2019 NDAA - Past Performance Evaluations for Subcontractors and Joint Venture Partners

Last Tuesday, the Senate passed its version of the Fiscal Year 2019 NDAA (National Defense Authorization Act). Its called the John S. McCain National Defense Authorization Act for Fiscal Year 2019. Now its on to negotiations with members of the House of Representatives to create a compromise bill to send to the President.

Title VIII is the section we are most interested in as it covers "Acquisition Policy, Acquisition Management, and Related Matters. Over the past couple of months, we've discussed various Title VIII provisions included in both the House and Senate versions of the 2019 NDAA. There's no certainty that the two bodies will reach consensus on any of these provisions but there is a strong likelihood that most of them will be preserved - perhaps watered down a bit - but preserved. Many times some of the more controversial provisions end up as a requirement to do more study and write a report. That's the situation with contract disputes. The House wants to limit bid protests while the Senate wants to study whether that is necessary.

Section 816 of the Senate NDAA tries to beef up the availability of past performance evaluations of contractors and subcontractors. It requires FAR changes to ensure that the best information regarding past performance is available when awarding DoD contracts. Specifically it will require performance evaluations, as part of a government-wide evaluation reporting tool, for first-tier subcontractors performing a portion of the contract valued at not less than 20 percent of the value of the prime contract. It will also require past performance evaluations of individual joint venture partners.

The Senate is concerned that some less than satisfactory companies are getting Government work as subcontractors or as members of a joint venture by hiding in the shadows of never having their past performance evaluated or passed up to the people awarding Government contracts.