ASA Prepares Comments to DOD’s Proposed Rule on Subcontractor’s Past Performance Information

ASA and AGC are preparing comments in response to the Department of Defense’s proposal to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2019 that establishes a requirement for use of the best available information regarding past performance of subcontractors and joint venture partners when awarding DoD contracts for construction and architect-engineer services.  To make that determination, the Department of Defense will be developing policies such as:

• Required performance evaluations, as part of a government-wide evaluation reporting tool, for first-tier subcontractors on construction and architect-engineer contracts performing a portion of the contract valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, or 20 percent of the value of the prime contract, whichever is higher, provided—
  • the information included in rating the subcontractor is not inconsistent with the information included in the rating for the prime contractor;
  • the subcontractor evaluation is conducted consistent with the provisions of section 42.15 of the Federal Acquisition Regulation;
  • negative evaluations of a subcontractor in no way obviate the prime contractor’s responsibility for successful completion of the contract and management of its subcontractors; and
  • that in the judgment of the contracting officer, the overall execution of the work is impacted by the performance of the subcontractor or subcontractors.
• Required performance evaluations, as part of a government-wide evaluation reporting tool, of individual partners of joint venture-awarded construction and architect-engineer contracts valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, to ensure that past performance on joint venture projects is considered in future awards to individual joint venture partners, provided—
  • at a minimum, the rating for joint ventures includes an identification that allows the evaluation to be retrieved for each partner of the joint venture;
  • each partner, through the joint venture, is given the same opportunity to submit comments, rebutting statements, or additional information, consistent with the provisions of section 42.15 of the Federal Acquisition Regulation; and
  • the rating clearly identifies the responsibilities of joint venture partners for discrete elements of the work where the partners are not jointly and severally responsible for the project.
• Processes to request exceptions from the annual evaluation requirement under section 42.1502(a) of the Federal Acquisition Regulation for construction and architect-engineer contracts where submission of the annual evaluations would not provide the best representation of the performance of a contractor, including subcontractors and joint venture partners, including—
  • where no severable element of the work has been completed
  • where the contracting officer determines that—
  • an insubstantial portion of the contract work has been completed in the preceding year; and
  • the lack of performance is at no fault to the contractor; or
  • where the contracting officer determines that there is an issue in dispute which, until resolved, would likely cause the annual rating to inaccurately reflect the past performance of the contractor.

Comments are due July 19, 2021 to be considered in the formation of a final rule.