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Past Performance as an Eval Factor under FAR Subpart 8.4

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Topic of clarification: Does past performance as an evaluation factor have to be used at all, if using the procedures outlined in FAR Subpart 8.4 (either 8.405-1 or 8.405-2), regardless of dollar value? (Note: I am not asking whether or not it may be prudent to use dependent upon your requirement, merely its mandatory use as an evaluation factor under FAR Subpart 8.4.)

My Answer: No!

My Rationale: In researching the FAR, I am only aware of past performance as an evaluation factor being mandatory under negotiated competitive acquisitions expected to exceed the simplified acquisition threshold. (See FAR Subpart 15.304( c )(3)(i))

Furthermore, FAR Subpart 8.404(a) states in part, ?Parts 13 (except 13.303-2( c )(3)), 14, 15, and 19 (except for the requirement at 19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply Schedules contracts (but see 8.405-5)?.? FAR Subpart 8.405-1( c ) and (d) as well as 8.405-2(d) indicate that orders should be placed with the schedule contractor that can provide the supply or service that represents the best value. In addition, FAR Subpart 8.405-1( c )(3) indicates that past performance MAY be considered when determining best value, it does not indicate that it MUST. FAR Subpart 8.405-2 uses past performance as an example of an evaluation factor, but does not indicate that it MUST be used as an evaluation factor. Lastly, FAR 8.404(d) elaborates on the position of best value by stating: "By placing an order against a schedule using the procedures in 8.405, the ordering activity has concluded that the order represents the best value (as defined in FAR 2.101) and results in the lowest overall cost alternative (considering price, special features, administrative costs, etc.) to meet the Government's needs."

So, Is past performance as an evaluation factor mandatory, or non-mandatory when using the procedures found in FAR Subpart 8.4?

-Signed by GOVCO

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It's discretionary. See definition of "may" at FAR 2.101. I guess somebody is arguing with you about it?

I wouldn't necessarily classify it as "arguing," let's just say a philosophical misunderstanding. In all seriousness, this is more of a reassurance for me, as I knew this to be true. Either way, thanks for the clarification.

P.S. I know this is not the correct forum. However, on the same lines as this topic. I believe the use of past performance as an evaluation factor "may" also be used under a Part 13 acquistion, but its use is not "mandatory." Correct? (See FAR Subpart 13.106-1(a)(2); FAR Subpart 13.106-2(b )(1); and FAR Subpart 13.106-2( b )(3)).

Regards!

-Signed by GOVCO

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Past performance is not a mandatory factor under FAR Part 15 either.

Is that because of FAR Subpart 15.304( c )(3)(iii). If not, please elaborate more as now I am a little confused.

Reference:

The Government Contracts Reference Book: A Comprehensive Guide to the Language of Procurement, Third Edition, Softcover

Ralph C. Nash Jr., Karen R. O'Brien, Steven L. Schooner, Vernon J. Edwards; Page 421:

...FAR 15.304( c )(2) makes past performance a mandatory evaluation factor for negotiated competetive acquisitions expected to exceed $100,000...

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Is that because of FAR Subpart 15.304( c )(3)(iii). If not, please elaborate more as now I am a little confused.

That's right. The CO can waive the evaluation of past performance at will. FAR does not require higher-level approval. Thus, evaluation of past performance can hardly be called "mandatory."

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That's right. The CO can waive the evaluation of past performance at will. FAR does not require higher-level approval. Thus, evaluation of past performance can hardly be called "mandatory."

Sorry. I added that last portion of my previous post the same time you added your response. Ah-ha! See, it pays to read, and read, and seek additional guidance. Here, the customary practice is to include past performance as an evaluation factor as if it were mandatory. I obviously disagree. Thanks Vern and Don!

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However, on the same lines as this topic. I believe the use of past performance as an evaluation factor "may" also be used under a Part 13 acquistion, but its use is not "mandatory." Correct? (See FAR Subpart 13.106-1(a)(2); FAR Subpart 13.106-2(b )(1); and FAR Subpart 13.106-2( b )(3)).

Correct.

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The proposed rule currently open for public comments, FAR Case 2008-27, Federal Awardee Performance and Integrity Information System, may change this discussion:

3. Redesignate section 9.104-6 as section 9.104-7 and add a new section 9.104-6 to read as follows:

9.104-6 Federal Awardee Performance and Integrity Information System.

(a ) Before awarding a contract (including an order under FAR Subparts 8.4, 13.3 or 16.5) in excess of the simplified acquisition threshold, the contracting officer shall review the Federal Awardee Performance and Integrity Information System (FAPIIS), (available at ------------ ). (Website should provide information on how to gain access, passwords, etc.)

(b ) The contracting officer shall consider all the information in the FAPIIS and other past performance information when making a responsibility determination or past performance evaluation. Since the FAPIIS may contain information covering a five year period, some of that information may no longer be relevant to a determination of present responsibility, e.g., a prior administrative action such as debarment or suspension that has expired or otherwise been resolved.

(c ) If the contracting officer obtains relevant information from the FAPIIS regarding criminal, civil, or administrative proceedings in connection with the award or performance of a Government contract (including an order); terminations for default or cause; or determinations of non-responsibility because the contractor does not have a satisfactory performance record or a satisfactory record of integrity and business ethics, the contracting officer shall, unless

the contractor has already been debarred or suspended--

(1) Promptly request such additional information from the offeror as the offeror deems necessary in order to demonstrate the offeror's responsibility to the contracting officer (but see 9.405); and

(2) Notify, prior to proceeding with award, in accordance with agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official responsible for initiating debarment or suspension action, if the information appears appropriate for the official's consideration.

(d ) The contracting officer shall document the file for each contract (including orders) in excess of the simplified acquisition threshold to indicate the manner in which the information in the FAPIIS or past performance evaluation was considered in any responsibility determination or past performance evaluation, as well as the action that was taken as a result of the information. A contracting officer who makes a nonresponsibility determination is required to enter that information into the FAPIIS in accordance with 9.105-2(a)(3).

http://www.regulations.gov/search/Regs/con...ontentType=html

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There is a very big difference between considering past performance as an element of responsibility and using it as a source selection evaluation factor. A very big difference.

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The proposed rule currently open for public comments, FAR Case 2008-27, Federal Awardee Performance and Integrity Information System, may change this discussion:

How so? I don't see anything that would require the use of past performance as an evaluation factor.

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How so? I don't see anything that would require the use of past performance as an evaluation factor.

I agree that the proposed rule does not require that past performance shall be used as an evaluation factor, but that the proposed rule would require that past performance be considered in every acquisition greater than the SAT as part of the responsibility determination. This would require that past performance be considered in every acquisition (> SAT).

Though I take issue with the proposed language at 9.104-6(a ): "Before awarding a contract (including an order under FAR Subparts 8.4, 13.3 or 16.5)..." since a CO is not currently required to make a responsibilty determination for orders against Federal Supply Schedules or other IDIQ contracts.

There is a very big difference between considering past performance as an element of responsibility and using it as a source selection evaluation factor. A very big difference.

Agreed.

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I agree that the proposed rule does not require that past performance shall be used as an evaluation factor, but that the proposed rule would require that past performance be considered in every acquisition greater than the SAT as part of the responsibility determination. This would require that past performance be considered in every acquisition (> SAT).

Vbus,

Past performance is already required to be considered as part of a responsibility determination, regardless of dollar value. See FAR 9.104-1( c ):

To be determined responsible, a prospective contractor must?

[...]

( c ) Have a satisfactory performance record (see 9.104-3( b ) and 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;

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What would be some examples of why a CO would feel past performance would not be an appropriate evaluation factor for a particular acquisition? (Reference 15.304 ( c )(3)(iii))

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Vbus,

Past performance is already required to be considered as part of a responsibility determination, regardless of dollar value. See FAR 9.104-1( c ):

Don, of course, you are right. Though again, the proposed rule seems to be pushing the requirement that FSS orders and IDIQ orders be included, that were not required before.

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What would be some examples of why a CO would feel past performance would not be an appropriate evaluation factor for a particular acquisition? (Reference 15.304 ( c )(3)(iii))

If the LPTA source selection process were being used, for example. FAR 15.101-2( b )(1) recognizes this possibility:

The evaluation factors and significant subfactors that establish the requirements of acceptability shall be set forth in the solicitation. Solicitations shall specify that award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors. If the contracting officer documents the file pursuant to 15.304?(3)(iii), past performance need not be an evaluation factor in lowest price technically acceptable source selections. If the contracting officer elects to consider past performance as an evaluation factor, it shall be evaluated in accordance with 15.305. However, the comparative assessment in 15.305(a)(2)(i) does not apply. If the contracting officer determines that a small business? past performance is not acceptable, the matter shall be referred to the Small Business Administration for a Certificate of Competency determination, in accordance with the procedures contained in Subpart 19.6 and 15 U.S.C. 637( b )(7)).

Evaluating past performance when using LPTA is somewhat redundant, because you have to determine the acceptabily of the propsective contractor's past performance on a pass/fail basis when determining responsibility.

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If the LPTA source selection process were being used, for example. FAR 15.101-2( b )(1) recognizes this possibility:

Evaluating past performance when using LPTA is somewhat redundant, because you have to determine the acceptabily of the propsective contractor's past performance on a pass/fail basis when determining responsibility.

Okay.

What about under 8.405-2? I suppose since you still have to send the RFP, which includes the statement of work and evaluation criteria, your evaluation criteria would be something other than past performance.

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What about under 8.405-2? I suppose since you still have to send the RFP, which includes the statement of work and evaluation criteria, your evaluation criteria would be something other than past performance.

I don't have any specific examples, but I can envision the evaluation of past performance being a waste of time is some situations. For example, the agency may be intimately familiar with all of the possible sources of supply and know that all have performed well in the past. In such a case, the only discriminating factor could be price.

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I don't have any specific examples, but I can envision the evaluation of past performance being a waste of time is some situations. For example, the agency may be intimately familiar with all of the possible sources of supply and know that all have performed well in the past. In such a case, the only discriminating factor could be price.

...like the requirement I have now. Oops, did I say that. Why must we make things so complicated. Simplify people. Simplify! Thanks Don!

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Guest carl r culham

GOVCO - You changed gears back to FAR Part 8.4 Federal Supply Schedules in your last couple of posts. Noting this I just wanted to add one clarification and provide an example.

Clarification - Remember under FAR 8.4 you are going to do an RFQ not an RFP. You may know this and the RFP reference was just a slip of the fingers but I do want to point it out for others that may not be well informed about use of FSS.

Example - Assume the need is over the micropurchase authority, under the maximum order threshold and not a BPA. You review the Schedule contractors and pick three that you feel are capable in performing the work. In doing your research you also obtain information about their firm that makes you comfortable that a past perfomrance evaluation criteria is not needed. You then issue the RFQ to the three and do not include past performance as an evaluation factor.

This example is close to Don's . The point of my example is to note that with information available at GSA through the FSS program, the firms' websites and other research that you are lead to by this information could bring you to the conclusion that past performance evalaution is not necessary.

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DODers, note that the example offered by Carl is not apposite to DOD if the requirement >$100k. See DFARS 208.405-70 and PGI 208.405-70.

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GOVCO - You changed gears back to FAR Part 8.4 Federal Supply Schedules in your last couple of posts. Noting this I just wanted to add one clarification and provide an example.

Clarification - Remember under FAR 8.4 you are going to do an RFQ not an RFP. You may know this and the RFP reference was just a slip of the fingers but I do want to point it out for others that may not be well informed about use of FSS.

Example - Assume the need is over the micropurchase authority, under the maximum order threshold and not a BPA. You review the Schedule contractors and pick three that you feel are capable in performing the work. In doing your research you also obtain information about their firm that makes you comfortable that a past perfomrance evaluation criteria is not needed. You then issue the RFQ to the three and do not include past performance as an evaluation factor.

This example is close to Don's . The point of my example is to note that with information available at GSA through the FSS program, the firms' websites and other research that you are lead to by this information could bring you to the conclusion that past performance evalaution is not necessary.

I did go back to my initial discussion regarding 8.4, just to wrap up my initial conversation. Sorry for the hard transition; or lack thereof. And thank you for catching my typo, as I did mean to write RFQ, but my brain didn't relay the message to my fingers. Also, thanks for your example!

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DODers, note that the example offered by Carl is not apposite to DOD if the requirement >$100k. See DFARS 208.405-70 and PGI 208.405-70.

For those of us whose SAT verbal scores did not break 500:

apposite: highly pertinent or appropriate.

Thank God for the math section.

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