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FAR RIN: 9000-AO28 Publication ID: Spring 2023 
Title: Federal Acquisition Regulation (FAR); FAR Case 2021-011, Past Performance Ratings for Small Business Joint Venture Members and Small Business First-Tier Subcontractors 

DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement the statutory requirements at 15 U.S.C. 644(e)(4)(B)(i) and 15 U.S.C. 644(q)(1)(B) as implemented by the Small Business Administration (SBA) final rule published on October 16, 2020 (85 FR 66146). The statute requires contracting officers to consider the capabilities and past performance of first-tier subcontractors for bundled or consolidated contracts, and to consider the capabilities and past performance of first-tier subcontractors for multiple award contracts valued above the substantial bundling threshold of the Federal agency.  SBA’s final rule also gives contracting officers discretion to consider past performance and experience of first-tier subcontractors for other procurements where the first-tier subcontractors are specifically identified in the proposal where appropriate.

Additionally this rule will implement section 868 of the National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283) as implemented in SBA’s final rule published on July 22, 2022 (87 FR 43731). Section 868 provided two methods for small businesses to obtain past performance: (1) a small business may use the past performance of a joint venture of which it is a member, provided the small business worked on the joint venture’s contract(s), and (2) a small business may use past performance it obtained as a first-tier subcontractor from a prime contractor when specifically identified under a subcontracting plan for the contract. This rule promotes equity in Federal procurement.

Agency: DOD/GSA/NASA (FAR)(FAR)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: 48 CFR 15    48 CFR 19   
Legal Authority: 40 U.S.C. 121(c)    10 U.S.C. ch. 4    10 U.S.C. ch. 137 legacy provisions    10 U.S.C. 3016    51 U.S.C. 20113   
Legal Deadline:  None
Action Date FR Cite
NPRM  11/00/2023 
NPRM Comment Period End  01/00/2024 
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: Federal 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: No 
RIN Information URL:   Public Comment URL:  
RIN Data Printed in the FR: Yes 
Agency Contact:
Carrie Moore
Procurement Analyst
1800 F Street, NW,
Washington, DC 20405
Phone:571 300-5917