An official website of the United States Government
fac90_26
From: Summerour, Richard, SAF/AQCF Date: 4/4/95 8:26am
Subject:
FAC 9026
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
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9, 15, and 42
[FAC 9026; FAR Case 9302]
RIN 9000AG45
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.
SUMMARY: The Civilian Agency Acquisition
Council and the Defense Acquisition Regulations Council have agreed
to issue Federal Acquisition Circular (FAC) 9026, 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) 5013775
in reference to this FAR case. For general information, contact
the FAR Secretariat, Room 4037, GS Building, Washington, DC 20405
(202) 5014755. Please cite FAC 9026, FAR case 9302.
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.
Thirtyfive comments from twentyfive
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 phasein 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 9026
Federal Acquistion Circular (FAC) 9026 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 9026
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 9CONTRACTOR QUALIFICATIONS
2. Section 9.1041(c) is revised
to read as follows:
9.1041 General standards.
* * * * *
(c) Have a satisfactory performance record (see 48 CFR 9.1043(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 9.1042;
* * * * *
3. Section 9.1051(c) is amended
by revising the introductory text to read as follows:
9.1051 Obtaining information.
* * * * *
(c) In making the determination of responsibility (see 9.1041(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 15CONTRACTING BY NEGOTIATION
4. Section 15.4065(b) is amended
by revising the last two sentences to read as follows:
15.4065 Part IVRepresentations
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 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
newlyredesignated (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 phasein 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 noncost 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 pricerelated factors, past performance and other noncost or nonpricerelated factors, and any significant subfactors, that will be considered in making the source selection, and their relative importance (see 15.4065(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 42CONTRACT 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 42.15Contractor 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 925, Past Performance Information. This subpart
does not apply to procedures used by agencies in determining fees
under award or incentive fee contracts. 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 businesslike 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.
To correct FACs 90-23 and 24 looseleaf,
the following filing instructions and related pages are provided:
Remove Pages Insert Pages
53-129 thru 53-132 53-129 thru 53-132
Appendix B Appendix B
(pp. 7 & 8) (pp. 7 & 8)
Appendix B Appendix B
(pp. 53 & 54) (pp. 53 & 54)
4-5 and 4-6 4-5 and 4-6
To correct FAC 90-26 looseleaf, please
substitute the following pages:
Remove
Replace
42-5 and 42-6 42-5 and 42-6
