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Good Day All:

For procurements performed under FAR Part 8 and FAR PART 13, is there a requirement to have past performance as an evaluation factor?  FAR Part 15.3 states the conditions under which is a requirement to have past performance as an evaluation factor.  However, FAR Part 13 and 8 do not require compliance with FAR part 15.

Can someone provide an explanation of how they handle these procurements?  I would not require past performance as an evaluation factor, however past performance is supposed to be evaluated in every procurement?

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ContractSpecialist TJohn,

Past performance evaluations and responsibility determinations (including the requirement for a satisfactory performance record)  are separate from one another and serve different functions.  Reference FAR 15.305(a)(2)(i) where it reads (emphasis added below):

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(i) Past performance information is one indicator of an offeror’s ability to perform the contract successfully. The currency and relevance of the information, source of the information, context of the data, and general trends in contractor’s performance shall be considered. This comparative assessment of past performance information is separate from the responsibility determination required under Subpart 9.1

Past performance evaluations seek to evaluate "the offeror's ability to perform the contract successfully" which is a narrower scope than the satisfactory performance record portion of a responsibility determination which concerns itself with the prospective contractor's entire performance record.  As part of a past performance evaluation, one would assess the recency and relevancy of the past performance information, factors which are not evaluated as part of a responsibility determination (reference FAR 9.104-3(b)).  For example, let's say you're contracting for custodial services - an offeror could presumably submit past performance information on all their custodial contracts and be selected as the prospective awardee/best value because they performed well on the custodial contracts reviewed; however, if the prospective contractor has been seriously deficient in contract performance on other, non-custodial government contracts (for example, grounds maintenance contracts, IT support, etc.), the contractor could still be determined non-responsible despite the acceptable past performance evaluation.

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11 hours ago, ContractSpecialistTJohn said:

For procurements performed under FAR Part 8 and FAR PART 13, is there a requirement to have past performance as an evaluation factor?

A quick -- control 'f' -- search of FAR Part 8 shows 'past performance' used five times - none of which require its use as an evaluation factor.

The same search of FAR Part 13 returned eight hits, again, none of which require its use as an evaluation factor.

FAR Part 9 does have additional requirements regarding checks of past performance information, but not as an evaluation factor. Note that FAR Part 9 highlights some areas with the following notice: 

"Per Court Injunction dated 24 Oct 2016 and OMB memo dated 25 Oct 2016 do not implement the following until further direction."

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17 hours ago, ContractSpecialistTJohn said:

Good Day All:

For procurements performed under FAR Part 8 and FAR PART 13, is there a requirement to have past performance as an evaluation factor?  FAR Part 15.3 states the conditions under which is a requirement to have past performance as an evaluation factor.  However, FAR Part 13 and 8 do not require compliance with FAR part 15.

Can someone provide an explanation of how they handle these procurements?  I would not require past performance as an evaluation factor, however past performance is supposed to be evaluated in every procurement?

When you refer to FAR part 8, do you mean FAR subpart 8.4 (Federal Supply Schedules)? If so, then nothing in that subpart would require the use of past performance as an evaluation factor. See FAR 8.405-1(f). FAR part 13 does not require the use of past performance as an evaluation factor, either. See FAR 13.106-1(a)(2). However, if you are in DoD, then you would be required to evaluate each supplier's past performance in competitive acquisitions for supplies. See DFARS 213.106-2(b)(i)(B).

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16 hours ago, Matthew Fleharty said:

ContractSpecialist TJohn,

Past performance evaluations and responsibility determinations (including the requirement for a satisfactory performance record)  are separate from one another and serve different functions.  Reference FAR 15.305(a)(2)(i) where it reads (emphasis added below):

Past performance evaluations seek to evaluate "the offeror's ability to perform the contract successfully" which is a narrower scope than the satisfactory performance record portion of a responsibility determination which concerns itself with the prospective contractor's entire performance record.  As part of a past performance evaluation, one would assess the recency and relevancy of the past performance information, factors which are not evaluated as part of a responsibility determination (reference FAR 9.104-3(b)).  For example, let's say you're contracting for custodial services - an offeror could presumably submit past performance information on all their custodial contracts and be selected as the prospective awardee/best value because they performed well on the custodial contracts reviewed; however, if the prospective contractor has been seriously deficient in contract performance on other, non-custodial government contracts (for example, grounds maintenance contracts, IT support, etc.), the contractor could be found non-responsible despite the acceptable past performance evaluation.

If I am doing an LPTA procurement under FAR 13 or 8.4 FAR 15.101-2 states that a COC is required for small business.  If we are doing a FAR 8.4 procurement or FAR PART `13 procurement, is a COC required since FAR Part 15 does not apply for 8.404 and is not mandatory13.106-2(b)(1)

?  

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20 minutes ago, ContractSpecialistTJohn said:

If I am doing an LPTA procurement under FAR 13 or 8.4 FAR 15.101-2 states that a COC is required for small business.  If we are doing a FAR 8.4 procurement or FAR PART `13 procurement, is a COC required since FAR Part 15 does not apply for 8.404 and is not mandatory13.106-2(b)(1)

?  

ContractSpecialistTJohn,

Certificates of Competency are not unique to FAR Part 15 (reference FAR 9.104-3(d)(1)) - read FAR Subpart 19.6 and see if that answers your question with respect to your particular situation.

I would also recommend you touch base with a knowledgeable Contracting Officer in your organization to go over the structure of the FAR, particularly the Scope and Applicability portions, so you can better understand when a requirement in a particular FAR Part is applicable to a contract action and when it is not.  Also, don't stop short when reading the FAR - twice now, sections you've cited have referred to another Part of the FAR which contained the answer, yet it seemed you stopped short of seeking it - when FAR 15.101-2 cites "Subpart 19.6" or 15.3 cites "Subpart 9.1" go read them and you'll be able to find the information that answers your question (or, if not, at least adds more context so you can ask a better question).

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3 minutes ago, Matthew Fleharty said:

ContractSpecialistTJohn,

Certificates of Competency are not unique to FAR Part 15 (reference FAR 9.104-3(d)(1)) - read FAR Subpart 19.6 and see if that answers your question with respect to your particular situation.

I would also recommend you touch base with a knowledgeable Contracting Officer in your organization to go over the structure of the FAR, particularly the Scope and Applicability portions, so you can better understand when a requirement in a particular FAR Part is applicable to a contract action and when it is not.  Also, don't stop short when reading the FAR - twice now, sections you've cited have referred to another Part of the FAR which contained the answer, yet it seemed you stopped short of seeking it - when FAR 15.101-2 cites "Subpart 19.6" or 15.3 cites "Subpart 9.1" go read them and you'll be able to find the information that answers your question (or, if not, at least adds more context so you can ask a better question).

thanks, but I think the question that I asked was past more on past performance evaluation and not responsibility.  I'll take another look.  Thanks for taking the time to answer.

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Guest Vern Edwards
On 11/15/2016 at 0:22 PM, ContractSpecialistTJohn said:

I think the question that I asked was past more on past performance evaluation and not responsibility.  I'll take another look.  Thanks for taking the time to answer.

ContractSpecialistTJohn:

I'm going to take a shot at answering your question(s).

When selecting a contractor, past performance is used in one of two ways.

(1) When determining responsibility, past performance is considered on a pass or fail basis to determine whether a prospective contractor's record indicates that it can perform successfully. When used in this way, a firm's past performance is not used as a basis for comparing it to other firms. What matters is whether the firm's past performance is good enough, pass or fail, not whether it's excellent, good, fair, or poor. Past performance is a qualifying consideration, not a competitive consideration.

(2) When used as a competitive evaluation factor under FAR Part 15, the past performance of each competitor is compared to the past performance of the other competitors in order to rank them from best to worst. In this case, it matters whether a firm's past performance is, for example, excellent, good, fair, or poor.

Do you understand that difference?

Past performance is not strictly required to be used as an comparative evaluation factor, even under FAR Part 15. See FAR 15.304(c)(3)(iii). But if it's not, it must be considered as a responsibility factor in accordance with FAR 9.104-1(c). A prospective contractor must always be determined to be responsible or nonresponsible, and past performance must always be considered for that purpose. See FAR 9.103(b) and 9.104-1(c). However, if past performance is used as a comparative evaluation factor in accordance with FAR 15.304, the results of that evaluation can be used to make the responsibility determination, and so no separate consideration of past performance is necessary to determine responsibility. The comparative evaluation can do double duty. Do you understand?

But when placing an order against a GSA FSS contract in accordance with FAR Subpart 8.4, the ordering agency does not have to make a determination of responsibility or nonresponsibility, because GSA already did it. See Paragon Systems, Inc., GAO Decision B-299548.2, 2007 CPD ¶ 178, Sep. 10, 2007:

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We have previously determined that there is no requirement that an ordering agency perform a responsibility determination when, as here, placing a task or delivery order under an FSS contract; the initial responsibility determinationmade by GSA in connection with the award of the underlying FSS contract satisfies the requirement for a responsibility determination regarding that offeror, and there is no requirement that an ordering agency perform additional responsibility determinations when placing orders under that contract. Advanced Tech. Sys., Inc., B–296493.6. Oct. 6, 2006, 2006 CPD para. 151 at 5–6.

As you have already been told, past performance is an optional comparative evaluation factor when ordering against a GSA FSS contract. 

Whenever past performance is considered on a pass or fail basis, and a small business offeror who would otherwise win a competition is found to have failed that assessment, then the CO must handle it as if it were a determination of nonresponsibility and refer the matter to the SBA for certificate of competency consideration in accordance with FAR 19.602-1. See also FAR 15.101-2(b)(1) and DA Defense Logistics AQ, GAO Decision B-411153.3, 20115 CPD ¶ 358, Dec. 2, 2015:

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An agency may use traditional responsibility factors, such as past performance, as technical evaluation factors where, as here, a comparative evaluation of those areas is to be performed. Source Diversified, Inc., B–403437.2, Dec. 16, 2010, 2010 CPD ¶297 at 8 n.11; Zolon Tech, Inc., B–299904.2, Sept. 18, 2007, 2007 CPD ¶183 at 8; T. Head & Co., Inc., B–275783, Mar. 27, 1997, 97–1 CPD ¶169 at 3–4. No SBA referral is required where a small business offeror's technically-acceptable proposal is not selected for award because another offeror's proposal is evaluated as superior under a comparative analysis or because of a cost/technical tradeoff analysis. Zolon Tech, Inc., supra; CMC & Maint., Inc., B–292081, May 19, 2003, 2003 CPD ¶107 at 4.

See also FitNet Purchasing Alliance, GAO Decision B-410263, 2014 CPD ¶ 344, Nov. 26, 2013:

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Our Office has long held that pass/fail evaluations of capability issues, such as past performance, are tantamount to responsibility determinations, with the result that a rating of “unacceptable” in these areas is the same as a determination of nonresponsibility. See, e.g., Phil Howry Co., B–291402.3, B–291402.4, Feb. 6, 2003, 2003 CPD ¶33 at 6. Consistent with this premise, in the context of a lowest-priced technically acceptable evaluation scheme, where the contracting officer determines that a small business' pastperformance is not acceptable, “the matter shall be referred to the Small Business Administration for a Certificate of Competency determination.” FAR §15.101–2(b)(1).

The above apply to simplified acquisitions as well as to Part 15 acquisitions.

Do you understand what I wrote? Does it answer your questions?

 

 

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