[Federal Register Volume 59, Number 33 (Thursday, February 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3666]


[[Page Unknown]]

[Federal Register: February 17, 1994]


_______________________________________________________________________

Part VII

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Part 9 et al.




Federal Acquisition Regulation; Past Performance Information; Proposed 
Rule
DEPARTMENT OF DEFENSE

General Services Administration

National Aeronautics and Space Administration

48 CFR Parts 9, 15, and 42

[FAR Case 93-2]

 
Federal Acquisition Regulation; Past Performance Information

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council (CAAC) and the Defense 
Acquisition Regulations Council (DARC) are proposing a change to the 
Federal Acquisition Regulation (FAR) to address requirements for use of 
past performance information in the contractor selection process.

DATES: Comments should be submitted on or before April 18, 1994 to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (VRS), 18th & F 
Streets NW., room 4037, Washington, DC 20405.
    Please cite FAR case 93-2 in all correspondence related to this 
case.

FOR FURTHER INFORMATION CONTACT:
Shirley Scott at (202) 501-0168 in reference to this FAR case. For 
general information, contact the FAR Secretariat, room 4035, GS 
Building, Washington, DC 20405; telephone: (202) 501-4755. Please cite 
FAR case 93-2.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed rule implements Office of Federal Procurement Policy 
Letter 92-5, Past Performance Information, which was published in the 
Federal Register at 58 FR 3573 on January 11, 1993.

B. Regulatory Flexibility Act

    The proposed changes to FAR Parts 9, 15, and 42 may have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., because the requirements for use of past performance information 
in contract award decisions may preclude award to otherwise successful 
offerors. The extent of the impact is not known. An Initial Regulatory 
Flexibility Analysis has been prepared and is summarized as follows:

    The proposed rule implements Office of Federal Procurement 
Policy Letter 92-5, Past Performance Information. The OFPP policy 
letter requires Federal agencies to evaluate contractor performance 
on all new contracts over $100,000, to use past performance 
information in making responsibility determinations in both sealed 
bid and competitively negotiated procurements, and to specify past 
performance as an evaluation factor in solicitations for 
competitively negotiated contracts expected to exceed $100,000. The 
rule establishes procedures for use of past performance information 
in the contractor selection process. A satisfactory performance 
record is a prerequisite to being determined a ``responsible 
source'' pursuant to 41 U.S.C. 403. The rule will apply to all large 
and small entities who perform or are interested in performing 
Government contracts. The rule will impose no new reporting or 
recordkeeping requirements on large or small entities. The rule 
implements OFPP Policy Letter 92-5, but does not duplicate, overlap, 
or conflict with any other Federal rules. There are no known 
alternatives which would accomplish the objectives of OFPP Policy 
Letter 92-5.

A copy of the Initial Regulatory Flexibility Analysis has been 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the FAR 
Secretariat. Comments are invited. Comments from small entities 
concerning the affected FAR subpart will also be considered in 
accordance with section 610 of the Act. Such comments must be submitted 
separately and cite FAR case 93-2 in the correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
rule does not impose recordkeeping or information collection 
requirements which require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 9, 15 and 42

    Government procurement.

    Dated: February 14, 1994.
Albert A. Vicchiolla,
Director, Office of Federal Acquisition Policy.
    Therefore, it is proposed that 48 CFR parts 9, 15, and 42 be 
amended as set forth below:
    1. The authority citation for 48 CFR parts 9, 15, and 42 continues 
to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 9--CONTRACTOR QUALIFICATIONS


9.104-1  [Amended]

    2. Section 9.104-1, paragraph (c) is amended by adding the words 
``and subpart 42.15'' at the end.
    3. Section 9.105-1, paragraph (c) introductory text, is revised as 
follows:


9.105-1  Obtaining information.

* * * * *
    (c) The contracting officer shall consider relevant past 
performance information (see subpart 42.15) in making determinations of 
responsibility or nonresponsibility. In addition, the contracting 
officer should use the following sources of information to support such 
determinations:
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

    4. Section 15.605, paragraph (b) is revised to read as follows:


15.605  Evaluation factors.

* * * * *
    (b)(1) The evaluation factors that apply to an acquisition and the 
relative importance of those factors are within the broad discretion of 
agency acquisition officials except that--
    (i) Price or cost to the Government shall be included as an 
evaluation factor in every source selection.
    (ii) Past performance shall be evaluated in all competitively 
negotiated acquisitions expected to exceed $100,000, unless the 
contracting officer documents in the contract file the reasons why past 
performance should not be evaluated. Past performance may be evaluated 
in competitively negotiated acquisitions estimated at $100,000 or less 
at the discretion of the contracting officer.
    (iii) Quality shall be addressed in every source selection. In 
evaluation factors, quality may be expressed in terms of technical 
excellence, management capability, personnel qualifications, prior 
experience, and schedule compliance.
    (2) Any other relevant factors, such as cost realism, may also be 
included.
* * * * *
    5. Section 15.608 is amended in the introductory text of paragraph 
(a) by removing the parenthetical phrase ``(as conveyed by the 
proposal)'', and by adding paragraph (a)(3) as follows:


15.608  Proposal evaluation.

    (a) * * *
    (3) Past performance evaluation. (i) Past performance information 
should be used in assessing performance risk. The assessment of 
performance risk should consider the relative merits of the offeror's 
prior experience and performance as compared to that of other competing 
offerors. The number and severity of an offeror's problems, the 
effectiveness of corrective actions taken, the offeror's overall work 
record, and the age and relevance of past performance information 
should be considered at the time it is used.
    (ii) Past performance information may be obtained from a variety of 
sources, including private firms. The source and type of past 
performance information to be included in the evaluation is within the 
broad discretion of agency acquisition officials and should be tailored 
to the circumstances of each procurement. Evaluations of contractor 
performance prepared in accordance with subpart 42.15 are one source of 
performance information which may be used.
    (iii) firms shall be allowed to compete for contracts even though 
they lack a history of relevant past performance.
* * * * *

PART 42--CONTRACT ADMINISTRATION

    6. Section 42.302 is amended by adding paragraph (b)(11) to read as 
follows:


42.302  Contract administration functions.

* * * * *
    (b) * * *
    (11) Prepare evaluations of contractor performance in accordance 
with subpart 42.15.
* * * * *
    7. Subpart 42.15, consisting of sections 42.1500 through 42.1503, 
is added to read as follows:

Subpart 42.15--Contractor Performance Information


42.1500  Scope of subpart.

    This subpart provides policies and establishes responsibilities for 
recording and maintaining contractor performance information. It 
implements Office of Federal Procurement Policy Letter 92-5, Past 
Performance Information. This subpart does not apply to procedures used 
by agencies in determining fees under award or incentive fee contracts.


42.1501  General.

    Past performance information is relevant information regarding a 
contractor's actions under previously awarded contracts. It includes, 
for example, the contractor's record of conforming to specifications 
and to standards of good workmanship; the contractor's record of 
forecasting and containing costs on any previously performed contracts; 
the contractor's adherence to contract schedules, including the 
administrative aspects of performance; the contractor's history for 
reasonable and cooperative behavior and commitment to customer 
satisfaction; and generally, the contractor's business-like concern for 
the interest of the customer. This information may be used in preparing 
evaluations of contractor performance under this subpart.


42.1502  Policy.

    (a) Except as provided in paragraph (b) of this section, agencies 
shall prepare an evaluation of contractor performance for each contract 
in excess of $100,000 at the time the work under the contract is 
completed. Additional evaluations may be prepared during the term of 
the contract. The content and format of performance evaluations shall 
be established in accordance with agency procedures and should be 
tailored to the size, content, and complexity of the contractual 
requirements.
    (b) Agencies shall evaluate construction contractor performance and 
architect/engineer contractor performance in accordance with 36.201 and 
36.604, respectively.


42.1503  Procedures.

    (a) Agency evaluations of contractor performance prepared under 
this subpart shall be provided to the contractor as soon as practicable 
after completion of the evaluation. Contractors shall be given a 
minimum of 30 days to submit comments, rebutting statements, or 
additional information. The ultimate conclusion and content of an 
evaluation is a decision of the contracting agency. Copies of the 
contractor response shall be permanently retained as part of the 
evaluation.
    (b) Departments and agencies are encouraged to share past 
performance information with other departments and agencies when 
considered appropriate and to the extent practicable to support future 
award decisions. However, past performance information including 
evaluations of contractor performance, shall not be provided to any 
private party without the contractor's consent, except in accordance 
with subpart 24.2.
    (c) Any past performance information systems, including automated 
systems, used for maintaining contractor performance information and/or 
evaluations should include appropriate management and technical 
controls to ensure that only authorized personnel have access to the 
data.
    (d) Past performance information should be updated as often as 
necessary to maintain the currency of the information, and shall not be 
retained for more than six years without being updated.

[FR Doc. 94-3666 Filed 2-16-94; 8:45 am]
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