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Jamaal Valentine

FAR 1.102, Permissible Exercise of Authority

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FAR 1.102[d] and 1.102-4[e] provide if a specific strategy, practice, policy, or procedure is not addressed in the FAR, nor prohibited by law, Executive order or other regulation that the strategy, practice, policy, or procedure is permissible.

What are some common or uncommon FAR limiting or prohibiting statements?

Examples - shall not, must not, up to, within, but not exceed(ing), etc.

How about should not or may not?

Here's a working example for consideration: DFARS 217.204[e][A], May be for any period up to 5 years

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What are some common or uncommon FAR limiting or prohibiting statements?

What are you looking for? Are you looking for actual such statements? Complete statements or just the verbal constructions?

As for should and should not, look up the definition of should in FAR 2.101.

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Your question is too broad, and the answer depends on what you mean by "limiting."

There are the standard imperatives, such as shall, shall not, must, must not, may not, should, and should not. But there are many thousands of sentences that could be considered "limiting," such as FAR 15.303: "The contracting officer is designated as the source selection authority unless the agency head appoints another individual for a particular acquisition or group of acquisitions." That sentence places a limit on the persons who can be SSA. The paragraph at FAR 22.402(a)(1), about the applicability of FAR Subpart 22.4 is "limiting." Official definitions are limiting. Et cetera.

What to watch out for? Everything.

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This helps for internal discussions/training.

The routine water cooler talks debate whether definitions define what something is, but not necessarily what it isn't...or if 'includes' is a limiting statement (English says no, but some argue yes), etc.

Example (ignoring that this could/should be reworded):

The government will evaluate recent past performance.

Past performance includes current and previous contracts performed within three years of solicitation issuance.

Would you read this as defining (limiting) recent as within 3 years?

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I don't know where you got that definition of past performance. It is not an official definition that I recognize. The official definition of past performance in FAR 2.101 is:

Past performance means an offeror's or contractor's performance on active and physically completed contracts (see 4.804-4).

That definition does not limit past performance to previous contracts performed within three years of solicitation issuance.

I consider only official definitions to be limiting.

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I should have clarified that the definition came from internal sources.

I participate in a small group of junior personnel attempting to train. The general question was presented here primarily to get other thoughts and inputs on factors to consider.

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Anything "addressed in FAR" is potentially limiting, depending on what it says and the context.

The "three year" thing with respect to past performance is generally a misunderstanding of FAR 42.1503(g). Some people mistakenly think agencies are prohibited from considering performance older than three years. Urban myth. See ManTech SRS Technologies, Inc., B-408452, 2-13 CPD ¶ 249, Sept. 24, 2013. See also Oregon Iron Works, B-284088.2, 2000 CPD ¶ 119. June 15, 2000, and D.F. Zee's Fire Fighter Catering, B-280767.4, 99-2 CPD ¶ 62, Sept. 10, 1999. Finally, see BLR Group of America v. U.S., 94 Fed. Cl. 354 (2010).

Edited by Vern Edwards

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FAR case 2015-027 is to "Update[ ] FAR subpart 42.15 to identify "regulatory compliance" as a separate evaluation factor in the Contractor Past Performance Assessment System (CPARS) and [to] require agencies use past performance information in the Past Performance Information Retrieval System (PPIRS) that is within three years for construction and architect-engineer contracts."

Status, as of 11 Jan 2016: "09/25/2015 Resubmitted to OFPP. OFPP identified draft proposed FAR rule issues. OFPP, FAR and DAR staff resolving issues."

I have long limited the period of consideration of past performance in construction and design-build source selections to projects completed within either 3 or 5 years of the date of the solicitation in the submission requirements and evAluation criteria. We used 5 years in the Model RFP used for billions of dollars worth of design-build projects for the Army MILCON Transformation (MILCON and BRAC).

The reasons? Rate of technology advancements, turnover of key personnel in the A-E and construction industry, mergers and acquisitions that greatly affect the character and composition of construction and A-E firms, bankruptcies and other past financial difficulties that have been overcome. Some construction contracts can take 4-5 years or more to accomplish after solicitation and award. That's could be a very old design and award.

I was involved with contracts where the contractor, in one case was in the top 10 of the top 400 Contractors, declared Chapter 11 and couldn't obtain additional bond coverage for even a $5000 change. We had to reform one contract to cost reimbursable (no fee) or face several years delay in completing a Treaty mandated critical defense project. The firm emerged within a year or so after they sued Raytheon for not disclosing billions of dollars of cost overruns on certain projects when Raytheon sold Raytheon Engineers and Constructors to the other firm. Shay Assad, with Raytheon Engineers and Constructors at the time of the sale, was named in that lawsuit... Even the big boys have their temporary problems.

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Joel:

What do you think is the significance of the FAR case? FAR 42.1503(g) currently says"

(g) Agencies shall use the past performance information in PPIRS that is within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), e.g., terminations for default or cause.

What do you think that means?

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Vern, I don't know what the significance of the FAR Case is other than to delete language that requires? limits? use of past performance information in PPIRS that is within six years of the completion of performance of construction or A-E contracts. I assume that currently the date of the evaluation must be within 6 years of completion. At any rate, we considered completion or even the date of the evaluation for a contract (that often took several years to perform after award) which is up to six years old to be of little value to us. It could involve designs and contract awards many years old.

As I said above, we limited consideration of past performance to "recent" projects, defined as projects that were underway or completed within 3 (or) 5 years of the date of the instant solicitation. The date of the evaluation itself was not relevant.

I don't know what the exact language is being considered for the FAR Case.

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And yes, I know that if the solicitation doesn't limit the period of consideration for past performance, if the proposer submits past performance information for a project older than what is in the Government's data base it (can?) (should?) (shall?) be considered. Depends upon the language in the solicitation.

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Looks to me like the government can request past performance information for any period, but shall use PPIRS information that is within three years. Two different sources of information, two different sets of rules.

Would you read "Agencies shall use the past performance information in PPIRS that is within three years..." to mean you cannot use PPIRS information over three years?

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No. An agency can use whatever information it wants, no matter how old, as long as it can show that such use is reasonable. That's the key. The issue will be: What bearing does, say, 10-year old information have on an assessment of future performance? In small scale construction, maybe it has no bearing. But it may be very pertinent in an acquisition for the the development of a new strategic bomber, a new nuclear attack submarine, or a new ICBM.

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