[Federal Register Volume 60, Number 62 (Friday, March 31, 1995)]
[Rules and Regulations]
[Pages 16718-16720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7827]
[[Page 16717]]
_______________________________________________________________________
Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 9, 15, and 42
Federal Acquisition Regulation; Past Performance Information; Final
Rule
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules
and Regulations
[[Page 16718]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9, 15, and 42
[FAC 90-26; FAR Case 93-02]
RIN 9000-AG45
Federal Acquisition Regulation; Past Performance Information
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to issue Federal
Acquisition Circular (FAC) 90-26, a final rule amending the Federal
Acquisition Regulation (FAR) to establish requirements for the use of
past performance information in the contractor selection process. This
regulatory action was subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
EFFECTIVE DATE: May 30, 1995.
FOR FURTHER INFORMATION CONTACT:
Ms. Linda Klein at (202) 501-3775 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-26,
FAR case 93-02.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed FAR rule was published in the Federal Register at 59 FR
8108 on February 17, 1994. The proposed rule required evaluation of
past performance in all competitively negotiated acquisitions expected
to exceed $100,000, and evaluation of contractor performance on all new
contracts exceeding $100,000.
Thirty-five comments from twenty-five sources were received during
the public comment period. All comments were considered in the
development of this final rule. The final rule differs from the
proposed rule in that it (1) permits agencies to use a phase-in
approach for implementation of past performance evaluation
requirements; (2) clarifies that firms lacking relevant performance
history shall receive a neutral evaluation for past performance; (3)
permits offerors to submit relevant past performance information to the
Government; (4) excludes contracts awarded under FAR Subparts 8.6 and
8.7 from the requirement for evaluation of contractor performance; (5)
provides that past performance information files shall not be retained
to provide source selection information for longer than three years
after completion of contract performance; and (6) contains additional
guidance to facilitate the collection and use of past performance
information.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) applies to
this final rule and a Final Regulatory Flexibility Analysis has been
performed. A copy of the analysis may be obtained from the FAR
Secretariat.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the final 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: March 27, 1995.
C. Allen Olson,
Director, Office of Federal Acquisition Policy.
Federal Acquisition Circular
FAC 90-26
Federal Acquistion Circular (FAC) 90-26 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and Space
Administration.
All Federal Acquisition Regulation (FAR) and other directive
material contained in FAC 90-26 are effective May 30, 1995.
Dated: February 27, 1995.
Eleanor R. Spector,
Director, Defense Procurement.
Dated: February 2, 1995.
Deidre A. Lee,
Associate Administrator for Procurement, NASA.
Ida M. Ustad,
Associate Administrator, Office of Acquisition Policy, GSA.
Therefore, 48 CFR Parts 9, 15, and 42 are 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
2. Section 9.104-1(c) is revised to read as follows:
9.104-1 General standards.
* * * * *
(c) Have a satisfactory performance record (see 48 CFR 9.104-3(c)
and part 42, subpart 42.15). A prospective contractor shall not be
determined responsible or nonresponsible solely on the basis of a lack
of relevant performance history, except as provided in 9.104-2;
* * * * *
3. Section 9.105-1(c) is amended by revising the introductory text
to read as follows:
9.105-1 Obtaining information.
* * * * *
(c) In making the determination of responsibility (see 9.104-1(c)),
the contracting officer shall consider relevant past performance
information (see 48 CFR part 42, subpart 42.15). In addition, the
contracting officer should use the following sources of information to
support such determinations:
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
4. Section 15.406-5(b) is amended by revising the last two
sentences to read as follows:
15.406-5 Part IV--Representations and instructions.
* * * * *
(b) * * * The severable parts should provide for separation of cost
or pricing data, past performance data and, when needed, technical
data. The instructions may specify further organization of proposal or
quotation parts, such as (1) administrative, (2) management, (3)
technical, (4) past performance, and (5) cost or pricing data.
* * * * *
5. Section 15.604 is amended by revising paragraphs (b) and (c)(3)
to read as follows:
15.604 Responsibilities.
* * * * *
(b) The cognizant technical official is responsible for the
technical and past performance requirements related to the source
selection process.
(c) * * *
(3) Conducting or controlling all negotiations concerning cost or
price, technical requirements, past [[Page 16719]] performance, and
other terms and conditions; and
* * * * *
6. Section 15.605 is amended by revising paragraph (b), removing
paragraph (c), redesignating (d), (e) and (f) as (c), (d) and (e),
respectively, and revising newly-redesignated (d) 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 not later than
January 1, 1999, unless the contracting officer documents in the
contract file the reasons why past performance should not be evaluated.
Agencies may develop their own phase-in schedule for past performance
evaluations which meets or exceeds the following milestones: All
solicitations with an estimated value in excess of (A) $1,000,000
issued on or after July 1, 1995; (B) $500,000 issued on or after July
1, 1997; and (C) $100,000 issued on or after January 1, 1999. 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 through
inclusion in one or more of the non-cost evaluation factors, such as
past performance, technical excellence, management capability,
personnel qualifications, prior experience, and schedule compliance.
(2) Any other relevant factors, such as cost realism, may also be
included.
* * * * *
(d) The solicitation should be structured to provide for the
selection of the source whose proposal offers the greatest value to the
Government in terms of performance, risk management, cost or price, and
other factors. The solicitation shall clearly state the evaluation
factors, including cost or price, cost or price-related factors, past
performance and other non-cost or non-price-related factors, and any
significant subfactors, that will be considered in making the source
selection, and their relative importance (see 15.406-5(c)). Numerical
weights, which may be employed in the evaluation of proposals, need not
be disclosed in solicitations. The solicitation shall inform offerors
of minimum requirements that apply to particular evaluation factors and
significant subfactors.
* * * * *
7. Section 15.608(a) is amended by revising the introductory text,
redesignating paragraph (a)(2) as (a)(3), and adding a new paragraph
(a)(2) to read as follows:
15.608 Proposal evaluation.
(a) Proposal evaluation is an assessment of both the proposal and
the offeror's ability to successfully accomplish the prospective
contract. An agency shall evaluate competitive proposals solely on the
factors specified in the solicitation.
* * * * *
(2) Past performance evaluation. (i) Past performance information
is an indicator of an offeror's ability to perform the contract. The
comparative assessment of past performance information is separate from
the responsibility determination required under 48 CFR 9.103. 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) Where past performance is to be evaluated, the solicitation
shall afford offerors the opportunity to identify Federal, state and
local government, and private contracts performed by the offerors that
were similar in nature to the contract being evaluated, so that the
Government may verify the offerors' past performance on these
contracts. In addition, at the discretion of the contracting officer,
the offerors may provide information on problems encountered on the
identified contracts and the offerors' corrective actions. Past
performance information may also be obtained from other sources known
to the Government. 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 acquisition. Evaluations of contractor
performance prepared in accordance with 48 CFR part 42, subpart 42.15
are one source of performance information which may be used.
(iii) Firms lacking relevant past performance history shall receive
a neutral evaluation for past performance.
* * * * *
8. Section 15.610 is amended by removing the word ``and'' at the
end of paragraph (c)(4) and the period at the end of (c)(5) and
inserting ``; and'' in its place; and by adding paragraph (c)(6) to
read as follows:
15.610 Written or oral discussion.
* * * * *
(c) * * *
(6) Provide the offeror an opportunity to discuss past performance
information obtained from references on which the offeror had not had a
previous opportunity to comment. Names of individuals providing
reference information about an offeror's past performance shall not be
disclosed.
* * * * *
9. Section 15.1003(b) is amended by removing the word ``and'' at
the end of paragraph (b)(2) and the period at the end of (b)(3) and
inserting ``; and'' in its place; and by adding paragraph (b)(4) to
read as follows:
15.1003 Debriefing of unsuccessful offerors.
* * * * *
(b) * * *
(4) Names of individuals providing reference information about an
offeror's past performance.
* * * * *
PART 42--CONTRACT ADMINISTRATION
10. 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.
* * * * *
11. Subpart 42.15 is added to read as follows:
Subpart 42.15--Contractor Performance Information
Sec.
42.1500 Scope of subpart.
42.1501 General.
42.1502 Policy.
42.1503 Procedures.
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.
[[Page 16720]] However, the fee amount paid to contractors should be
reflective of the contractor's performance and the past performance
evaluation should closely parallel the fee determinations.
42.1501 General.
Past performance information is relevant information, for future
source selection purposes, regarding a contractor's actions under
previously awarded contracts. It includes, for example, the
contractor's record of conforming to contract requirements and to
standards of good workmanship; the contractor's record of forecasting
and controlling costs; the contractor's adherence to contract
schedules, including the administrative aspects of performance; the
contractor's history of reasonable and cooperative behavior and
commitment to customer satisfaction; and generally, the contractor's
business-like concern for the interest of the customer.
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 $1,000,000 beginning July 1, 1995, $500,000 beginning July
1, 1996, and $100,000 beginning January 1, 1998, (regardless of the
date of contract award) at the time the work under the contract is
completed. In addition, interim evaluations should be prepared as
specified by the agencies to provide current information for source
selection purposes, for contracts with a period of performance,
including options, exceeding one year. This evaluation is generally for
the entity, division, or unit that performed 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 not evaluate performance for contracts awarded
under 48 CFR part 8, subparts 8.6 and 8.7. Agencies shall evaluate
construction contractor performance and architect/engineer contractor
performance in accordance with 48 CFR 36.201 and 36.604, respectively.
42.1503 Procedures.
(a) Agency procedures for the past performance evaluation system
shall generally provide for input to the evaluations from the technical
office, contracting office and, where appropriate, end users of the
product or service.
(b) 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. Agencies shall provide for review at a level
above the contracting officer to consider disagreements between the
parties regarding the evaluation. The ultimate conclusion on the
performance evaluation is a decision of the contracting agency. Copies
of the evaluation, contractor response, and review comments, if any,
shall be retained as part of the evaluation. These evaluations may be
used to support future award decisions, and should therefore be marked
``Source Selection Information''. The completed evaluation shall not be
released to other than Government personnel and the contractor whose
performance is being evaluated during the period the information may be
used to provide source selection information. Disclosure of such
information could cause harm both to the commercial interest of the
Government and to the competitive position of the contractor being
evaluated as well as impede the efficiency of Government operations.
Evaluations used in determining award or incentive fee payments may
also be used to satisfy the requirements of this subpart.
(c) Departments and agencies shall share past performance
information with other departments and agencies when requested to
support future award decisions. The information may be provided through
interview and/or by sending the evaluation and comment documents to the
requesting source selection official.
(d) 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.
(e) The past performance information shall not be retained to
provide source selection information for longer than three years after
completion of contract performance.
[FR Doc. 95-7827 Filed 3-30-95; 8:45 am]
BILLING CODE 6820-34D-P
