompt reporting,investigation, and referral to the suspending official of matters appropriate for that official's consideration ." The TO is

the most-cognizant of the TSP's performance issues.

Question Answer

Who initiates/approves? TO initiates* when there is an immediate need Suspension and Debarment Officer approves

How long? Temporary (usually less than 1 year), until conclusion of investigation or legal proceeding

Affects other agencies? Yes, the status of a TSP is listed in the entity record.

Evidence rules? Adequate evidence to make a determination

Reasons Fraud or a criminal offense in connection with obtaining, attempting to obtain,or performing a contract for transportation

Violation of federal or state antitrust law Embezzlement, theft, forgery, bribery, falsification or destruction of records,

making false statements, receiving stolen property Any other offense indicating a lack of business integrity or honesty that

seriously and directly affects the present responsibility of the TSP as atransporter of government property or HHG of government employees

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What is debarment?

Debarment is the most serious of adverse actions. The seriousness of the TSP's acts or omissions and the mitigating factors must be considered in making any debarment decisions.

* Para 9.406-3(a) Investigation and referral says "Agencies shall establish procedures for the prompt reporting,investigation, and referral to the suspending official of matters appropriate for that official's consideration ." The TO is

the most-cognizant of the TSP's performance issues.

Question Answer

Who initiates/approves? TO initiates* Agency head or designated representative approves

How long? Usually not to exceed 3 years, after the conclusion of investigation and legal proceedings

Affects other agencies? Yes, the status of the TSP is listed in the entity record and as such is no eligible to do business with any federal agency.

Evidence rules? Preponderance of evidence or conviction

Reasons Failure of the TSP to take necessary corrective actions within the period oftemporary non-use

Conviction of a civil judgment for any of the causes listed above resulting insuspension

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Who can be suspended or debarred?

Any individual or organization can be suspended or debarred that:

Directly or indirectly submitsoffers for or is awarded, or canreasonably be expected tosubmit offers for or be awarded,a government contract orsubcontract, or

Conducts business, orreasonably may be expected toconduct business, with thegovernment as an agent or representative of another contractor.

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How does suspension and debarment work?

If you suspect a violation, contact your agency's Office of the Inspector General (OIG), which will investigate the matter.

Following this investigation, the OIG will forward the investigative results to your agency's Suspension and Debarment Officer (SDO) for final determination of action (FAR Subpart 9.406-3).

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What actions are taken if the Suspension & Debarment Official (SDO) decides to proceed?

The TSP is notified by certified mail of the intent to suspend or debar. Reasons and causes are provided, and response is invited within 30 days.

For matters where there is no conviction or judgment, the TSP may:

Dispute the facts as presented by the government, and

Present witnesses and other materials in defense and mitigation.

The SDO hears and reviews all evidence put forth by both parties:

For non-conviction or judgment cases, the SDO considers evidence adequacy, and

For conviction/judgment cases, the SDO considers preponderance of evidence.

The SDO makes the suspension or debarment decision.

If positive, the agency notifies the TSP of the decision, reasons, and the effective dates. TSP is advised the debarment effect is throughout the government.

Active exclusion must be identified on the TSP business entity information.

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What about record keeping requirements?

If you intend to or do take adverse actions against TSPs, you must maintain transportation records and performance data for transportation activities. Transportation record keeping requirements associated with adverse actions are detailed in FMR §102-117.310. You should verifyany internal agency policy concerning record requirements. You must set up an agency-approved records system and capture/maintain the following:

Name, address, Standard Carrier Alpha Code (SCAC), and TaxpayerIdentification Number for each TSP

Duration of the period of temporary non-use status

Cause and facts resulting in the decision to impose a status change

Information and arguments submitted by the TSP or its representative, and

The reviewing official's determination regarding the change of status.

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What is an Active Exclusion?

An active exclusion is a suspension or debarment imposed by a federal agency.

Previously, agencies would review the Excluded Parties List System (EPLS) to determine contractor eligibility. As of November 21, 2012 the EPLS was retired and all exclusion capabilities will be located in the business entity information in the System for Award Management (SAM).

SAM replaces CCR/FedReg, ORCA, and EPLS. If you have been using those systems, you should now go to www.sam.gov to find your information.

SAM is operated by U.S. General Services Administration (GSA), but includes information submitted by all federal agencies/programs (FAR Subpart 9.404).

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How often should the SAM be checked?

The FAR (Subpart 9.405) recommends the contracting officer check the SAM business entity record at least twice before awarding any contract:

After all bids have been received andprior to bid-opening, and

Again immediately before the award.

These steps ensure that no ineligible

contractors are considered for the award.

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Glossary of Terms

The following terms are those frequently used in federal transportation; however,this is not an inclusive list of terms. You may want to refer to §102-117.25 and §102-118.35 for additional transportation definitions.

Temporary non-use is limited to your agency and initiated by the agency transportation officers for a period not to exceed 90 days.

Suspension is an action taken by an agency to disqualify a TSP for a temporary period of time from receiving orders for certain services under a contract or tender.

Debarment is an action to exclude a TSP, for a longer period of time, from providing services under a contract or tender.

Output measure means the tabulation, calculation, or recording of activity or effort that can be expressed in a quantitative or qualitative manner .

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Knowledge Review

What actions can an agency transportation officer take if the TSP performance is not satisfactory?

Call the Office of Inspector GeneralInitiate temporary non-useCall the loading dockContact the mail room

Answer: Call the Office of Inspector General and Initiate temporary non-use

Yes that's right. Calling the loading dock or the mail room will not result in official or effective communication and corrective measures internally or externally about the non-performance. As a TO, you may decide to initiate a temporary non-use action that will apply to your agency only. If you feel the TSP performance is a larger issue, you may contact the OIG to discuss the issue and let them investigate the potential for suspension or debarment.

Incorrect: Sorry, that's not correct. Calling the loading dock or the mail room will not result in official or effective communication and corrective measures internally or externally about the non-performance. As a TO, you may decide to initiate a temporary non-use action that will apply to your agency only. If you feel the TSP performance is a larger issue, you may contact the OIG to discuss the issue and let them investigate the potential for suspension or debarment.

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Where to Go for More Information

In addition to the sites identified in this session, you can find more information from the following:

The FAR provides regulatoryguidance on Suspension andDebarment (FederalAcquisition Regulation 9.4).Your agency may have alsodeveloped specific policy on suspension and debarment.

FMR §201-117 Subpart I, Transportation Service Provider Performance.

System for Award Management (www.sam.gov).

U.S. Government Accounting Office (GAO) reports (GAO 12-245T).

Your agency's acquisition and contracting office.

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