DoD Proposes Rule on Evaluation of Joint Venture Past Performance for Construction and A&E Services Contracts

On May 20, 2021, the Department of Defense published a proposed rule to implement section 823 of the National Defense Authorization Act for Fiscal Year 2019, regarding inclusion of best available information regarding the past performance of first-tier subcontractors and of individual partners on construction and architect-engineer (A&E) contracts.  The proposed rule would add one new solicitation provision and two new contract clauses.

The two new proposed contract clauses provide for a contracting officer’s performance evaluations of:

• Individual partners of joint ventures for construction and A&E services contracts with an estimated value in accordance with the threshold set forth in FAR 42.1502(e), currently $750,000; and
• 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% 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 provision to be used in solicitations for construction and architect-engineer services requires the contracting officer to 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.