Federal Transportation Officer Training Program: Basic (Level 1)

Transcription

1 Page 1 of 23 Federal Transportation Officer Training Program: Basic (Level 1) Freight, Cargo, and Household Goods Session 8: Temporary Non-use, Suspension and Page 1 of 23

2 Page 2 of 23 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 nonresponsible contractors, and how to locate whether the TSP has a current active exclusion. Page 2 of 23

3 Page 3 of 23 Session 8 Outline Why Should I Measure TSP Performance? How Is Transportation Service Provider Performance Measured? How Can the Transportation Officer Deal with Substandard TSP Performance? What is an Active Exclusion? Glossary of Terms Knowledge Review Where to Go for More Information Page 3 of 23

4 Page 4 of 23 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. Page 4 of 23

5 Page 5 of 23 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) 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. Page 5 of 23

6 Page 6 of 23 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 Subpart H and Subpart I. Performance measures are a critical tool to improve transportation management. Page 6 of 23

7 Page 7 of 23 What type of performance can be measured? FMR 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 Shipment rejection rate Claims rate (how often) Use of electronic commerce services On-time returns TSP's safety record (accidents, losses, damage, misdirected shipments On-time delivery Shipment tracing response time Extent of claims (value in dollars) TSP's customer satisfaction rating Billing errors or improprieties TSP's driver record (accidents, citations, complaints) Page 7 of 23

8 Page 8 of 23 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 inhouse Transportation Management System (TMS) An external TMS used by another agency or a contractor to manage your transportation The financial system used to receive and pay invoices, and Your acquisition systems. 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. Page 8 of 23

9 Page 9 of 23 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 ontime 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 from 91% to 85%, with a minimal acceptable performance threshold at 87%, this points to a process out of control that requires investigation. On the other hand, if performance has been steady at 97%, except for one month where it dipped to 75%, but then recovered to normal levels, this might indicate an isolated incident or a problem with the reporting that should be investigated. Page 9 of 23

10 Page 10 of 23 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 tenders published on a TSP's website, available to anyone, and which have a default set of terms and conditions set by the TSP, your only course of action may be to choose not to do business with the TSP. An example of where you may choose to use a public tender is for a one-time-only move to a location where only one TSP can provide the service and meet the delivery date. For FAR/DFAR contracts, specific rules and adverse actions may be specified in the contract. Page 10 of 23

11 Page 11 of 23 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. Page 11 of 23

12 Page 12 of 23 What is temporary non-use? Question Answer Who initiates/approves? TO initiates and approves ( ) How long? Affects other agencies? No more than 90 days 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 Page 12 of 23

13 Page 13 of 23 What is suspension? Question Answer Who initiates/approves? TO initiates* when there is an immediate need Suspension and Officer approves How long? Affects other agencies? Evidence rules? Temporary (usually less than 1 year), until conclusion of investigation or legal proceeding Yes, the status of a TSP is listed in the entity record. 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 a transporter of government property or HHG of government employees * Para (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. Page 13 of 23

14 Page 14 of 23 What is 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. Question Answer Who initiates/approves? TO initiates* Agency head or designated representative approves How long? Affects other agencies? Evidence rules? Usually not to exceed 3 years, after the conclusion of investigation and legal proceedings 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. Preponderance of evidence or conviction Reasons Failure of the TSP to take necessary corrective actions within the period of temporary non-use Conviction of a civil judgment for any of the causes listed above resulting in suspension * Para (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. Page 14 of 23

15 Page 15 of 23 Who can be suspended or debarred? Any individual or organization can be suspended or debarred that: Directly or indirectly submits offers for or is awarded, or can reasonably be expected to submit offers for or be awarded, a government contract or subcontract, or Conducts business, or reasonably may be expected to conduct business, with the government as an agent or representative of another contractor. Page 15 of 23

16 Page 16 of 23 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 Officer (SDO) for final determination of action (FAR Subpart ). Page 16 of 23

17 Page 17 of 23 What actions are taken if the Suspension & 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. Page 17 of 23

18 Page 18 of 23 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 You should verify any internal agency policy concerning record requirements. You must set up an agencyapproved records system and capture/maintain the following: Name, address, Standard Carrier Alpha Code (SCAC), and Taxpayer Identification 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. Page 18 of 23

19 Page 19 of 23 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 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). Page 19 of 23

20 Page 20 of 23 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 and prior to bid-opening, and Again immediately before the award. These steps ensure that no ineligible contractors are considered for the award. Page 20 of 23

21 Page 21 of 23 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 and 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. 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. Page 21 of 23

22 Page 22 of 23 Knowledge Review What actions can an agency transportation officer take if the TSP performance is not satisfactory? Call the Office of Inspector General Initiate temporary non-use Call the loading dock Contact the mail room Answer: Call the Office of Inspector General and Initiate temporary nonuse 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. Page 22 of 23

23 Page 23 of 23 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 regulatory guidance on Suspension and (Federal Acquisition Regulation 9.4). Your agency may have also developed specific policy on suspension and debarment. FMR Subpart I, Transportation Service Provider Performance. System for Award Management ( U.S. Government Accounting Office (GAO) reports (GAO T). Your agency's acquisition and contracting office. Page 23 of 23