All procurements over $100,000 must be publicly announced on the Internet or through other means. If the Internet is used, as a minimum the announcement should be placed on the Contracting Opportunities page contained in the FAST. This requirement does not apply to emergency single source actions, purchases from an established QVL or FSS, exercise of options, or changes. For actions under $100,000, a public announcement is optional. _{(Added 12/99)}

Publicizing the names of offerors competing for FAA contracts can be a method of encouraging small businesses to seek subcontracting opportunities with potential FAA contractors. When appropriate, the Contracting Officer (CO) may publicly announce names and addresses of offerors responding to a screening information request. Also, the CO, after making a down select decision, may announce names and addresses of offerors remaining in the competition leading to award provided the SIR includes a notice to the offerors and no offeror objects to the release of this information.

2.   Past Performance _{(Revised 10/2002)}

a.   General. This guidance on past performance can aid in selecting the contractor who is most likely to perform satisfactorily. To select a high quality contractor, commercial firms generally rely on information about a contractor's past performance as a major part of the evaluation process. In the past, the FAA has successfully used past performance as a factor in evaluating the likelihood of success of offerors, and the Acquisition Management System (AMS) encourages integrated product teams/product teams (IPT/PTs) to continue this practice for all procurements, where appropriate. This guidance discusses how past performance can be used as an effective tool in selecting the contractor who is most likely to perform satisfactorily.

b.   Instructions for Using Past Performance in Screening Information Request (SIR).

          (1)          General Considerations. Key to the successful use of past performance, and any factor, in the screening process is the establishment of a clear relationship between the statement of work (SOW), the instructions to offerors, and the evaluation criteria. Past performance information that is not important to the current acquisition should not be included. Therefore, the factors chosen for evaluation should be directly related to the requirements in the SOW. They should be reasonable, logical, and coherent. For instance, there would be no point in considering poor subcontract management if there were no subcontract management needed on the contract. On the other hand, if there were a significant amount of software development, it would certainly be important to know the offeror's record with regard to estimating lines of code, providing software builds on time with few errors, and accomplishing the effort within the estimated cost.

          (2)          Responsibility Determination. Where appropriate, the SIR should state that past performance would be used to evaluate the responsibility of the contractor, and as an evaluation factor. A contractor with a record of unsatisfactory past performance should be screened out of the selection process as part of the responsibility determination. If a contractor's past performance record passes the responsibility determination, then the record should be compared to the other responsible offerors to determine the offeror that provides the best value to the government.

          (3)          Past performance as a Separate Non-Cost/Price Factor. It is best to include past performance as a stand-alone factor, as opposed to integrating it with other non-cost/price factors. Making it distinct and identifiable will reduce the chances of its impact being lost within other factors and should make evaluation easier. The relative importance of past performance compared to price or cost and any other evaluation factors is left to the broad discretion of the IPT/PT as is the source and type of past performance information to be included in the evaluation.

          (4)          How to Weigh Past Performance. Past performance should be ranked to ensure that it is meaningfully considered. To be meaningful in the screening process (and to ensure that offerors are aware that actual contract performance will be a significant factor in future awards), it is recommended that past performance normally be at least equal in significance to any other non-cost evaluation factor. Generally, if a numeric weighting system is used, past performance should be rated at 25 percent or more. For example, if there were five non-cost evaluation factors including past performance, then any of the following examples of weightings or relative importance would suffice:

          (5)          Non-Relevant Contract Experience/New Contractors. The SIR should state whether new contractors, or contractors with non-relevant contract experience will be considered, or rated negatively. For example, if the offeror has a performance history on non-relevant contracts, i.e., prior government or commercial performance record, but not specifically on the type of work solicited, this information might be used to demonstrate management potential. New contractors may have key management and/or technical/scientific personnel proposed for the contract that have some relevant experience. An evaluation of the performance of the proposed key personnel on relevant contracts can be used, as appropriate, as part or all of the past performance evaluation. In addition, teaming relationships and subcontractors can enhance the capability of potential offerors to perform, depending on the relationships that exist within the teaming process.

          (6)          Time-frame, Size, Scope, Complexity. The SIR should ask the contractor for references for ongoing or contracts completed within a specified period of time. A period of three to five years is considered reasonable, depending on the particular circumstances. For small dollar contracts where there are many actions and contractors that provide the products or services, a shorter period may by appropriate. Offerors may attempt to "cherry pick" references to provide selected information on past history. To minimize this, the IPT/PT should attempt to gather past performance history from sources other than those provided by the offeror. Such sources might include the National Institutes of Health (NIH) Contractor Performance System (CPS) data base for On-Going Efforts, other agency contracting personnel, listings of contract awards posted on the FAA Announcement Data Base and in the Commerce Business Daily. All on-going or completed contracts performed during the identified period, or the last "X" contracts performed by the entity within the identified period should be sought. It is recommended that the instruction to offerors ask only for a list of the previous contracts and contact points and for a description of any quality awards earned by the offeror. It is not necessary to burden the process by asking that the offeror prepare a description of its past performance history in the proposal. The IPT/PT should request references for contracts that are similar in size, scope and complexity to the statement of work in the SIR. Each of these terms should be defined in the SIR to alert the offeror to the type of data that is required. _{(Revised 10/2002)}

          (7)          Discriminators/Sub-factors.

                    (a)    Attention should be paid to what discriminates a "good" performer from a "poor" performer for the type of work that will be performed on the specific acquisition. Past performance sub-factors should be shaped by those discriminators, be limited in number, and should be tailored to the key performance criteria in the statement of work (SOW). For certain prime contracts, the ability to manage subcontracts, or software development capability may be important discriminators. The following are some other examples of sub-factors that may be used to evaluate past performance: Quality, timeliness, cost control, business practices, customer satisfaction, key personnel, and/or quality awards and recognition.

                    (b) The sub-factors in the SIR should reflect the questions to be used in interviewing references or reviewing any written evaluations provided by the references. For example, sub-factors with corresponding questions under business practices could include:

          (8)          Relative Importance. The SIR should state whether all sub-factors are relatively equal, or whether certain sub-factors are more important than others. For example, on a contract where most of the work is done for end users and it is difficult for the contract administration team to observe the contractor's performance in a cost-effective manner, significant weight might be placed on customer (end user) satisfaction ratings from the references.

          (9)           Major Subcontractors. If major subcontractors are likely to perform critical aspects of the contract, the IPT/PTs should evaluate the past performance of these subcontractors to determine the overall likelihood of success of the prime contractor performing the contract. The SIR should state how such information will be evaluated.

          (10)           Affiliates, Divisions, etc. For large organizations with many divisions, it is realistic to consider the past performance of the affiliate, division, etc., that will perform the actual work. In making such decisions, however, an IPT/PT must consider the degree of control that a parent organization will exert over the affiliate. If a parent organization has an excellent or poor performance record and the affiliate is going to be closely controlled and managed by the parent, then the IPT/PT should consider the parent organization's performance record in making the performance evaluation.

          (11)           Number of References. It is important to ask for at least two references for each contract (program/technical and contracts) to assure that all aspects of the offeror's performance will be discussed. The name of the organization providing the report should be released to the offeror; however, the names of individuals should generally not be released without the individual’s consent.

          (12)           Use of Other Sources. The instruction to the offerors should include a statement that the government may use past performance information obtained from other than the sources identified by the offeror, and that the information obtained may be used for both the responsibility determination and the best value decision. For each non-Federal reference, the SIR should include an authorization to release information.

          (13)           Inclusion of Survey Form. The survey form need not be included as an attachment in the SIR. However, if the IPT/PT elects to release the questionnaire, the SIR should note that the questions to be asked will not be limited to those on the questionnaire.

          (14)           Sample SIR Provisions. Appendix Sample 1 contains examples of SIR provisions as well as an example client authorization letter. The example should not be viewed as the only way to include past performance in the SIR. Each SIR must contain instructions and evaluation information that best reflects the individual acquisition.

          (1)           Applicability. Past performance is one measurement of an offeror’s ability to perform.

          (2)           Relation to SIR. Relation to SIR. Instances of performance, both good or poor, should be noted and related to the SIR requirements. If problems were identified on a prior contract, the role the sponsor may have played in that result should be taken into account. Evaluations should consider the number and severity of problems, the demonstrated effectiveness of corrective actions taken (not just planned or promised), and the overall work record.

          (3)           Disclosure of Negative Information. If the IPT/PT receives negative information that will have a significant impact on the likelihood of award to an offeror, the IPT/PT should disclose the information and provide an opportunity to respond. This is true even if the SIR states that award may be made on initial offers. Therefore, the SIR should include the appropriate provisions notifying the offerors that the FAA retains this option.

          (4)           Current Versus Older Performance. The age of the performance being evaluated may be weighted so that performance on older contracts receives less weight than performance on more recent contracts. More weight may be given to those evaluations on prior FAA or federal contracts as opposed to contracts with states/local governments or private parties or to prior contracts of a similar nature to the SIR.

          (5)           Method of Scoring. The final past performance rating may be reflected by a color, a number, adjectival, or a combination of these methods, depending upon what system is being used overall to indicate the relative ranking of the offerors. A past performance rating is not a precise mechanical or scientific process and must include sound business judgment. Therefore, the documentation of the final rating should include a logical description of the underlying reasons for the conclusions reached.

          (6)           Evaluating Disputed/Negative Information. When the IPT/PT receives negative information, or information that is disputed, the IPT/PT should carefully consider the offeror’s response and determine what weight to apply, based on the facts obtained from the questionnaire, interview, or other sources. The file should be documented to explain why the IPT/PT assigned a particular rating. This is especially important in situations involving unresolved disputes.

d.    Obtaining Information on an Offeror’s Past Performance.

          (1)           Applicability. There are various methods of obtaining information on a contractor’s past performance.

          (2)           Reference Checks. The most commonly used method of obtaining past performance is to conduct reference checks from a variety of sources, including previous FAA program and contracting personnel, other federal agencies, state and local governments, and commercial contractors.

          (3)           Other Sources. Dun & Bradstreet has the capability to obtain information on past performance on specific contractors for the FAA at a cost identified in the Federal Supply Schedule under contract number GS-22F-9614D. In lieu of the FAA paying for the report, the SIR may require offerors to provide a copy of a recent past performance report prepared by Dun & Bradstreet. In this case, the offerors would see the report and have an opportunity to resolve any disputed data before the report is submitted to the FAA. Using this process could save time and money, but should not be relied on as the only source of data. Quality certifications and awards can also serve as a useful source of past performance information.

          (4)           Timetable. The process of collecting information should begin as soon as the proposal evaluation commences to prevent delays in the selection process. The collection of information can be time consuming inasmuch as researchers must locate and question sources of information, either in person, by telephone or in writing. Obtaining this information as early as possible in the evaluation process gives the IPT/PT invaluable information in determining the viability of the individual offerors. In addition, if the information shows a history of poor performance, the IPT/PT can eliminate the proposal from the competition as non-responsible. It may be best to establish a team devoted entirely to this task during the screening, especially if the FAA anticipates receiving a large number of proposals.

          (5)           Questionnaire or Survey Form. The first step in obtaining information from sources is to develop a questionnaire, or survey form, which reflects the evaluation rating system that will be used to assess the offerors strengths and weaknesses for the contract being considered. Questions should be worded so that interviewees understand precisely what they are being asked to describe. In order to maintain accurate records and facilitate verification, the questionnaire (survey) record form should include: Interviewer’s name, company name, reference’s name (to be held in confidence), full mailing address and telephone number, date and time of the call, and description of the contract effort discussed. Examples of questionnaires suitable for a contract requiring system development and production are provided in Appendix Sample 4. A sample Business Management Past Performance Questionnaire is included in Appendix Sample 3A.

          (6)           Information CollectionInformation Collection. Once the questionnaire is prepared, references should be contacted. For all interviews, the questions should be stated to the interviewees exactly as on the questionnaire. There are various ways to collect the information: Face-to-face interviews, mailing the questionnaires to the references, telephone interviews using the questionnaire, using interactive electronic mail (ensuring security measures are taken), and using some combination of the above.

          (7)           Number of references. At least two references should be contacted on each previous contract effort. As pointed out in Chapter 3, this should be specified in the instruction to offerors. Additional references may often be identified during the interviews. It is also important to survey reasonably large numbers of references in order to look for patterns in their description of performance - individual ratings may be personal and biased. Numerous ratings can show patterns and are therefore much more likely to be a valid indicator.

          (8)           Setting Up Interviews Setting Up Interviews. Being well organized and efficient is important when conducting the interview so as not to waste the interviewee's time. It is helpful to call the reference to make an appointment to conduct an interview, rather than telephoning the references unannounced, thereby catching them unprepared or with little time to respond. If possible, the questionnaire should be mailed or faxed to the reference in advance of the appointment. Interviewers should take copious notes on the questionnaire to ensure that all information is captured. Tape recording is a good means for capturing all of the conversation, however, tape recording the conversation may cause the interviewee discomfort and reduce the amount of information provided. If tape recording is used during the interview, ensure the interviewee is aware of and agrees to the use of recording devices.

          (9)           Conducting Interviews. Evaluators should look for patterns of either favorable or unfavorable overall performance, rather than focusing on individual successes or failures. It is important to look for actions that demonstrate high performance and not just unfavorable performance. This will help to get away from the old responsibility determination mode of just looking at performance problems. There appears to be a tendency for references to give an upward bias to ratings. Therefore, the interviewer should ask enough questions to discriminate between "good" and "excellent." Evaluators should request any existing documentation in support of excellent or negative findings (i.e., correspondence, modifications, determinations, etc.). Investigating negative findings in-depth prior to presenting them to offerors, in discussions if held, will alleviate unnecessary delays. Prior to concluding the interview, the evaluator should ask the reference for a summary opinion, e.g., how would the interviewee rate the contractor's overall performance and would the interviewee like to do business with the contractor again?

          (10)           Concluding Telephonic and Face-to-Face Interviews. Immediately following a telephonic or face-to-face interview, the interviewer should prepare a narrative summary of the conversation and send it to the reference for verification, preferably by certified mail, return receipt requested, fax, or electronic mail. (This can be the questionnaire as filled in by the interviewer.) The narrative should state explicitly that if the reference does not object to its content within the time specified, it will be accepted as correct. If the reference indicates that the narrative is incorrect, then a corrected narrative should be sent for verification. If a reference will not agree to the record and satisfactory corrections cannot be agreed upon, the record cannot be relied upon and should not be included in the offeror's rating. Another source may provide the same information, however.

          (11)           Mailing Questionnaires. If mailing questionnaires is the chosen method for collecting past performance information, mail the questionnaires to the references, provide a time-frame for return of responses, and wait for the responses. If mailed questionnaires are not received in a timely manner, follow-up telephone interviews are suggested. (Following guidance above if telephonic interview occurs.)

e.    Past Performance Data Base for Ongoing Efforts.

          (1)           NIH Contractor Performance System (CPS). ASU-100 will serve as the FAA liaison to NIH. The CPS will contain performance information on current and previous federal contractors. In general, evaluations should be completed for complex procurements and any procurements identified by the IPT/PTs. These records are for the use of IPT/PTs in screening offerors and assessing the probability of success based upon the offeror’s past record as an FAA contractor. Upon request, the FAA may also supply past performance information to personnel of other government agencies that are evaluating offerors who have performed on FAA contracts (see B.9., Release of Information). _{(Revised 10/2002)}

          (2)           Sample Contractor Performance Report. Included as Appendix Sample 3B is a sample Contractor Past Performance Questionnaire. The description of the sub-factor may also be helpful in preparing questionnaires for verifying source selection information. This form is not intended to represent the only method for evaluating a contractor’s performance on an FAA contract. IPT/PTs that believe other mechanisms would permit more cost-effective evaluation of contractor performance are encouraged to pursue them.

          (3)           Creation and Disposition of Records. Evaluations should be prepared at the completion of contract performance and annually by the anniversary date of the contract, and, if appropriate, after a significant event on a contract or a change in program management or Contracting Officer. Evaluations should generally be prepared by the IPT/PT. The evaluations should be shared with the contractor, and the contractor should be permitted to provide written comments. IPT/PTs should review and resolve contractor’s comments, if requested, by the contractor. Copies of the evaluation, the contractor's response, and review comments, if any, should be marked as "source selection information" and retained the contract file. A summary of evaluation information should be entered into the CPS for future reference. As use of the CPS become common throughout the FAA, SIRs will need only to ask offerors to provide a list, in the proposal, of past contracts that they have performed that were similar to the potential contract. The need for a section in the proposal on the offeror's past performance may not be necessary. Evaluation files from CPS government references will provide much, if not all, of the information necessary to evaluate the offeror on past performance.  The need for IPT/PTs to conduct extensive interviews with the contract administrators, or conduct other investigations to verify a offeror's past performance should be greatly reduced. Because the contractor will have been offered the opportunity to comment on the ratings as they were prepared, further comment in the proposal or during discussions, if held, will usually not be necessary. _{(Revised 10/2002)}

f.    Completion of the Performance Evaluation.

          (1)           Responsibility. The development of the performance evaluation is the responsibility of the IPT/PT. Where the contract provides products or services to end users (persons outside the requiring technical organization), the contract’s administrator is responsible for conducting surveys of these customers and including a summary of the end user ratings in the performance evaluation. This is referred to as the Report Card System on past performance.

          (2)           When to Perform Surveys. End user surveys would apply to computer services contracts, major systems maintenance contracts where work is done in the field, routine services contracts such as janitorial or food service, as well as contracts where products are delivered directly to various sites or where performance cannot be measured until the product is used. Evaluations are required at the time the work under the contract is completed, or work is terminated for convenience or default, or when a decision is made by the IPT/PT not to extend the terms of the contract based upon performance issues. Performance evaluations should be conducted during the contract period of performance in order to provide useful feedback to contractors on their performance and to provide them the opportunity to correct problems before contract completion. The contract file should reflect efforts on the part of the government to provide the contractor with the results of these evaluations. An honest discussion of any contractor problem areas is important to the government which is seeking quality service and equally, if not more so, to the contractor.

g.    Rating Areas.

          (1)           The sample Contractor Past Performance questionnaire in Appendix Sample 3B may be used by IPT/PTs for evaluating contractors performing on FAA contracts. The description of the sub-factors may also be helpful in developing questionnaires to evaluate past performance during the source selection process. The following areas are some examples of areas to be rated for past performance: Quality, timeliness, cost control, business practices, customer satisfaction, key personnel, and awards and recognition.

          (2)           As pointed out earlier, these are the basic induce of past performance, but other factors such as management of subcontractors or software development capability may be important discriminators for certain contracts.

          (3)           Quality, Timeliness, and Cost Control. Three of the areas, quality, timeliness and cost control, can be rated objectively by members of the IPT/PT. The ratings should reflect how well the contractor complied with the specific contract performance standards for each area. How well the contractor holds up its end of the bargain can, and should, be an essential consideration for future business consideration. The comments should be concise, but provide answers to questions about the performance that would be asked by an evaluator. Here are a few examples:

          (4)           Business Practices. Business practices should be evaluated to measure the contractor's customer relations efforts as well as how well the contractor worked with the Contracting Officer and technical representative(s). It is important to note that when dealing with the FAA, there is more than one customer. Accordingly, this rating area evaluates the business practices between the contractor and the contract administration team. This rating should be developed by the IPT/PT. Questions to ask might be as follows:

          (5)           Customer Satisfaction. Customer satisfaction measures the interface with the ultimate end user of the product or service, e.g., the Personal Computer user who needs assistance under a computer services contract, or the person who uses a supply item to complete their work. A contract cannot be considered a success unless the end user is satisfied. After all, support of the end user is the reason for every contract. Accordingly, effort should be made to ascertain whether each customer was satisfied, for satisfaction by one does not necessarily mean satisfaction by all. The best way to measure contractor performance at the end-user level is the customer satisfaction survey. The quality assurance plan prepared to administer a contract should contain the procedures for receiving customer feedback on contractor performance. This can be done through telephone calls by the Contracting Officer Technical Representative (COTR), use of written survey forms, complaint boxes in strategic locations, or other means of measuring end user satisfaction. If it is not cost effective to survey all end users, then a random sample should be selected for the survey. If the IPT/PTs does not have resources, they may be conducted through contracted services. End-users may be unfamiliar with the contract requirements and may hold contractors to an unrealistic standard. The Contracting Officer should evaluate the end users comments to determine if the contractor reasonably tried to meet their demands within the contract requirements. If the contractor met or exceeded contract requirements in an attempt to please the end users, this should be noted on the evaluation form, even if the end users were not totally satisfied with the service. In this case, it may well be that the service for which the FAA has contracted is not the service desired or needed by the customer. An evaluation of the contract requirements should be undertaken with input from the end users. However, IPT/PTs are reminded that FAA does not have any right to require, explicitly or implicitly, or expect benefits not agreed to in the contract. It does mean, however, that "service with a smile" is more than a slogan. A proven rating system for end user satisfaction measures the percentage of end users that rate the product or service satisfactory or better. It should be recognized that no product or service could satisfy everyone. Therefore, an excellent rating may be 95 percent of end users were satisfied with the service.

          (6)           Key Personnel. Identifying how long key personnel stayed on the contract and how well they managed their portion of the contract can be of great benefit to source selection officials. This information is critical when a newly formed company is bidding on a contract and its past performance history is based on the past performance of the key personnel. Key personnel past performance looks at the track record of the principal individuals selected to manage and perform other key aspects of the work on the contract. When firms in the commercial world make decisions about which contractor, consultant, or firm to deal with, they place heavy emphasis on (1) the past performance of the company as a whole and (2) how well the firm's employees have performed. Often, a company will choose to work with the same contractor based solely on the past performance of its employees. Similarly, the past performance of the key management personnel to be assigned to a contract should be looked at as an indicator of how well the contract will be performed. For new companies entering the marketplace, without relevant company experience, it will be the quality of the past performance of their key management personnel that will indicate the risk of good performance and become the basis of the past performance evaluation.

          (7)           Quality Awards and Certifications. The private sector is increasingly establishing partnerships with suppliers and customers to insure continuous improvement in the quality of the end products and services. Many world-class organizations are creating supplier relations that add value. Toyota requires all of its suppliers (and their suppliers) to apply for the Deming Quality Award. Ford and the other US auto companies have followed suit -- Ford's Q1 certification is widely recognized as signifying a high-quality supplier. Other private sector certifications that are widely admired include those of Xerox and Honda of America Manufacturing. Many companies that are winners of the Baldridge Award for their quality programs require their suppliers to apply for the Baldridge Award. The Baldridge Award (named for former Commerce Secretary Malcolm Baldridge) measures companies' progress on a number of quality goals. The company or division must provide evidence that they incorporate quality into management practices; work closely with suppliers, train workers in quality techniques and meet customers' desires. The President's Quality Award as well as agency-specific awards (e.g., within the Air Force) is modeled closely on the Baldridge Award. Several federal agencies have Blue Ribbon Programs built on the premise that past on-time and high-quality performance predicts future performance. The International Standards Organization has proposed a series of quality standards (ISO 9000 series) that are being widely adopted, particularly by nations of the European Community. U.S. industry associations are beginning to use the ISO 9000 series as a baseline for developing US certification programs. Because the ISO standard does not require that organizations be constantly improving their process, it makes an incomplete basis for judging the quality of an organization's process. In seeking past performance information, IPT/PTs are encouraged to ask offerors about any quality certifications or awards. How quality certifications are evaluated is at the discretion of the IPT/PT. A sample evaluation plan for evaluating this sub-factor is provided below.

Note: This is for illustrative purposes only and is not intended to indicate a preferred rating system:

h.    Contractor Response and IPT/PT Review.

          (1)           While the ultimate conclusion on the performance evaluation is a decision of the IPT/PTs, the contractor should be permitted to comment on the evaluation. Upon completion of any evaluation by the IPT/PT and submission to the Contractor Performance System (CPS), registered contractors will receive an electronic notice. Contractors must be CPS registered prior to receiving electronic evaluations. The contractor should be given a reasonable time to respond to the report. The required turnaround time for contractor response may not be less than thirty days. If the contractor fails to provide a response by the established deadline, IPT/PTs’ comments can stand alone. _{(Revised 10/2002)}

          (2)           If the contractor submits a rebuttal statement for any or all of the ratings and an agreement on the ratings cannot be reached by the contractor and the Contracting Officer, the disagreement should be resolved by the IPT/PT. The IPT/PT decision resulting from the review must be in writing and done in a timely manner. The contractor's statement and IPT/PT review must be attached to the performance evaluation report and must be provided to other parties requesting a reference check.

          (3)           The completed evaluations are to be filed in the contract file and the CPS. The evaluations will be retained in the CPS for not more than three years after completion of contract performance. _{(Revised 10/2002)}

         (4)           When another agency asks for a reference, the responsible IPT/PT or Contracting Officer should provide all evaluations, extracted from the database, for the period desired by the requesting organization.

i.    Release of Information. Contractor evaluations may be used to support future award decisions. The completed evaluation shall not be released to other than FAA evaluators, other government personnel authorized to receive such reports, and the contractor whose performance is being evaluated. Improper disclosure of such information could cause harm both to the commercial interest of the FAA, and to the competitive position of the contractor being evaluated, as well as, impede the efficiency of FAA operations.

3.    Construction Contracting _{(Revised 01/2002)}

          (1)           Guidance in this section applies to construction contracts, contracts for dismantling, demolition, or removal of improvements, and to the construction portion of contracts for products or services. In the event that the portions of multipurpose contracts are so commingled that priced deliverables for construction, service, or supply cannot be segregated, the FAA guidance applicable to the predominant purpose should be followed.

          (2)           "Construction" means construction, alteration, or repair of buildings, structures, or other real property. For purposes of this definition, the terms "buildings, structures, or other real property" include but are not limited to improvements of all types, such as maintenance facilities, utilities, duct banks, air traffic control facilities, communication towers, radar facilities, office facilities, airport facilities, and navigational aids.

          (3)           The Davis-Bacon Act applies to construction contracts valued in excess of $2,000.

          (4)           Generally, construction should be acquired on a firm-fixed price basis. Pricing may be on a lump sum basis (when a lump sum is paid for the total work or defined parts of the work), on a unit price basis (when a unit price is paid for a specified quantity of work units), or using a combination of the two.

          (5)           When performing contract work in FAA-leased space, the Contracting Officer (CO) should consult with their real estate specialist to determine FAA’s alteration rights and responsibilities.

          (1)           If a contract is solely for dismantling, demolition, or removal of improvements, the Service Contract Act applies if the contract will exceed $2,500 unless further work which will result in the construction, alteration or repair of a public building or public work at that location is contemplated. If further construction work is intended, even though by separate contract, then the Davis-Bacon Act applies to the contract for dismantling, demolition, or removal.

          (2)           The integrated product team (IPT/PT) should consider the usefulness to FAA of all salvageable property. Any of the property whose usefulness to FAA exceeds its value as salvage to the contractor should be expressly designated in the contract for retention by FAA. The contract may provide that:

                    (a)    The FAA pays the contractor for the dismantling or demolition of structures;

                    (b)    the contractor pay FAA for the right to salvage and remove the materials resulting from the dismantling or demolition operation; or

                    (c)    A combination of both. Care should be taken to ensure compliance with environmental laws and regulations, including handling of hazardous waste.

          (3)           The IPT/PT should determine the fair market value of any property not to be retained by FAA, since the contractor will receive title to this property. Its value will therefore be important in determining what payment, if any, should be made to the contractor, and whether additional compensation will be made if the contract is terminated. Personal Property Managers, in conjunction with the IPT/PT, must approve the disposition of Government property to be transferred to contractors under dismantling, demolition or removal of improvements contracts.

c. State Regulation of Federal Construction Projects.

          (1)           FAA contractors may encounter requests from State and local governments for the FAA’s contractors to obtain building permits, zoning approval, sanitation approval, etc.. Based on the "supremacy" clause of Article 6 of the United States Constitution, construction contractors are not required to obtain permits or approvals for work done under government contracts on government projects. The States have enforcement authority for safety and environmental protection as specified by the Occupational Safety and Health Administration (OSHA), the Comprehensive Environmental Response, compensation and Liability (Superfund) Act (CERCLA), and the Resource Conservation and Recovery Act (RCRA).

          (2).           Contractors which encounter attempts by State or local government entities to assess various types of fees should be advised of FAA’s position as noted above. The Contractor should be advised to inform the CO immediately if the assessing entity attempts in any way to prevent or hinder the contractor at the job site. The CO should seek legal advice from the cognizant legal counsel.

d.    Local Employment in Construction Contracts. Occasionally, efforts are made by State or local governments to have FAA limit employment on construction projects to local residents or firms. Such a restriction has been held to be improper, and should not be used in FAA contracts (reference Washington State Supreme Court case Laborers Local Union No. 374 v. Felton Construction Co., Nov. 24, 1982, and 42 Comp. Gen. 1, B-198952, 81-1 CPD 467). FAA recognizes that Tribal Employment Rights Ordinances (TERO) which affect projects on or near certain Indian reservations may have an affect on contractor labor. FAA should inform offerors of the existence of a TERO in the screening information request (SIR).

e.    Disclosure of the Size of Construction Projects. When the estimated price of the proposed construction project is $100,000 or more, public announcement (if required) and SIRs should state the size of the requirements in terms of physical characteristics and estimated price range. The estimated price may be described in a price range as determined by the IPT/PT or in terms of one of the following price ranges:

          (1)           Liquidated damages clauses should be used only when: (1) the time of completion or performance is such an important factor in the award of the contract that FAA may reasonably expect to suffer damage if the completion or performance is delinquent; and (2) the extent or amount of such damage would be difficult or impossible to ascertain or prove. In deciding whether to include a liquidated damages provision in a contract, the IPT/PT should consider the probable effect on such matters as pricing, competition, and the costs and difficulties of contract administration.

          (2)           When administering contracts which include liquidated damages, the CO should take all reasonable steps to adequately warn contractors of the pending assessment when concern of late completion develops. If a basis for termination for default exists, the CO should advise the contractor that the liquidated damages which may continue to be assessed would be damages that may be collected in addition to any re-procurement costs. If completion or performance is desired after termination for default, efforts must be made to obtain the completion or performance elsewhere within a reasonable time.

          (3)           The rate of liquidated damages used must be reasonable, and must be considered on a case-by-case basis, since liquidated damages fixed without any reference to probable actual damages may be held to be a penalty, and therefore unenforceable. The liquidated damages rate should be determined by the IPT/PT, but should, at a minimum, cover the estimated cost of contract administration, including inspection, for each day of delay in completion. In addition, other specific losses anticipated to be incurred as a direct result of the failure of the contractor to complete the work on time should be included. Examples of specific losses are:

          (4)           When the "Liquidated Damages" clause will be included in the contract and different completion dates are specified in the contract for separate parts or stages of the work, the CO may revise the clause to state the amount of liquidated damages for late completion of each part or stage of the work. Separate calculation and documentation of the estimated damages should be developed for each amount specified with a differing basis.

g.    Inspection of Site and Examination of Data.

          (1)            The IPT/PT should make appropriate arrangements for prospective offerors to inspect the work site prior to submission of offers. The IPT/PT should also afford prospective offerors the opportunity to examine data in the possession of FAA which may provide information concerning the performance of the work, such as boring samples, original boring logs, geology reports, and record and plans of previous construction. The SIR should notify offerors of the time(s) and place(s) for the site inspection and data examination, as well as the name and telephone number of the contact point at the facility. A record should be kept of the identity and affiliation of all offerors’ representatives who inspect the site or examine FAA site information.

          (2)           Significant site information should be made available to all offerors, including information regarding any utilities to be furnished during construction. During FAA guided site tours, care must be taken not to provide information contradictory to the SIR. All potential offerors are to be advised of any clarification or correction to the SIR package.

h.    Preconstruction Conference. The CO may conduct a preconstruction conference (to discuss matters such as labor standards, authority of various personnel, safety, and environmental considerations) when a construction or demolition contract is contemplated. Pre-construction conferences are not a requirement for each project. When deciding on a conference, the CO should weigh the administrative costs, time, and possible travel expenses for all parties involved, against the complexity of the requirement, the impact of the requirement on entities involved with the site, and the past performance and technical knowledge of the contractor.

i.    Differing Site Conditions. The purpose of the "Differing Site Conditions" clause is to encourage offerors to limit inclusion of contingency costs in their offers for conditions which are not reasonably foreseeable. The clause will also assist FAA and the contractor in complying with the Archaeological Resources Protection Act of 1979 (36 CFR 1214).

j.    Use and Possession Prior to Completion. Beneficial occupancy occurs when the Government takes possession of, or puts to use, a completed or partially completed part of the work. It does not constitute acceptance. The clause "Use and Possession Prior to Completion" addresses some of the issues associated with beneficial occupancy. If it is foreseen prior to contract inception that beneficial occupancy will become an issue, or if it becomes an issue during contract performance, the CO should consider negotiating contract terms which cover relevant issues for that contract, e.g., date of warranty, builder’s risk coverage, coordination with the contractor, etc. Legal counsel should be consulted on the legal ramifications of beneficial occupancy. Phased (partial) acceptance can be used as an alternative to beneficial occupancy, if the need can be identified sufficiently in advance to structure the contract accordingly, and it is determined in the best interests of the parties.

k.    Performance of Work by the Contractor. The CO should assure adequate interest in and supervision of work involved in projects. The contractor should be required to perform a significant part of the contract with its own work force and express this requirement in terms of a percentage of the total work.

l.    Assignment of Performance Inspection and Contract Administration.

          (1)           Due to the locality and complexity of most construction projects, Contracting Officers often accomplish their administrative and inspection functions through utilization of Contracting Officer’s Technical Representatives (COTRs), or Resident Engineers (REs). These personnel are normally present at the job site each day, and are in the best position to observe day-to-day activities and performance. COTRs and REs on site perform such delegated duties as daily performance inspections, Department of Labor Wage Rate interviews with contractor personnel, provide minor clarifications of specifications and drawings, and insure contractor compliance with all safety and labor requirements on site. The duties of these individuals should be clearly annotated by the CO in a designation letter. A copy of the designation letter is provided to the COTRs, REs, and the contractor. A sample designation letter may be found in the procurement toolbox  "Contract Administration" section.

          (2)           Only the CO or persons delegated specific authority to execute contract modifications may authorize a change to the original contract. Due to the nature of construction contracts, the CO may find it beneficial for their field representative to have a delegation of change order authority. Requiring office personnel may receive delegation of specific dollar amounts to be used while assigned to construction sites; however, it is the decision of the Chief of the Contracting Office for each individual project to authorize the use of such authority by their field representative during the course of the contract. Consideration should include the likelihood of minor changes within the statement of work, the need for minor changes due to emergencies, and the complexity of the project. Other changes such as changes to the intent of the contract and those for which equitable adjustment cannot be quickly determined to be fair and reasonable, should only be initiated by the CO. In instances where field change order authority will be delegated, the CO should include a clause in the contract outlining the delegation dollar limits, and scope of authority.

The CO, with the concurrence of the IPT/PT, may cancel a SIR at any time during the solicitation process. Notification of the cancellation by the CO may be made using the same mechanism as the initial or subsequent SIRs. The CO will document the cancellation for placement into the official contract file.

5. Section 508 of Rehabilitation Act _{(Revised 07/2001)}

a Definition. _{(Revised 07/2001)}

b. Requirements for Accessibility. _{(Revised 07/2001)}

Section 508 of the Rehabilitation Act of 1973 specifies that persons with disabilities that are either Federal employees or members of the public seeking information or services from a Federal department are to have the access to and use of information and data comparable to the access and use of the information and data by Federal employees who do not have disabilities. Section 508 is applicable when using contract awards, task orders, delivery orders, orders under Government-wide Schedules and Interagency Agreements. The IPT/PT will insert Section 508 requirements into SIRs that include the development, purchase, maintenance, or use of electronic and information technology unless such requirement imposes an undue burden on the FAA (see c. "Alternative Means" below). Inserting these requirements will assure that electronic and information technology is accessible and useable to groups identified in Section 508.

c. Alternative Means. _{(Revised 07/2001)}

When application of the requirements of Section 508 (see b "Requirements for Accessibility" above) would impose an undue burden, the FAA may provide individuals with disabilities covered by Section 508, the information and data involved by an alternative means of access that allows the individual to use the information and data. Contracting Officers determine the acceptability of "Undue Burden Rationale".

6. Spare Parts _{(Added 01/2002)}

a. Shipping Spare Parts. For all shipments of spare parts, the contractor should include a packing list that includes at least the noun name, part number, Commercial and Government Entity (CAGE) Code, quantity, unit price, and national stock number (if available). Contracts that require shipment of spare parts should include Clause 3.2.2.3-73 to establish this contractual requirement.

b. Spare Parts for Nationally Furnished Project Materiel.

7. Responsibilities _{(Added 07/2002)}

The responsibilities listed below are intended to be guidelines to ensure a successful evaluation by the IPT/PT. The IPT/PT must apportion these responsibilities to fit the needs of specific procurements (and IPT/PTs).

a. Source Selection Official. The SSO has full responsibility and authority to select the source(s) for award. The SSO’s responsibilities are to:

b. Integrated Product Team/Product Team. The IPT/PT is responsible for the proper and efficient conduct of the source selection process. The IPT/PT’s responsibilities and duties are to:

c. Contracting Officer. The CO’s responsibilities and duties are to:

d. The Integrated Product Team/Product Team Leader. The IPT/PT Leader’s responsibilities and duties are to:

e. Advisors. Advisors may be appointed by the IPT/PT to provide specific guidance to the IPT/PT when their essential specialized expertise is not available within the IPT/PT.

f. Nongovernmental Evaluators and Advisors. Nongovernmental personnel may be used as evaluators and/or advisors, and shall be subject to the conflict of interest and disclosure of information policies stated herein. Notice of any nongovernmental participation will be provided in the SIR. The IPT/PT must apportion these responsibilities to fit the needs of specific procurements (and IPT/PTs).

8. Supplier Process Capability Evaluation and Appraisal _{(Added 07/2003)}

f. Contract/agreement requirements. Considerations in developing contract/agreement requirements include use of trade-off analysis to establish the level of surveillance of strong or weak areas. For example, if a supplier is strong in an area, it is inefficient to check on that area in the same way that would be applied in an area found to be weak. Additional Award fees may also be used as an incentive. Contract/Agreement performance requirements include completion of initiatives to remove critical deficiencies identified. Completion may be a factor in award fees. Depending on the decision of the SSO, contract requirements may include:

1. Risk mitigation plans to remove deficiencies noted during pre-award.

2. Performing scoped post-award and follow-up appraisal(s).

3. Risk mitigation plans to remove deficiencies noted in post-award appraisal.

4. Government "surveillance" for specific areas (weaknesses) to be addressed .

5. An adequate reporting or insight mechanism to facilitate monitoring the risk mitigation plan.

6. Consideration for creating additional process strengths.

7. Improvement in performing process improvement activities.

Risk mitigation planning describes in detail the schedule and actions that will be taken to remove deficiencies noted during the evaluation and selection process and those uncovered in the appraisal process, if a post award appraisal is performed.

g. Additional Resources. Appendix II contains additional instructions, sample language for the SOW and SIR and other references for supplier process capability evaluation and process improvement appraisals.

B. CLAUSES See FAST Procurement Toolbox for applicable clauses.

C. FORMS See FAST Procurement Toolbox for applicable forms.

D. APPENDIX _{(Revised 07/2003)}

SAMPLE 1 - PAST PERFORMANCE INSTRUCTIONS