Corrections to the proposed rewrite of FAR 42.1503 reinstate the contractor’s role in past performance evaluations. As published on June 28, 2011, the rewritten FAR provision omitted language from the existing clause that protects the contractor’s interests in the process. As corrected on August 9, the contractor protections have been restored.
The language that appeared in the June 28 proposal required only that the agency provide the contractor with a copy of past performance evaluation after it is completed:
(d) Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. See 76 Fed. Reg. 37704 (June 28, 2011) [pdf].
The corrected language published on August 9, 2011 incorporates the contractor protections from the existing FAR 42.1503, simply moving them from existing paragraph (b) to a new paragraph (d). In addition to providing for the confidentiality of past performance information, the corrected language confirms the contractor’s right to respond to and appeal a past performance evaluation above the level of the contracting officer:
(d) Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation. Contractors shall be given a minimum of 30 days to submit comments, rebutting statements, or additional information. Agencies shall provide for review at a level above the contracting officer to consider disagreements between the parties regarding the evaluation. The ultimate conclusion on the performance evaluation is a decision of the contracting agency. Copies of the evaluation, contractor response, and review comments, if any, shall be retained as part of the evaluation. These evaluations may be used to support future award decisions, and should therefore be marked ‘‘Source Selection Information’’. . . . . The completed evaluation shall not be released to other than Government personnel and the contractor whose performance is being evaluated during the period the information may be used to provide source selection information. Disclosure of such information could cause harm both to the commercial interest of the Government and to the competitive position of the contractor being evaluated as well as impede the efficiency of Government operations. Evaluations used in determining award or incentive fee payments may also be used to satisfy the requirements of this subpart. A copy of the annual or final past performance evaluation shall be provided to the contractor as soon as it is finalized. See 76 Fed. Reg. 48776 (Aug. 9, 2011) [pdf].
The deadline for comments on the proposed rule has been extended to September 8, 2011. Our discussion of the June 28, 2011 proposal is available here.