Defense Federal Acquisition Regulation Supplement: Past Performance of Subcontractors and Joint Venture Partners (DFARS Case 2018-D055), 27358-27363 [2021-10582]
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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
when a requested and required
debriefing is held on the date offered (31
U.S.C. 3553).
233.171
[Amended]
9. Amend section 233.171 by
removing ‘‘Government Accountability
Office’’ and adding ‘‘GAO’’ in its place.
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
10. Add section 252.215–70XX to read
as follows:
■
252.215–70XX Notification to Offerors—
Postaward Debriefings.
As prescribed in 215.570, use the
following provision:
Notification to Offerors—Postaward
Debriefings (DATE)
(a) Definition. As used in this provision—
Nontraditional defense contractor means
an entity that is not currently performing and
has not performed any contract or
subcontract for DoD that is subject to full
coverage under the cost accounting standards
prescribed pursuant to 41 U.S.C. 1502 and
the regulations implementing such section,
for at least the 1-year period preceding the
solicitation of sources by DoD for the
procurement (10 U.S.C. 2302(9)).
(b) Postaward debriefing. (1) Upon timely
request, the Government will provide a
written or oral postaward debriefing for
contracts valued at $10 million or higher to
the Offeror, while protecting the confidential
and proprietary information of other offerors.
The request is considered timely if requested
within 3 days of notification of contract
award.
(2) When required, the minimum
postaward debriefing information will
include the following:
(i) For contracts in excess of $10 million
and not in excess of $100 million with a
small business or nontraditional defense
contractor, an option for the small business
or nontraditional defense contractor to
request disclosure of the agency’s written
source selection decision document, redacted
to protect the confidential and proprietary
information of other offerors for the contract
award.
(ii) For contracts in excess of $100 million,
disclosure of the agency’s written source
selection decision document, redacted to
protect the confidential and proprietary
information of other offerors for the contract
award.
(3) If a postaward debriefing is provided—
(i) The debriefed Offeror may submit
additional written questions related to the
required and provided debriefing within 2
business days after receiving the debriefing;
the agency will respond in writing to timely
submitted additional questions within 5
business days after receipt; and
(ii) The postaward debriefing will not be
considered to be concluded until—
(A) After the second business day after the
agency delivered the debriefing, if no
additional written questions were submitted
by the debriefed Offeror, or
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(B) The agency delivers its written
responses to timely submitted additional
questions.
(c) Contract performance. The Government
may suspend performance of or terminate the
awarded contract upon notice from the
Government Accountability Office of a
protest filed within the time periods listed in
paragraphs (c)(1) through (4) of this
provision, whichever is later:
(1) Within 10 days after the date of contract
award.
(2) Within 5 days after the offered date for
a debriefing to an unsuccessful offeror that is
timely requested, and when requested is
required, if the unsuccessful offeror submits
no additional questions related to the
debriefing.
(3) Within 5 days after the offered date for
a debriefing to an unsuccessful offeror that is
timely requested, and when requested is
required, if the debriefing date offered is not
accepted.
(4) Within 5 days after the Government
delivers its written response to additional
questions timely submitted by the
unsuccessful offeror, when a requested and
required debriefing is held on the date
offered.
paragraphs (b)(1) through (4) of this clause,
whichever is later:
(1) Within 10 days after the date of
issuance of a task order or delivery order,
where the value of the order exceeds $25
million (10 U.S.C. 2304c(e)).
(2) Within 5 days after the offered date for
a debriefing to an unsuccessful contractor
that is timely requested, and when requested
is required, if the unsuccessful contractor
submits no additional questions related to
the debriefing.
(3) Within 5 days after the offered date for
a debriefing to an unsuccessful contractor
that is timely requested, and when requested
is required, if the debriefing date offered is
not accepted.
(4) Within 5 days after the Government
delivers its written response to additional
questions timely submitted by the
unsuccessful contractor, when a requested
and required debriefing is held on the date
offered (31 U.S.C. 3553).
(End of provision)
■ 11. Add section 252.216–70YY to read
as follows:
DEPARTMENT OF DEFENSE
(End of clause)
[FR Doc. 2021–10581 Filed 5–19–21; 8:45 am]
BILLING CODE 5001–06–P
Defense Acquisition Regulations
System
252.216–70YY Postaward Debriefings for
Task Orders and Delivery Orders.
48 CFR Parts 215, 236, 242, and 252
As prescribed at 216.506(S–71), use
the following clause:
[Docket DARS–2020–0040]
Postaward Debriefings for Task Orders and
Delivery Orders (DATE)
(a) Postaward debriefing. (1) Upon timely
request, the Government will provide a
written or oral postaward debriefing for task
orders or delivery orders valued at $10
million or higher to the Contractor, regardless
of whether the Contractor’s offer for the order
was successful or unsuccessful, while
protecting the confidential and proprietary
information of other contractors. The request
is considered timely if requested within 3
days of notification of task order or delivery
order award.
(2) If a postaward debriefing is provided—
(i) The debriefed Contractor may submit
additional written questions related to the
required and provided debriefing within 2
business days after receiving the debriefing;
the agency will respond in writing to timely
submitted additional questions within 5
business days after receipt; and
(ii) The postaward debriefing will not be
considered to be concluded until—
(A) After the second business day after the
agency delivered the debriefing, if no
additional written questions were submitted
by the debriefed Contractor; or
(B) The agency delivers its written
responses to timely submitted additional
questions.
(b) Task order or delivery order
performance. The Government may suspend
performance of or terminate the awarded task
order or delivery order, upon notice from the
Government Accountability Office of a
protest filed within the time periods listed in
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RIN 0750–AK16
Defense Federal Acquisition
Regulation Supplement: Past
Performance of Subcontractors and
Joint Venture Partners (DFARS Case
2018–D055)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing 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.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before July
19, 2021, to be considered in the
formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2018–D055,
using any of the following methods:
Æ Federal eRulemaking Portal:
https://www.regulations.gov. Search for
SUMMARY:
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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
‘‘DFARS Case 2018–D055.’’ Select
‘‘Comment Now’’ and follow the
instructions provided to submit a
comment. Please ‘‘DFARS Case 2018–
D055’’ on any attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2018–D055 in the subject
line of the message.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Barbara
Trujillo, OUSD(A&S)DPC/DARS, Room
3B938, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting (except allow 30 days for
posting of comments submitted by
mail).
Ms.
Barbara Trujillo, telephone 571–372–
6102.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the
DFARS to implement section 823 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2019 (Pub.
L. 115–232). Section 823 requires
performance evaluations in accordance
with specified conditions for individual
partners of joint ventures for
construction and architect-engineer
(A&E) services contracts with an
estimated value in accordance with the
threshold set forth in FAR 42.1502(e),
currently $750,000; and for first-tier
subcontractors performing a portion of a
construction or A&E services contract
exceeding the threshold set forth in FAR
42.1502(e) or 20 percent of the value of
the prime contract, whichever is higher.
An exception may be granted when
submission of annual past performance
evaluations would not provide the best
representation of the contractor’s
performance, including subcontractors
and joint venture partners.
II. Discussion and Analysis
The following changes to the DFARS
are proposed to implement section 823
of the NDAA for FY 2019:
DFARS 242.1501–70 defines ‘‘first-tier
subcontractor’’ and ‘‘subcontractor’’ as
those terms are applicable to subpart
242.15. Requirements for past
performance evaluations to be
performed for first-tier subcontractors
and partners of a joint venture are
provided at DFARS 242.1502 paragraph
(e) for construction contracts, and
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paragraph (f) for A&E services contracts.
Specifically, past performance
evaluations are required for first-tier
subcontractors performing a portion of
construction or A&E services contracts
or orders that are valued at or above the
threshold in FAR 42.1502(e) or 20
percent of the value of the prime
contract, whichever is higher. Past
performance evaluations are required
for individual partners of a joint venture
awarded a construction or A&E services
contract or order valued at or above the
threshold in FAR 42.1502(e).
When acquiring construction or
architect-engineer services, contracting
officers will consider, as part of the past
performance evaluation, an offeror’s
past performance as a first-tier
subcontractor or individual partner of a
joint venture under construction and/or
architect-engineer services contracts. In
reviewing first-tier subcontractor and
joint venture partner past performance
evaluations, contracting officers, in
coordination with the cognizant
requiring office, will work to ensure the
following: Consistency between prime
and first-tier subcontractor rating
information; successful completion of
applicable contracts; the same
opportunity for each joint venture
partner to submit comments, rebutting
statements, or additional information
consistent with FAR subpart 42.15; and
clear identification, in the rating, of the
responsibilities of each partner for
discrete elements of the work where the
partners are not jointly and severally
responsible for the project.
DFARS 242.1502, paragraphs (e)(iv)
and (f)(iv) provide guidance to
contracting officers for providing an
exception when the submission of
annual past performance ratings would
not provide the best representation of
the performance of a prime contractor,
subcontractor, or joint venture partners.
DFARS 242.1504–70(a) adds a
prescription for a new DFARS
solicitation provision 252.242–70XX,
Identification of Joint Venture Partners
for Past Performance—Construction and
Architect-Engineer Services, to convey
the requirement to identify, as part of an
offer, all partners in the joint venture.
This provision is required for
construction and A&E services
solicitations that include the clause at
DFARS 252.242–70YY. The provision
requires all joint venture partners to be
registered in the System for Award
Management (SAM) in accordance with
FAR 4.11 and FAR provision 52.204–7,
System for Award Management, prior to
submission of an offer.
DFARS 242.1504–70(b)(1) and (b)(2),
respectively, add new prescriptions for
the use of two new DFARS contract
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27359
clauses: 252.242–70YY, Past
Performance of Joint Venture Partners—
Construction and Architect-Engineer
Services; and 252.242–70ZZ, Past
Performance of Subcontractors—
Construction and Architect-Engineer
Services. The clause at 252.242–70YY
informs the contractor that past
performance evaluations are required
for joint ventures awarded a
construction or A&E services contract
exceeding the threshold set forth in FAR
42.1502(e) (currently $750,000). DFARS
clause 252.242–70ZZ instructs
contractors to prepare past performance
evaluations for first-tier subcontractors
performing a portion of a construction
or an A&E services contract with an
estimated value in accordance with the
thresholds set forth in FAR 42.1502(e),
and 242.1502(e)(i) or 242.1502(f)(i), or
20 percent of the value of the prime
contract, whichever is higher. In
addition, the clause requires contractors
to provide the legal business name, the
unique entity identifier, and
Commercial and Government Entity
(CAGE) code of each first-tier
subcontractor under the contract as a
part of its offer or as new subcontracts
are issued during performance.
New text is added to DFARS
215.305(a)(2)(C) advising contracting
officers to consider past performance
information on first-tier subcontractors
and joint venture partners in source
selections for construction and A&E
services contracts.
The rule provides cross-references to
the policy and requirements of DFARS
242.1502(e) at other applicable subparts
for the DFARS.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
To implement section 823 of the
NDAA for FY 2019, this proposed rule
adds one new solicitation provision and
two new contract clauses.
The new solicitation provision is
252.242–70XX, Identification of Joint
Venture Partners for Past Performance—
Construction and Architect-Engineer
Services. This provision is used to
convey the identification requirements
to joint venture partners.
The two new clauses are 252.242–
70YY, Past Performance of Joint Venture
Partners—Construction and ArchitectEngineer Services; and 252.242–70ZZ,
Past Performance of Subcontractors—
Construction and Architect-Engineer
Services. The clauses inform the
contractor that past performance
evaluations are required for partners in
a joint venture awarded a construction
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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
or A&E services contract exceeding the
threshold set forth in FAR 42.1502(e)
(currently $750,000), and for first-tier
subcontractors performing a portion of a
construction or an A&E services contract
with an estimated value in accordance
with the threshold set forth in FAR
42.1502(e) or 20 percent of the value of
the prime contract, whichever is higher.
DoD is not proposing to apply the
requirements of section 823 to contracts
at or below the simplified acquisition
threshold. Section 823 requirements
will not apply to the acquisition of
commercial items, including
commercially available off-the-shelf
items.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. This rule is not
anticipated to be a major rule under 5
U.S.C. 804.
VI. Regulatory Flexibility Act
This proposed rule may have a
significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.
Therefore, an initial regulatory
flexibility analysis has been performed
and is summarized as follows:
DoD is proposing to amend the
Defense Federal Acquisition Regulation
Supplement (DFARS) to implement
section 823 of the National Defense
Authorization Act (NDAA) for Fiscal
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Year (FY) 2019. Section 823 requires
performance evaluations in accordance
with specified conditions for individual
partners of joint ventures awarded
construction or architect-engineer (A&E)
services contracts exceeding the
threshold set forth in FAR 42.1502(e)
(currently $750,000), and for first-tier
subcontractors performing a portion of a
construction or A&E services contract
with an estimated value in accordance
with the threshold set forth in FAR
42.1502(e) or 20 percent of the value of
the prime contract, whichever is higher.
An exception may be granted when
submission of annual past performance
evaluations would not provide the best
representation of the contractor’s
performance, including subcontractors
and joint venture partners.
The objective of this proposed rule is
to implement the statutory changes to
require performance evaluations for
first-tier subcontractors and individual
partners of joint ventures for
construction and A&E services
contracts. An exception may apply
when submission of annual evaluations
would not provide the best
representation of the contractor’s
performance, including subcontractors
and joint venture partners.
This rule is expected to impact small
entities performing as prime contractors,
first-tier subcontractors, or partners in
joint ventures awarded construction or
A&E services contracts or orders
exceeding $750,000. According to data
obtained from the Federal Procurement
Data System for fiscal years 2016
through 2018, an average of 490 small
entities received DoD contracts, task
orders, or delivery orders for
construction and A&E services
exceeding $750,000. Those small
entities would need to provide
performance evaluations of their firsttier subcontractors.
Approximately 822 contracts, task
orders, and delivery orders over
$750,000 were awarded each year for
construction and A&E services. Each of
those awards is estimated to have two
to four subcontracts, for a total of 2,121
subcontracts that would require
performance evaluations. DoD estimates
that approximately 1,208 of those
subcontracts were awarded to small
entities. These small entities would
receive a performance evaluation as a
first-tier subcontractor.
DoD estimates that approximately 112
joint ventures per year were awarded
contracts, task orders, or delivery orders
for construction and A&E services. DoD
further estimates that approximately
half (56) of those joint ventures include
at least one small entity as a partner in
the joint venture. Those small entities
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would receive a performance evaluation
as a partner in the joint venture.
This proposed rule does include new
reporting, and other compliance
requirements for small businesses.
Small business prime contractors will
be required to prepare past performance
evaluations for their first-tier
subcontractors described in DFARS
242.1502(e)(i) and (f)(i). Small
businesses that are first-tier
subcontractors and small business
partners in joint ventures described in
DFARS 242.1502(e)(i) and (f)(i) will be
given the opportunity to submit
comments, rebutting statements, or
additional information in response to
past performance evaluations. There are
no associated recordkeeping
requirements. Accordingly, DoD
estimates that it takes approximately
one hour at an hourly rate of $56.76 for
a contractor representative to draft,
review, comment, accomplish senior
level concurrence, and return past
performance evaluations for: (1) Firsttier subcontractors, and (2) joint
ventures.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no known significant
alternative approaches to the proposed
rule that would meet the statutory
requirements.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C 610 (DFARS Case 2018–D055), in
correspondence.
VII. Paperwork Reduction Act
The rule contains information
collection requirements that require the
approval of the Office of Management
and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35).
This rule contains information
collection requirements in addition to
those at FAR 42.15, under OMB Control
Number 9000–0142 for prime contractor
past performance evaluations. This rule
adds a new DoD information collection
requirement that requires the approval
of the Office of Management and Budget
under the Paperwork Reduction Act (44
U.S.C. chapter 35). Accordingly, DoD
has submitted a request for approval of
a new information collection
requirement concerning a DFARS
solicitation provision at 252.242–70XX,
Identification of Joint Venture Partners
for Past Performance–Construction and
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Architect-Engineer Services; and
contract clauses at 252.242–70YY, Past
Performance of Joint Venture Partners—
Construction and Architect-Engineer
Services; and 252.242–70ZZ, Past
Performance of Subcontractors—
Construction and Architect-Engineer
Services.
A. Public reporting burden for this
collection of information is estimated to
average 1.1 hours per response,
including the time for reviewing
instructions, and completing and
reviewing the collection of information.
The annual reporting burden is
estimated as follows:
(1) 252.242–70XX, Identification of Joint
Venture Partners for Past Performance—
Construction and Architect-Engineer
Services
Respondents: 112.
Responses per respondent: 1.
Total annual responses: 112.
Hours per response: 0.5.
Total response burden hours: 56.
(2) 252.242–70YY, Past Performance of
Joint Venture Partners—Construction
and Architect-Engineer Services
Respondents: 336.
Responses per respondent: 1.
Total annual responses: 336.
Hours per response: 1.
Total response burden hours: 336.
List of Subjects in 48 CFR Parts 215,
236, 242, and 252
(3) Past Performance Evaluations of
First-Tier Subcontractors Under
252.242–70ZZ, Past Performance of
Subcontractors—Construction and
Architect-Engineer Services
Government procurement.
Jennifer D. Johnson,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Respondents: 2,943.
Responses per respondent: 1.
Total annual responses: 2,943.
Hours per response: 1.
Total response burden hours: 2,943.
(4) Information on Newly Awarded
First-Tier Subcontracts Under 252.242–
70ZZ, Past Performance of
Subcontractors—Construction and
Architect-Engineer Services
Respondents: 82.
Responses per respondent: 1.
Total annual responses: 82.
Hours per response: 0.5.
Total response Burden Hours: 41.
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Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 215—CONTRACTING BY
NEGOTIATION
2. Amend section 215.305 by adding
paragraph (a)(2)(C) to read as follows:
215.305
Written comments and
recommendations on the proposed
information collection, including
suggestions for reducing this burden,
should be sent to Ms. Susan Minson at
the Office of Management and Budget,
Desk Officer for DoD, Room 10236, New
Executive Office Building, Washington,
DC 20503, or email Susan_M_Minson@
16:57 May 19, 2021
Therefore, 48 CFR parts 215, 236, 242,
and 252 are proposed to be amended as
follows:
■ 1. The authority citation for 48 CFR
parts 215, 236, 242, and 252 continues
to read as follows:
■
B. Request for Comments Regarding
Paperwork Burden
VerDate Sep<11>2014
omb.eop.gov, with a copy to the Defense
Acquisition Regulations System, Attn:
Ms. Barbara Trujillo, OUSD (A&S)DPC/
DARS, Room 3B938, 3060 Defense
Pentagon, Washington, DC 20301–3060.
Comments can be received from 30 to 60
days after the date of this notice, but
comments to OMB will be most useful
if received by OMB within 30 days after
the date of this notice.
Public comments are particularly
invited on: Whether this collection of
information is necessary for the proper
performance of functions of the DFARS,
and will have practical utility; whether
our estimate of the public burden of this
collection of information is accurate,
and based on valid assumptions and
methodology; ways to enhance the
quality, utility, and clarity of the
information to be collected; and ways in
which we can minimize the burden of
the collection of information on those
who are to respond, through the use of
appropriate technological collection
techniques or other forms of information
technology.
To obtain a copy of the supporting
statement and associated collection
instruments, please email osd.dfars@
mail.mil. Include DFARS Case 2018–
D055 in the subject line of the message.
Proposal evaluation.
(a)(2) * * *
(C) In accordance with section 823 of
the National Defense Authorization Act
for Fiscal Year 2019 (Pub. L. 115–232),
when acquiring construction or
architect-engineer services, contracting
officers shall consider an offeror’s past
performance as a first-tier subcontractor
or individual partner of a joint venture
under construction and/or architectengineer services contracts as part of the
evaluation of past performance.
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PART 236—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
3. Add section 236.201 to subpart
236.2 to read as follows:
■
236.201 Evaluation of contractor
performance.
See 242.1502(e) for additional
requirements on past performance
evaluations for first-tier subcontractors
and joint venture partners for
construction contracts (section 823 of
the National Defense Authorization Act
for Fiscal Year 2019 (Pub. L. 115–232)).
■ 4. Amend section 236.570 by adding
paragraph (f) to read as follows:
236.570 Additional provisions and
clauses.
*
*
*
*
*
(f) See 242.1504–70 for the additional
provision and clauses required for
construction contracts with an
estimated value at or above the
thresholds set forth in FAR 42.1502(e)
and 242.1502(e)(i).
■ 5. Revise section 236.604 to read as
follows:
236.604
Performance evaluation.
(1) Prepare a separate performance
evaluation after actual construction of
the project. Ordinarily, the evaluating
official should be the person most
familiar with the architect-engineer
contractor’s performance.
(2) See 242.1502(f) for additional
requirements on past performance
evaluations for first-tier subcontractors
and joint venture partners for architectengineer services contracts (section 823
of the National Defense Authorization
Act for Fiscal Year 2019 (Pub. L. 115–
232)).
■ 6. Revise section 236.609–70 to read
as follows:
236.609–70
clauses.
Additional provisions and
(a) Use the provision at 252.236–7011,
Overseas Architect-Engineer Services—
Restriction to United States Firms, in
solicitations for architect-engineer
contracts that are—
(1) Funded with military construction
appropriations;
(2) Estimated to exceed $500,000; and
(3) To be performed in Japan, in any
North Atlantic Treaty Organization
member country, or in countries
bordering the Arabian Gulf.
(b) See 242.1504–70 for the additional
provision and clauses required for
architect-engineer services contracts
with an estimated value at or above the
thresholds set forth in FAR 42.1502(e)
and 242.1502(f)(i).
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PART 242—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
7. Add sections 242.1501 and
242.1501–70 to subpart 242.15 to read
as follows:
■
242.1501
General.
242.1501–70
Definitions.
As used in this subpart—
First-tier subcontractor means a
subcontractor awarded a contract
directly by the prime contractor for the
purpose of acquiring supplies or
services (including construction) for
performance of a prime contract. It does
not include the contractor’s supplier
agreements with vendors, such as longterm arrangements for materials or
supplies that benefit multiple contracts,
the costs of which are normally applied
to a contractor’s general and
administrative expenses or indirect
costs.
Subcontractor, as defined in FAR
44.101, means any supplier, distributor,
vendor, or firm that furnishes supplies
or services to or for a prime contractor
or another subcontractor.
■ 8. Amend section 242.1502 by adding
paragraphs (e) and (f) to read as follows:
242.1502
Policy.
(e)(i) General. In addition to the
requirements in FAR 42.1502(e), past
performance evaluations are required
for a construction contract or order,
for—
(A) First-tier subcontractors
performing a portion of a construction
contract or order valued at or above the
threshold in FAR 42.1502(e) or 20
percent of the value of the prime
contract, whichever is higher, if the
overall execution of the work is
impacted by the performance of the
subcontractor or subcontractors; and
(B) Individual partners of a joint
venture awarded a construction contract
or order valued at or above the
threshold in FAR 42.1502(e) (section
823 of the National Defense
Authorization Act for Fiscal Year 2019
(Pub. L. 115–232)).
(ii) First-tier subcontractor past
performance evaluations. Contracting
officers, in coordination with the
cognizant requiring office, shall—
(A) Ensure the information included
in the prime contractor’s ratings of its
first-tier subcontractors is not
inconsistent with the information
included in the rating for the prime
contractor, and the first-tier
subcontractor evaluations are conducted
consistent with the requirements of FAR
subpart 42.15;
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16:57 May 19, 2021
Jkt 253001
(B) Ensure 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
(C) Use their best judgment on
whether the overall execution of the
work is impacted by the performance of
the subcontractor or subcontractors.
(iii) Joint venture contractor past
performance evaluations. Contracting
officers, in coordination with the
cognizant requiring office, shall—
(A) Ensure the rating for joint
ventures, at a minimum, includes an
identification that allows the evaluation
to be retrieved for each partner of the
joint venture;
(B) Provide each joint venture partner
the same opportunity to submit
comments, rebutting statements, or
additional information, consistent with
FAR subpart 42.15; and
(C) Ensure 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.
(iv) Exception. The contracting officer
may grant an exception from the annual
evaluation requirements under FAR
42.1502(a) for submission of annual
evaluations for construction contracts
when the past performance ratings
would not provide the best
representation of the performance of a
contractor, subcontractor, or joint
venture partners, including—
(A) Where no severable element of the
work has been completed; or
(B) When the contracting officer
determines that—
(1) 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
(2) There is an issue in dispute which,
until resolved, would likely cause the
annual rating to inaccurately reflect the
past performance of the contractor.
(C) The contracting officer’s decision
shall be approved at least one level
above the contracting officer.
(f)(i) General. In addition to the
requirements in FAR 42.1502(f), past
performance evaluations are required,
for an architect-engineer services
contract or order, for—
(A) First-tier subcontractors
performing a portion of an architectengineer services contract or order
valued at or above the threshold in FAR
42.1502(e) or 20 percent of the value of
the prime contract, whichever is higher,
if the overall execution of the work is
impacted by the performance of the
subcontractor or subcontractors; and
PO 00000
Frm 00082
Fmt 4702
Sfmt 4702
(B) Individual partners of a joint
venture awarded an architect-engineer
services contract or order valued at or
above the threshold in FAR 42.1502(e)
(section 823 of the National Defense
Authorization Act for Fiscal Year 2019
(Pub. L. 115–232)).
(ii) First-tier subcontractor past
performance evaluations. Contracting
officers, in coordination with the
cognizant requiring office, shall—
(A) Ensure the information included
in the prime contractor’s ratings of its
first-tier subcontractors is not
inconsistent with the information
included in the rating for the prime
contractor, and the first-tier
subcontractor evaluations are conducted
consistent with the requirements of FAR
subpart 42.15;
(B) Ensure 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
(C) Use their best judgment on
whether the overall execution of the
work is impacted by the performance of
the subcontractor or subcontractors.
(iii) Joint venture contractor past
performance evaluations. Contracting
officers, in coordination with the
cognizant requiring office, shall—
(A) Ensure the rating for joint
ventures, at a minimum, includes an
identification that allows the evaluation
to be retrieved for each partner of the
joint venture;
(B) Provide each joint venture partner
the same opportunity to submit
comments, rebutting statements, or
additional information, consistent with
FAR subpart 42.15; and
(C) Ensure 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.
(iv) Exception. The contracting officer
may grant an exception from the annual
evaluation requirements under FAR
42.1502(a) for submission of annual
evaluations for architect-engineer
services contracts when the past
performance ratings would not provide
the best representation of the
performance of a prime contractor,
subcontractor, or joint venture partners,
including—
(A) Where no severable element of the
work has been completed; or
(B) When the contracting officer
determines that—
(1) 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
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(2) There is an issue in dispute which,
until resolved, would likely cause the
annual rating to inaccurately reflect the
past performance of the contractor.
(C) The contracting officer’s decision
shall be approved at least one level
above the contracting officer.
*
*
*
*
*
■ 9. Add section 242.1504–70 to subpart
242.15 to read as follows:
242.1504–70 Solicitation provision and
contract clauses.
(a) Use the provision at 252.242–
70XX, Identification of Joint Venture
Partners for Past Performance—
Construction and Architect-Engineer
Services, in solicitations that contain
the clause at 252.242–70YY.
(b) Use the following clauses in
solicitations, contracts, and orders for
construction and architect-engineer
services if the estimated value is at or
above the thresholds in FAR 42.1502(e),
and 242.1502(e)(i) for construction or
242.1502(f)(i) for architect-engineer
services, respectively:
(1) 252.242–70YY, Past Performance
of Joint Venture Partners—Construction
and Architect-Engineer Services.
(2) 252.242–70ZZ, Past Performance
of Subcontractors—Construction and
Architect-Engineer Services.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
10. Add section 252.242–70XX to read
as follows:
■
252.242–70XX Identification of Joint
Venture Partners for Past Performance—
Construction and Architect-Engineer
Services.
As prescribed in 242.1504–70(a), use
the following provision:
Identification of Joint Venture Partners for
Past Performance—Construction and
Architect-Engineer Services (DATE)
(a) All joint venture partners shall be
registered in the System for Award
Management (see Federal Acquisition
VerDate Sep<11>2014
16:57 May 19, 2021
Jkt 253001
Regulation 52.204–7, System for Award
Management) prior to submission of an offer.
(b) The lead joint venture partner shall be
identified as a part of an offer.
(c) All joint venture partners shall provide
their individual legal names, unique entity
identifiers, and their Commercial and
Government Entity (CAGE) codes as a part of
an offer.
(End of provision)
■ 11. Add section 252.242–70YY to read
as follows:
252.242–70YY Past Performance of Joint
Venture Partners—Construction and
Architect-Engineer Services.
As prescribed in 242.1504–70(b) and
(b)(1), use the following clause:
Past Performance of Joint Venture
Partners—Construction and ArchitectEngineer Services (DATE)
(a) Past performance evaluations
conducted on the contract in accordance
with Federal Acquisition Regulation (FAR)
subpart 42.15 and Defense Federal
Acquisition Regulation Supplement 242.1502
will apply to the joint venture Contractor
itself, as well as each individual partner of
the joint venture identified in the
Contractor’s offer, to ensure that past
performance information in the Contractor
Performance Assessment Reporting System
on joint venture projects is considered in
future awards to individual joint venture
partners.
(b) Each partner, through the joint venture,
is given the same opportunity to submit
comments, rebutting statements, or
additional information, consistent with FAR
subpart 42.15.
(End of clause)
■ 12. Add section 252.242–70ZZ to read
as follows:
252.242–70ZZ Past Performance of
Subcontractors—Construction and
Architect-Engineer Services.
As prescribed in 242.1504–70(b) and
(b)(2), use the following clause:
Past Performance of Subcontractors—
Construction and Architect-Engineer
Services (DATE)
(a) Definitions. As used in this clause—
PO 00000
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Fmt 4702
Sfmt 9990
27363
First-tier subcontractor means a
subcontractor awarded a contract directly by
the prime contractor for the purpose of
acquiring supplies or services (including
construction) for performance of a prime
contract. It does not include the contractor’s
supplier agreements with vendors, such as
long-term arrangements for materials or
supplies that benefit multiple contracts and/
or the costs of which are normally applied to
a contractor’s general and administrative
expenses or indirect costs.
Subcontractor means any supplier,
distributor, vendor, or firm that furnishes
supplies or services to or for a prime
contractor or another subcontractor (see
Federal Acquisition Regulation (FAR)
44.101).
(b) Past performance evaluations. The
Contractor shall prepare past performance
evaluations for first-tier subcontractors
performing a portion of a construction or an
architect-engineer services contract with an
estimated value at or above the threshold set
forth in FAR 42.1502(e), or 20 percent of the
value of the prime contract, whichever is
higher. First-tier subcontractors shall have an
opportunity to respond to the past
performance evaluation to submit comments,
rebutting statements, or additional
information, consistent with FAR 42.1503.
(c) Contractor’s responsibility. Negative
evaluations of a subcontractor in no way
obviate the Contractor’s responsibility for
successful completion of the contract and
management of its subcontractors.
(d) Identification of first-tier
subcontractors. The Contractor shall provide
the Contracting Officer with the legal
business name, the unique entity identifier,
and Commercial and Government Entity
(CAGE) code of each first-tier subcontractor
under the contract that meets the criteria in
paragraph (b) of this clause within 60 days
after award and within 30 days as new
subcontracts that meet the criteria at Defense
Federal Acquisition Regulation Supplement
242.1502(e) and (f) are issued during
performance.
(End of clause)
[FR Doc. 2021–10582 Filed 5–19–21; 8:45 am]
BILLING CODE 5001–06–P
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]]>Agencies
[Federal Register Volume 86, Number 96 (Thursday, May 20, 2021)]
[Proposed Rules]
[Pages 27358-27363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10582]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 215, 236, 242, and 252
[Docket DARS-2020-0040]
RIN 0750-AK16
Defense Federal Acquisition Regulation Supplement: Past
Performance of Subcontractors and Joint Venture Partners (DFARS Case
2018-D055)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing 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.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before July 19, 2021, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2018-D055, using
any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for
[[Page 27359]]
``DFARS Case 2018-D055.'' Select ``Comment Now'' and follow the
instructions provided to submit a comment. Please ``DFARS Case 2018-
D055'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2018-D055 in
the subject line of the message.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms.
Barbara Trujillo, OUSD(A&S)DPC/DARS, Room 3B938, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting (except allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Barbara Trujillo, telephone 571-
372-6102.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the DFARS to implement section 823 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019
(Pub. L. 115-232). Section 823 requires performance evaluations in
accordance with specified conditions for individual partners of joint
ventures for construction and architect-engineer (A&E) services
contracts with an estimated value in accordance with the threshold set
forth in FAR 42.1502(e), currently $750,000; and for first-tier
subcontractors performing a portion of a construction or A&E services
contract exceeding the threshold set forth in FAR 42.1502(e) or 20
percent of the value of the prime contract, whichever is higher. An
exception may be granted when submission of annual past performance
evaluations would not provide the best representation of the
contractor's performance, including subcontractors and joint venture
partners.
II. Discussion and Analysis
The following changes to the DFARS are proposed to implement
section 823 of the NDAA for FY 2019:
DFARS 242.1501-70 defines ``first-tier subcontractor'' and
``subcontractor'' as those terms are applicable to subpart 242.15.
Requirements for past performance evaluations to be performed for
first-tier subcontractors and partners of a joint venture are provided
at DFARS 242.1502 paragraph (e) for construction contracts, and
paragraph (f) for A&E services contracts. Specifically, past
performance evaluations are required for first-tier subcontractors
performing a portion of construction or A&E services contracts or
orders that are valued at or above the threshold in FAR 42.1502(e) or
20 percent of the value of the prime contract, whichever is higher.
Past performance evaluations are required for individual partners of a
joint venture awarded a construction or A&E services contract or order
valued at or above the threshold in FAR 42.1502(e).
When acquiring construction or architect-engineer services,
contracting officers will consider, as part of the past performance
evaluation, an offeror's past performance as a first-tier subcontractor
or individual partner of a joint venture under construction and/or
architect-engineer services contracts. In reviewing first-tier
subcontractor and joint venture partner past performance evaluations,
contracting officers, in coordination with the cognizant requiring
office, will work to ensure the following: Consistency between prime
and first-tier subcontractor rating information; successful completion
of applicable contracts; the same opportunity for each joint venture
partner to submit comments, rebutting statements, or additional
information consistent with FAR subpart 42.15; and clear
identification, in the rating, of the responsibilities of each partner
for discrete elements of the work where the partners are not jointly
and severally responsible for the project.
DFARS 242.1502, paragraphs (e)(iv) and (f)(iv) provide guidance to
contracting officers for providing an exception when the submission of
annual past performance ratings would not provide the best
representation of the performance of a prime contractor, subcontractor,
or joint venture partners.
DFARS 242.1504-70(a) adds a prescription for a new DFARS
solicitation provision 252.242-70XX, Identification of Joint Venture
Partners for Past Performance--Construction and Architect-Engineer
Services, to convey the requirement to identify, as part of an offer,
all partners in the joint venture. This provision is required for
construction and A&E services solicitations that include the clause at
DFARS 252.242-70YY. The provision requires all joint venture partners
to be registered in the System for Award Management (SAM) in accordance
with FAR 4.11 and FAR provision 52.204-7, System for Award Management,
prior to submission of an offer.
DFARS 242.1504-70(b)(1) and (b)(2), respectively, add new
prescriptions for the use of two new DFARS contract clauses: 252.242-
70YY, Past Performance of Joint Venture Partners--Construction and
Architect-Engineer Services; and 252.242-70ZZ, Past Performance of
Subcontractors--Construction and Architect-Engineer Services. The
clause at 252.242-70YY informs the contractor that past performance
evaluations are required for joint ventures awarded a construction or
A&E services contract exceeding the threshold set forth in FAR
42.1502(e) (currently $750,000). DFARS clause 252.242-70ZZ instructs
contractors to prepare past performance evaluations for first-tier
subcontractors performing a portion of a construction or an A&E
services contract with an estimated value in accordance with the
thresholds set forth in FAR 42.1502(e), and 242.1502(e)(i) or
242.1502(f)(i), or 20 percent of the value of the prime contract,
whichever is higher. In addition, the clause requires contractors to
provide the legal business name, the unique entity identifier, and
Commercial and Government Entity (CAGE) code of each first-tier
subcontractor under the contract as a part of its offer or as new
subcontracts are issued during performance.
New text is added to DFARS 215.305(a)(2)(C) advising contracting
officers to consider past performance information on first-tier
subcontractors and joint venture partners in source selections for
construction and A&E services contracts.
The rule provides cross-references to the policy and requirements
of DFARS 242.1502(e) at other applicable subparts for the DFARS.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
To implement section 823 of the NDAA for FY 2019, this proposed
rule adds one new solicitation provision and two new contract clauses.
The new solicitation provision is 252.242-70XX, Identification of
Joint Venture Partners for Past Performance--Construction and
Architect-Engineer Services. This provision is used to convey the
identification requirements to joint venture partners.
The two new clauses are 252.242-70YY, Past Performance of Joint
Venture Partners--Construction and Architect-Engineer Services; and
252.242-70ZZ, Past Performance of Subcontractors--Construction and
Architect-Engineer Services. The clauses inform the contractor that
past performance evaluations are required for partners in a joint
venture awarded a construction
[[Page 27360]]
or A&E services contract exceeding the threshold set forth in FAR
42.1502(e) (currently $750,000), and for first-tier subcontractors
performing a portion of a construction or an A&E services contract with
an estimated value in accordance with the threshold set forth in FAR
42.1502(e) or 20 percent of the value of the prime contract, whichever
is higher.
DoD is not proposing to apply the requirements of section 823 to
contracts at or below the simplified acquisition threshold. Section 823
requirements will not apply to the acquisition of commercial items,
including commercially available off-the-shelf items.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. This rule is not
anticipated to be a major rule under 5 U.S.C. 804.
VI. Regulatory Flexibility Act
This proposed rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Therefore, an initial
regulatory flexibility analysis has been performed and is summarized as
follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement section 823 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019. Section 823
requires performance evaluations in accordance with specified
conditions for individual partners of joint ventures awarded
construction or architect-engineer (A&E) services contracts exceeding
the threshold set forth in FAR 42.1502(e) (currently $750,000), and for
first-tier subcontractors performing a portion of a construction or A&E
services contract with an estimated value in accordance with the
threshold set forth in FAR 42.1502(e) or 20 percent of the value of the
prime contract, whichever is higher. An exception may be granted when
submission of annual past performance evaluations would not provide the
best representation of the contractor's performance, including
subcontractors and joint venture partners.
The objective of this proposed rule is to implement the statutory
changes to require performance evaluations for first-tier
subcontractors and individual partners of joint ventures for
construction and A&E services contracts. An exception may apply when
submission of annual evaluations would not provide the best
representation of the contractor's performance, including
subcontractors and joint venture partners.
This rule is expected to impact small entities performing as prime
contractors, first-tier subcontractors, or partners in joint ventures
awarded construction or A&E services contracts or orders exceeding
$750,000. According to data obtained from the Federal Procurement Data
System for fiscal years 2016 through 2018, an average of 490 small
entities received DoD contracts, task orders, or delivery orders for
construction and A&E services exceeding $750,000. Those small entities
would need to provide performance evaluations of their first-tier
subcontractors.
Approximately 822 contracts, task orders, and delivery orders over
$750,000 were awarded each year for construction and A&E services. Each
of those awards is estimated to have two to four subcontracts, for a
total of 2,121 subcontracts that would require performance evaluations.
DoD estimates that approximately 1,208 of those subcontracts were
awarded to small entities. These small entities would receive a
performance evaluation as a first-tier subcontractor.
DoD estimates that approximately 112 joint ventures per year were
awarded contracts, task orders, or delivery orders for construction and
A&E services. DoD further estimates that approximately half (56) of
those joint ventures include at least one small entity as a partner in
the joint venture. Those small entities would receive a performance
evaluation as a partner in the joint venture.
This proposed rule does include new reporting, and other compliance
requirements for small businesses. Small business prime contractors
will be required to prepare past performance evaluations for their
first-tier subcontractors described in DFARS 242.1502(e)(i) and (f)(i).
Small businesses that are first-tier subcontractors and small business
partners in joint ventures described in DFARS 242.1502(e)(i) and (f)(i)
will be given the opportunity to submit comments, rebutting statements,
or additional information in response to past performance evaluations.
There are no associated recordkeeping requirements. Accordingly, DoD
estimates that it takes approximately one hour at an hourly rate of
$56.76 for a contractor representative to draft, review, comment,
accomplish senior level concurrence, and return past performance
evaluations for: (1) First-tier subcontractors, and (2) joint ventures.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. There are no known significant alternative approaches to
the proposed rule that would meet the statutory requirements.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C 610 (DFARS Case 2018-D055), in
correspondence.
VII. Paperwork Reduction Act
The rule contains information collection requirements that require
the approval of the Office of Management and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35). This rule contains information
collection requirements in addition to those at FAR 42.15, under OMB
Control Number 9000-0142 for prime contractor past performance
evaluations. This rule adds a new DoD information collection
requirement that requires the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Accordingly, DoD has submitted a request for approval of a new
information collection requirement concerning a DFARS solicitation
provision at 252.242-70XX, Identification of Joint Venture Partners for
Past Performance-Construction and
[[Page 27361]]
Architect-Engineer Services; and contract clauses at 252.242-70YY, Past
Performance of Joint Venture Partners--Construction and Architect-
Engineer Services; and 252.242-70ZZ, Past Performance of
Subcontractors--Construction and Architect-Engineer Services.
A. Public reporting burden for this collection of information is
estimated to average 1.1 hours per response, including the time for
reviewing instructions, and completing and reviewing the collection of
information. The annual reporting burden is estimated as follows:
(1) 252.242-70XX, Identification of Joint Venture Partners for Past
Performance--Construction and Architect-Engineer Services
Respondents: 112.
Responses per respondent: 1.
Total annual responses: 112.
Hours per response: 0.5.
Total response burden hours: 56.
(2) 252.242-70YY, Past Performance of Joint Venture Partners--
Construction and Architect-Engineer Services
Respondents: 336.
Responses per respondent: 1.
Total annual responses: 336.
Hours per response: 1.
Total response burden hours: 336.
(3) Past Performance Evaluations of First-Tier Subcontractors Under
252.242-70ZZ, Past Performance of Subcontractors--Construction and
Architect-Engineer Services
Respondents: 2,943.
Responses per respondent: 1.
Total annual responses: 2,943.
Hours per response: 1.
Total response burden hours: 2,943.
(4) Information on Newly Awarded First-Tier Subcontracts Under 252.242-
70ZZ, Past Performance of Subcontractors--Construction and Architect-
Engineer Services
Respondents: 82.
Responses per respondent: 1.
Total annual responses: 82.
Hours per response: 0.5.
Total response Burden Hours: 41.
B. Request for Comments Regarding Paperwork Burden
Written comments and recommendations on the proposed information
collection, including suggestions for reducing this burden, should be
sent to Ms. Susan Minson at the Office of Management and Budget, Desk
Officer for DoD, Room 10236, New Executive Office Building, Washington,
DC 20503, or email [email protected], with a copy to the
Defense Acquisition Regulations System, Attn: Ms. Barbara Trujillo,
OUSD (A&S)DPC/DARS, Room 3B938, 3060 Defense Pentagon, Washington, DC
20301-3060. Comments can be received from 30 to 60 days after the date
of this notice, but comments to OMB will be most useful if received by
OMB within 30 days after the date of this notice.
Public comments are particularly invited on: Whether this
collection of information is necessary for the proper performance of
functions of the DFARS, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
To obtain a copy of the supporting statement and associated
collection instruments, please email [email protected]. Include DFARS
Case 2018-D055 in the subject line of the message.
List of Subjects in 48 CFR Parts 215, 236, 242, and 252
Government procurement.
Jennifer D. Johnson,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 215, 236, 242, and 252 are proposed to be
amended as follows:
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1. The authority citation for 48 CFR parts 215, 236, 242, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 215--CONTRACTING BY NEGOTIATION
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2. Amend section 215.305 by adding paragraph (a)(2)(C) to read as
follows:
215.305 Proposal evaluation.
(a)(2) * * *
(C) In accordance with section 823 of the National Defense
Authorization Act for Fiscal Year 2019 (Pub. L. 115-232), when
acquiring construction or architect-engineer services, contracting
officers shall consider an offeror's past performance as a first-tier
subcontractor or individual partner of a joint venture under
construction and/or architect-engineer services contracts as part of
the evaluation of past performance.
PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
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3. Add section 236.201 to subpart 236.2 to read as follows:
236.201 Evaluation of contractor performance.
See 242.1502(e) for additional requirements on past performance
evaluations for first-tier subcontractors and joint venture partners
for construction contracts (section 823 of the National Defense
Authorization Act for Fiscal Year 2019 (Pub. L. 115-232)).
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4. Amend section 236.570 by adding paragraph (f) to read as follows:
236.570 Additional provisions and clauses.
* * * * *
(f) See 242.1504-70 for the additional provision and clauses
required for construction contracts with an estimated value at or above
the thresholds set forth in FAR 42.1502(e) and 242.1502(e)(i).
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5. Revise section 236.604 to read as follows:
236.604 Performance evaluation.
(1) Prepare a separate performance evaluation after actual
construction of the project. Ordinarily, the evaluating official should
be the person most familiar with the architect-engineer contractor's
performance.
(2) See 242.1502(f) for additional requirements on past performance
evaluations for first-tier subcontractors and joint venture partners
for architect-engineer services contracts (section 823 of the National
Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232)).
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6. Revise section 236.609-70 to read as follows:
236.609-70 Additional provisions and clauses.
(a) Use the provision at 252.236-7011, Overseas Architect-Engineer
Services--Restriction to United States Firms, in solicitations for
architect-engineer contracts that are--
(1) Funded with military construction appropriations;
(2) Estimated to exceed $500,000; and
(3) To be performed in Japan, in any North Atlantic Treaty
Organization member country, or in countries bordering the Arabian
Gulf.
(b) See 242.1504-70 for the additional provision and clauses
required for architect-engineer services contracts with an estimated
value at or above the thresholds set forth in FAR 42.1502(e) and
242.1502(f)(i).
[[Page 27362]]
PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES
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7. Add sections 242.1501 and 242.1501-70 to subpart 242.15 to read as
follows:
242.1501 General.
242.1501-70 Definitions.
As used in this subpart--
First-tier subcontractor means a subcontractor awarded a contract
directly by the prime contractor for the purpose of acquiring supplies
or services (including construction) for performance of a prime
contract. It does not include the contractor's supplier agreements with
vendors, such as long-term arrangements for materials or supplies that
benefit multiple contracts, the costs of which are normally applied to
a contractor's general and administrative expenses or indirect costs.
Subcontractor, as defined in FAR 44.101, means any supplier,
distributor, vendor, or firm that furnishes supplies or services to or
for a prime contractor or another subcontractor.
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8. Amend section 242.1502 by adding paragraphs (e) and (f) to read as
follows:
242.1502 Policy.
(e)(i) General. In addition to the requirements in FAR 42.1502(e),
past performance evaluations are required for a construction contract
or order, for--
(A) First-tier subcontractors performing a portion of a
construction contract or order valued at or above the threshold in FAR
42.1502(e) or 20 percent of the value of the prime contract, whichever
is higher, if the overall execution of the work is impacted by the
performance of the subcontractor or subcontractors; and
(B) Individual partners of a joint venture awarded a construction
contract or order valued at or above the threshold in FAR 42.1502(e)
(section 823 of the National Defense Authorization Act for Fiscal Year
2019 (Pub. L. 115-232)).
(ii) First-tier subcontractor past performance evaluations.
Contracting officers, in coordination with the cognizant requiring
office, shall--
(A) Ensure the information included in the prime contractor's
ratings of its first-tier subcontractors is not inconsistent with the
information included in the rating for the prime contractor, and the
first-tier subcontractor evaluations are conducted consistent with the
requirements of FAR subpart 42.15;
(B) Ensure 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
(C) Use their best judgment on whether the overall execution of the
work is impacted by the performance of the subcontractor or
subcontractors.
(iii) Joint venture contractor past performance evaluations.
Contracting officers, in coordination with the cognizant requiring
office, shall--
(A) Ensure the rating for joint ventures, at a minimum, includes an
identification that allows the evaluation to be retrieved for each
partner of the joint venture;
(B) Provide each joint venture partner the same opportunity to
submit comments, rebutting statements, or additional information,
consistent with FAR subpart 42.15; and
(C) Ensure 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.
(iv) Exception. The contracting officer may grant an exception from
the annual evaluation requirements under FAR 42.1502(a) for submission
of annual evaluations for construction contracts when the past
performance ratings would not provide the best representation of the
performance of a contractor, subcontractor, or joint venture partners,
including--
(A) Where no severable element of the work has been completed; or
(B) When the contracting officer determines that--
(1) 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
(2) There is an issue in dispute which, until resolved, would
likely cause the annual rating to inaccurately reflect the past
performance of the contractor.
(C) The contracting officer's decision shall be approved at least
one level above the contracting officer.
(f)(i) General. In addition to the requirements in FAR 42.1502(f),
past performance evaluations are required, for an architect-engineer
services contract or order, for--
(A) First-tier subcontractors performing a portion of an architect-
engineer services contract or order valued at or above the threshold in
FAR 42.1502(e) or 20 percent of the value of the prime contract,
whichever is higher, if the overall execution of the work is impacted
by the performance of the subcontractor or subcontractors; and
(B) Individual partners of a joint venture awarded an architect-
engineer services contract or order valued at or above the threshold in
FAR 42.1502(e) (section 823 of the National Defense Authorization Act
for Fiscal Year 2019 (Pub. L. 115-232)).
(ii) First-tier subcontractor past performance evaluations.
Contracting officers, in coordination with the cognizant requiring
office, shall--
(A) Ensure the information included in the prime contractor's
ratings of its first-tier subcontractors is not inconsistent with the
information included in the rating for the prime contractor, and the
first-tier subcontractor evaluations are conducted consistent with the
requirements of FAR subpart 42.15;
(B) Ensure 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
(C) Use their best judgment on whether the overall execution of the
work is impacted by the performance of the subcontractor or
subcontractors.
(iii) Joint venture contractor past performance evaluations.
Contracting officers, in coordination with the cognizant requiring
office, shall--
(A) Ensure the rating for joint ventures, at a minimum, includes an
identification that allows the evaluation to be retrieved for each
partner of the joint venture;
(B) Provide each joint venture partner the same opportunity to
submit comments, rebutting statements, or additional information,
consistent with FAR subpart 42.15; and
(C) Ensure 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.
(iv) Exception. The contracting officer may grant an exception from
the annual evaluation requirements under FAR 42.1502(a) for submission
of annual evaluations for architect-engineer services contracts when
the past performance ratings would not provide the best representation
of the performance of a prime contractor, subcontractor, or joint
venture partners, including--
(A) Where no severable element of the work has been completed; or
(B) When the contracting officer determines that--
(1) 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
[[Page 27363]]
(2) There is an issue in dispute which, until resolved, would
likely cause the annual rating to inaccurately reflect the past
performance of the contractor.
(C) The contracting officer's decision shall be approved at least
one level above the contracting officer.
* * * * *
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9. Add section 242.1504-70 to subpart 242.15 to read as follows:
242.1504-70 Solicitation provision and contract clauses.
(a) Use the provision at 252.242-70XX, Identification of Joint
Venture Partners for Past Performance--Construction and Architect-
Engineer Services, in solicitations that contain the clause at 252.242-
70YY.
(b) Use the following clauses in solicitations, contracts, and
orders for construction and architect-engineer services if the
estimated value is at or above the thresholds in FAR 42.1502(e), and
242.1502(e)(i) for construction or 242.1502(f)(i) for architect-
engineer services, respectively:
(1) 252.242-70YY, Past Performance of Joint Venture Partners--
Construction and Architect-Engineer Services.
(2) 252.242-70ZZ, Past Performance of Subcontractors--Construction
and Architect-Engineer Services.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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10. Add section 252.242-70XX to read as follows:
252.242-70XX Identification of Joint Venture Partners for Past
Performance--Construction and Architect-Engineer Services.
As prescribed in 242.1504-70(a), use the following provision:
Identification of Joint Venture Partners for Past Performance--
Construction and Architect-Engineer Services (DATE)
(a) All joint venture partners shall be registered in the System
for Award Management (see Federal Acquisition Regulation 52.204-7,
System for Award Management) prior to submission of an offer.
(b) The lead joint venture partner shall be identified as a part
of an offer.
(c) All joint venture partners shall provide their individual
legal names, unique entity identifiers, and their Commercial and
Government Entity (CAGE) codes as a part of an offer.
(End of provision)
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11. Add section 252.242-70YY to read as follows:
252.242-70YY Past Performance of Joint Venture Partners--Construction
and Architect-Engineer Services.
As prescribed in 242.1504-70(b) and (b)(1), use the following
clause:
Past Performance of Joint Venture Partners--Construction and Architect-
Engineer Services (DATE)
(a) Past performance evaluations conducted on the contract in
accordance with Federal Acquisition Regulation (FAR) subpart 42.15
and Defense Federal Acquisition Regulation Supplement 242.1502 will
apply to the joint venture Contractor itself, as well as each
individual partner of the joint venture identified in the
Contractor's offer, to ensure that past performance information in
the Contractor Performance Assessment Reporting System on joint
venture projects is considered in future awards to individual joint
venture partners.
(b) Each partner, through the joint venture, is given the same
opportunity to submit comments, rebutting statements, or additional
information, consistent with FAR subpart 42.15.
(End of clause)
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12. Add section 252.242-70ZZ to read as follows:
252.242-70ZZ Past Performance of Subcontractors--Construction and
Architect-Engineer Services.
As prescribed in 242.1504-70(b) and (b)(2), use the following
clause:
Past Performance of Subcontractors--Construction and Architect-Engineer
Services (DATE)
(a) Definitions. As used in this clause--
First-tier subcontractor means a subcontractor awarded a
contract directly by the prime contractor for the purpose of
acquiring supplies or services (including construction) for
performance of a prime contract. It does not include the
contractor's supplier agreements with vendors, such as long-term
arrangements for materials or supplies that benefit multiple
contracts and/or the costs of which are normally applied to a
contractor's general and administrative expenses or indirect costs.
Subcontractor means any supplier, distributor, vendor, or firm
that furnishes supplies or services to or for a prime contractor or
another subcontractor (see Federal Acquisition Regulation (FAR)
44.101).
(b) Past performance evaluations. The Contractor shall prepare
past performance evaluations for first-tier subcontractors
performing a portion of a construction or an architect-engineer
services contract with an estimated value at or above the threshold
set forth in FAR 42.1502(e), or 20 percent of the value of the prime
contract, whichever is higher. First-tier subcontractors shall have
an opportunity to respond to the past performance evaluation to
submit comments, rebutting statements, or additional information,
consistent with FAR 42.1503.
(c) Contractor's responsibility. Negative evaluations of a
subcontractor in no way obviate the Contractor's responsibility for
successful completion of the contract and management of its
subcontractors.
(d) Identification of first-tier subcontractors. The Contractor
shall provide the Contracting Officer with the legal business name,
the unique entity identifier, and Commercial and Government Entity
(CAGE) code of each first-tier subcontractor under the contract that
meets the criteria in paragraph (b) of this clause within 60 days
after award and within 30 days as new subcontracts that meet the
criteria at Defense Federal Acquisition Regulation Supplement
242.1502(e) and (f) are issued during performance.
(End of clause)
[FR Doc. 2021-10582 Filed 5-19-21; 8:45 am]
BILLING CODE 5001-06-P
