Enhancing Federal Procurement Standards Through Past Performance Documentation

Proposal to add a FAR Subpart 42.15-like section to the MPC for recording Contractor Performance Information, in alignment with OMB guidance in 2 CFR Part 200. The history and importance of past performance evaluation in federal grants and agreements are highlighted, emphasizing the need for a structured approach within the MPC. The compliance requirements, dating back to the early 1970s, mandate that states and localities adhere to federal standards, including the documentation of past performance. The significance of assessing past performance for responsible contractor selection is discussed, with emphasis on factors like integrity, compliance, and available resources.

• Federal Procurement
• MPC
• FAR Subpart 42.15
• OMB Guidance
• Past Performance

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1. ABA Model Procurement Code: FAR 42.15 Contractor Performance Information. A. Milan Sanchez 1

2. Introduction I am proposing for consideration addition of a FAR Subpart 42.15 like section added to the MPC. States use of past performance in their procurements give need for documentation of past performance information in the MPC. 2

3. Agenda OMB Guidance for Grants and Agreements in 2 CFR Part 200 and past performance. FAR Subpart 42.15 requires recording Contractor Performance Information. MPC lacks guidance on recording Contractor Performance Information. 3

4. OMB Guidance for Grants and Agreements in 2 CFR Part 200. There are requirements in OMB Guidance for Grants and Agreements 2 CFR Part 200, that require review of past performance. History of MPC and the OMB. 2 CFR 200.218(h) General procurement standards. 2 CFR 200.319(d)(2) Competition. 4

5. Requirement for the MPC to conform to OMB guidance has been around since the early 1970 s. States and localities receiving federal grants were required to comply with federal codes of conduct and procurement standards. Federal authorities decreed that a state or locality that adopted the MPC would be deemed to have complied with federal standards. History of MPC and the OMB. F. Trombridge Vom Baur, A Personal History of the Model Procurement Code , 25 PCLJ 149, (1996). 5

6. The non-Federal entity must award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. See also 200.214. Procurement officials cannot determine responsibility if there is no record of past performance to review. NJAC 17:12-2.8 allows the director to bypass lowest price bid due to poor past performance.(Westlaw 2023) OMB Regulation 2 CFR 200.318(h). 6

7. OMB Regulation 2 CFR 200.319(d)(2). Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals. Procurement officials cannot effectively use past performance as an evaluation factor if there is no record of past performance to review. Asses past performance as part of procurement technical evaluations, similar to Federal procurement officers. 7

8. FAR Subpart 42.15 Contractor Performance Information. History of FAR Subpart 42.15. FAR Subpart 42.15 Requires recording and maintaining contractor performance information. 8

9. FAR Subpart 42.15 Background. Office of Federal Procurement Policy Letter 92-5, Past Performance Information. (Westlaw 2023) Required Federal agencies to evaluate contractor performance on all new contracts over $100,000. To use past performance information in making responsibility determinations in both sealed bid and competitively negotiated procurements. To specify past performance as an evaluation factor in solicitations for competitively negotiated contracts expected to exceed $100,000. A final rule in 60 FR 16718-01, March 31, 1995, amended 48 CFR Parts 9, 15, and 42. (Westlaw 2023) It amended Part 9 by making past performance a consideration in determining responsibility. It amended Part 15 by evaluating past performance in all competitive negotiated acquisitions. It amended Part 42 by adding the entire Subpart 42.15 Contractor Performance Information. 9

10. FAR Subpart 42.15 Requires recording and maintaining contractor performance information. FAR Subpart 42.15(a) states past performance information (including the ratings and supporting narratives) is relevant information, for future source selection purposes, regarding a contractor s actions under previously awarded contracts or orders. Provides policies and establishes responsibilities for recording and maintaining contractor performance information: Conforming to requirements and to standards of good workmanship. Forecasting and controlling costs. Adherence to schedules, including the administrative aspects of performance. Integrity and business ethics. 10

11. MPC lacks guidance on recording Contractor Performance Information. MPC 3-401 Responsibility of Bidders and Offerors. Mentions review of bidder s or offeror s past record of contract performance in the public or private sectors. Documentation of past performance helps state and local agencies determine how much risk they can absorb if a contractor fails to perform. 11

12. States are using past performance as part of their procurement codes. Colorado code CRS 24-103-203 mentions evaluation factors but does not specify past performance. (Westlaw 2023) Massachusetts code 801 Mass. Reg. 21.06 does not mention past performance but mentions quality of performance .(Cornell Law School 2023) New Mexico specifies past performance as an evaluation criteria. (NM Procurement Guide January 2016) West Virginia code W. Va. Code 5A-3-10b makes past performance part of best value procurement. (Westlaw2023) Wisconsin code makes past performance an evaluation criteria in selection of A/E firms. (Wis Adm Code 10.12) As mentioned in slide five, New Jersey uses past performance. State Use of Past Performance. 12

13. FAR Subpart 42.15 part of MPC. Responsibility vs. Evaluation Factor. Both require documentation to review. With states adopting the MPC and using past performance to determine responsibility, or as an evaluation factor, there should be a section similar to FAR Subpart 42.15 in the MPC. 13