[Federal Register Volume 60, Number 222 (Friday, November 17, 1995)]
[Proposed Rules]
[Pages 57691-57693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28433]
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DEPARTMENT OF DEFENSE
48 CFR Parts 213, 214, 215, and 242
[DFARS Case 95-D715]
Defense Federal Acquisition Regulation Supplement; Past
Performance
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comment.
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SUMMARY: The Department of Defense is proposing to amend the Defense
Federal Acquisition Regulation Supplement (DFARS) to reflect the
requirements of Section 1091 of the Federal Acquisition Streamlining
Act of 1994 and the requirements of OFPP Policy Letter 92-5, Past
Performance Information.
DATES: Comments on the proposed rule should be submitted in writing to
the DFARS Secretariat at the address shown below on or before January
16, 1996 to be considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: IMD 3D139, PDUSD (A&T),
3062 Defense Pentagon, Washington, DC 20301-3062. Please cite DFARS
Case 95-D715 in all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT: Ms. Melissa D. Rider, at (703) 602-
0131. Please cite DFARS case 95-D715.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355
(FASA), provides authorities that streamline the acquisition process
and minimize burdensome government-unique requirements. Major changes
in the acquisition process as a result of FASA implementation include
changes in the areas of Commercial Item Acquisition, Simplified
Acquisition Procedures, the Truth in Negotiations Act, and introduction
of the Federal Acquisition Computer Network (FACNET).
At the request of the Administrator, Office of Federal Procurement
Policy, the DoD Past Performance Coordinating Council (PPCC) was tasked
by the FASA DFARS Implementation Manager to develop DFARS coverage for
implementing Section 1091 of FASA. There were no associated FAR changes
that were published as a FASA-related rule, as the final FAR rule
published in the Federal Register on March 31, 1995 (60 FR 16718)
already complied with FASA requirements.
The following changes to DFARs were developed by the PPCC to
implement OFPP Policy Letter 92-5, Past Performance Information, and
Section 1091 of FASA:
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1. DFARS Part 213 coverage has been added to provide guidance for
actions using simplified acquisition procedures.
2. DFARS Part 214 coverage allows contracting officers to quantify
past performance information (PPI) as a price-related factor.
3. DFARS Past 215 coverage accelerates the FAR phase-in schedule,
taking two years to get to the $100,000 threshold; assures appropriate
weighting of PPI; encourages (rather than mandates) use under $100,000;
and requires validation of PPI before it is used.
4. DFARS 242.1502 provides requirements for preparing evaluations
of performance on individual contracts; accelerates the preparation of
the evaluation beyond the use requirements in 214 and 215; provides
instructions for interim evaluations--this is the agency direction
required by the FAR; and provides a list of required information for
performing evaluations. Use of a standardized list will help the
exchange of PPI among the DoD components. The list is based on the form
in the OFPP Interim Guide to Best Practices for Past Performance, and
has been tailored to meet the needs of DoD Components. This is not a
standard form, but in the future may be an evaluation tool that can be
readily accessible via electronic commerce/electronic data interchange
(EC/EDI).
5. DFARS 242.1503(a) states the contracting officer specifies who
provides performance evaluations (as a default, Defense Contract
Management Command (DCMC) ACOs will fill out the form unless the
contracting officer specifies otherwise); requires the evaluator to
validate PPI with the contractor; addresses non-response by contractors
who were asked for validation; and defines contract completion as the
time all contract close-out actions are complete.
B. Regulatory Flexibility Act
The proposed DFARS changes 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 this impact is not known, although it is believed that the
regulatory flexibility analysis performed for FAR Case 93-2, Past
Performance Information (60 FR 16718, March 31, 1995), has already
addressed the effects on small businesses. However, an Initial
Regulatory Flexibility Analysis has been performed for this proposed
DFARS rule. Comments are invited from small businesses and other
interested parties. Comments from small entities concerning the
affected DFARS subparts will also be considered in accordance with
Section 610 of the Act. Such comments must be submitted separately and
cite DFARS Case 95-D715 in correspondence.
C. The Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements which require the approval of Office of Management and
Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 213, 214, 215, and 242
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, it is proposed that 48 CFR parts 213, 214, 215, and 242
be amended as set forth below:
1. The authority citation for 48 CFR parts 213, 214, 215, and 242
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 213--SIMPLIFIED ACQUISITION PROCEDURES
2. The heading of Part 213 is revised to read as set forth above.
3. Section 213.106-1 is added to read as follows:
213.106-1 Soliciting competition, evaluation of quotes, and award.
(b)(1) Use of past performance information is not mandatory for
solicitations less than $100,000; however, it is encouraged.
PART 214--SEALED BIDDING
4. Section 214.201-8 is added to read as follows:
214.201-8 Price related factors.
(a) An offeror's record of past performance may be used as an
indication of foreseeable costs and delays and may be evaluated where
these costs can be reduced to a price-related evaluation factor. For
example, where a poor performance record requires a preaward survey or
where a record of delivering nonconforming parts would require source
inspection, and a preaward survey or source inspection would not
otherwise be required, an evaluation factor covering those additional
costs may be applied. The method by which these price-related factors
will be determined and applied shall be included in the solicitation.
PART 215--CONTRACTING BY NEGOTIATION
5. Section 215.605 is amended by redesignating paragraph (b) as
paragraph (b)(2) and by adding paragraph (b)(1)(ii) to read as follows:
215.605 Evaluation factors.
(b)(1)(ii) Notwithstanding FAR 15.605(b)(ii), past performance
shall be evaluated in all competitively negotiated acquisitions in
excess of $1 million issued on or after July 1, 1995, in excess of
$500,000 issued on or after July 1, 1996, and in excess of $100,000
issued on or after July 1, 1997. When past performance is evaluated, it
should be a significant evaluation factor or significant subfactor.
Although the use of past performance is not mandatory for solicitations
less than $100,000, it is encouraged. Past performance information from
contractor performance evaluations shall not be used in source
selections until the requirements of 242.1503(b) have been met.
* * * * *
PART 242--CONTRACT ADMINISTRATION
6. Subpart 242.15 is added to read as follows:
Subpart 242.15--Contractor Performance Information
Sec.
242.1502 Policy.
242.1503 Procedures.
242.1502 Policy.
(a) Notwithstanding FAR 42.1502, contractor performance evaluations
shall be prepared for all contracts in excess of $1 million effective
July 1, 1995, and $100,000 effective July 1, 1996. For contracts
exceeding 18 months, interim evaluations should be prepared annually.
(S-70) Agencies shall prepare an evaluation of contractor
performance including the following information:
(1) Whether the report is a final or interim report;
(2) What period the report covers;
(3) The contractor's name, address, and telephone number;
(4) The contract number, value, award date, and completion date;
(5) The type of contract;
(6) A description of the requirement;
(7) An evaluation of the contractor's performance in the following
areas, including a rating and supporting rationale:
(i) Quality of Product or Service;
[[Page 57693]]
(ii) Cost Control;
(iii) Timeliness of Performance;
(iv) Customer Satisfaction (Contracting/Business Relations);
(v) Customer Satisfaction (End User/Business Relations); and
(vi) Rater's Overall Assessment.
(8) An evaluation of key contractor personnel for services and R&D
contracts;
(9) The evaluator's name, address, telephone number and dated
signature;
(10) Whether the contractor provided comments, rebuttals or
additional information. If such information was provided, it shall be
attached to the Government evaluation;
(11) A resolution of contractor comments; and
(12) The final review authority's name, address, phone number, and
dated signature.
(S-71) Evaluations completed in accordance with paragraph (S-70) of
this section shall consider the following areas:
(1) Quality of product or service. This includes the following
aspects of performance:
(i) Compliance with contract requirements;
(ii) Accuracy of reports;
(iii) Appropriateness of contractor personnel assigned to the
contract; and
(iv) Technical excellence of delivered supplies or services.
(2) Cost Control. This includes the following aspects of
performance:
(i) Current, accurate, and complete billings;
(ii) The relationship of negotiated cost to actuals;
(iii) Cost containment initiatives; and
(iv) The number and cause of change orders issued.
(3) Timeliness of Performance. This includes the following aspects
of performance:
(i) Whether the contractor met interim milestones;
(ii) Contractor's responsiveness to technical direction;
(iii) Contractor's responsiveness to contract change orders and
administrative requirements;
(iv) Whether the contract was completed on time, including wrap-up
and contract administration; and
(v) Whether liquidated damages were assessed.
(4) Business Relations/Customer Satisfaction. This includes the
following aspects of performance:
(i) Whether the contractor effectively managed the contract effort;
(ii) How responsive the contractor was to contract requirements;
(iii) How promptly the contractor notified the Government of
problems;
(iv) Whether the contractor was reasonable and cooperative;
(v) How flexible the contractor was;
(vi) Was the contractor proactive;
(vii) How effective were contractor-recommended solutions; and
(viii) Did the contractor effectively implement socio-economic
programs, including compliance with requirements of the clause at FAR
52.219-8, Utilization of Small, Small Disadvantaged and Women-Owned
Small Business Concerns, and 52.219-9, Small, Small Disadvantaged and
Women-Owned Small Business Subcontracting Plan.
(S-72) The following adjectival ratings shall be used when rating
each area described in paragraph (S-71):
(1) Unsatisfactory.
(i) Quality of Product or Service.
Nonconformances are compromising the achievement of contract
requirements, despite the use of Agency resources.
(ii) Cost Control. Cost issues are compromising performance of
contract requirements.
(iii) Timeliness of Performance. Delays are compromising the
achievement of contract requirements, despite the use of Agency
resources.
(iv) Business Relations Customer Satisfaction. Response to
inquiries, technical service, and administrative issues is not
effective and responsive.
(2) Poor.
(i) Quality of Product or Service. Nonconformances require major
Agency resources to ensure achievement of contract requirements.
(ii) Cost Control. Cost issues require major Agency resources to
ensure achievement of contract requirements.
(iii) Timeliness of Performance. Delays require major Agency
resources to ensure achievement of contract requirements.
(iv) Business Relations Customer Satisfaction. Response to
inquiries, technical service, and administrative issues is marginally
effective and responsive.
(3) Fair.
(i) Quality of Product or Service. Nonconformances require minor
Agency resources to ensure achievement of contract requirements.
(ii) Cost Control. Cost issues require minor Agency resources to
ensure achievement of contract requirements.
(iii) Timeliness of Performance. Delays require minor Agency
resources to ensure achievement of contract requirements.
(iv) Business Relations Customer Satisfaction. Response to
inquiries, technical service, and administrative issues is somewhat
effective and responsive.
(4) Good.
(i) Quality of Product or Service. Nonconformances do not impact
achievement of contract requirements.
(ii) Cost Control. Cost issues do not impact achievement of
contract requirements.
(iii) Timeliness of Performance. Delays do not impact achievement
of contract requirements.
(iv) Business Relations Customer Satisfaction. Response to
inquiries, technical service, and administrative issues is usually
effective and responsive.
(5) Excellent.
(i) Quality of Product or Service. There are no quality problems.
(ii) Cost Control. There are no cost issues.
(iii) Timeliness of Performance. There are no delays.
(iv) Business Relations Customer Satisfaction. Response to
inquiries, technical service, and administrative issues is effective
and responsive.
(6) Plus. The contractor has demonstrated an exceptional
performance level in any of the four categories described in paragraph
(S-71). It is expected that this rating will be used in those rare
circumstances when contractor performance clearly exceeds the
performance levels described as ``excellent.''
242.1503 Procedures.
(a) The contracting officer will determine who provides input on
the contractor performance evaluations. Where the contract has been
delegated for administration, the cognizant ACO shall complete
performance evaluations unless otherwise advised by the PCO.
(b) (S-70) The agency preparing the performance evaluation shall be
responsible for validating the past performance information.
(S-71) If the contractor does not respond within the period
specified, the data may be assumed to be accurate and may be used in
source selections.
(e) The date of completion of contract performance is the date of
contract closeout.
[FR Doc. 95-28433 Filed 11-16-95; 8:45 am]
BILLING CODE 5000-04-M
