CONTRACTOR QUALIFICATIONS
Part 9
SUBPART 9.1 - RESPONSIBLE PROSPECTIVE CONTRACTORS
9.104-1 General standards.
9.104-70 Solicitation provisions.
9.105 Procedures.
9.105-2 Determinations and documentation.
9.106-1 Conditions for preaward surveys.
9.106-2 Requests for preaward surveys.
9.106-3 Interagency preaward surveys.
9.106-90 DLA preaward survey monitors.
9.106-91 Capability surveys for workshops for the blind and other
severely handicapped.
SUBPART 9.2 - QUALIFICATIONS REQUIREMENTS
9.202 Policy.
9.203 QPLs, QMLs, and QBLs.
9.207 Changes in status regarding qualification requirements.
SUBPART 9.3 - FIRST ARTICLE TESTING AND APPROVAL
9.306 Solicitation requirements.
9.307 Government administrative procedures.
9.308 Contract Clauses.
9.390 Compatibility testing
SUBPART 9.4 - DEBARMENT, SUSPENSION, AND INELIGIBILITY
9.404 Parties Excluded from Procurement Programs.
9.405 Effect of listing.
9.405-1 Continuation of current contracts.
9.406 Debarment.
9.406-3 Procedures.
9.406-90 Procedures for debarments based on poor performance.
9.407 Suspension.
9.407-3 Procedures.
SUBPART 9.1 - RESPONSIBLE PROSPECTIVE CONTRACTORS
(c)(90) Assuring that contracts are awarded to responsible prospective contractors necessitates the maintenance of contractor performance history and development of criteria for its use. Occasional quality deficiencies in contractor performance may be unavoidable, but if the defects are of a critical or repetitive nature and the contractor is not amenable to taking corrective action, such circumstances, may constitute support for finding a prospective contractor nonresponsible for award of contracts. Results, both positive and negative, from the System for the Analysis of Laboratory Testing (SALT) program, and other applicable quality history records, such as those from the Quality Evaluation Program (QEP) and from the Customer Depot Complaint System (CDCS), should be included in the contracting officer's determination and documentation of contractor responsibility. Contractor quality performance records will not be limited to product quality deficiencies, but also will include discrepancies due to inadequate packaging, improper or missing documentation, overages, shortages, misdirected or damaged shipments, and similar discrepancies. Individual and summary records of actions taken will be maintained for review by management. If there are overriding reasons for awarding a contract to a supplier who has an unsatisfactory quality history, the contract file will be documented accordingly, and a Quality Assurance Letter of Instruction (QALI) shall be submitted to the activity responsible for Government acquisition quality assurance at source or destination.
(c)(91) Contracting offices will maintain appropriate documentation to facilitate assessment of contractor's recent delivery performance. Contracting personnel should utilize performance data on both currently active and recently closed awards (if available) in responsibility determinations and when considering contractors for placement on the DLA Contractor Alert List (CAL). Absent identifiable positive corrective action, poor past performance indicates poor future performance. Documentation of contractor-caused delinquencies should serve as sufficient evidence to substantiate a nonresponsibility determination. (For procedural consequences of that determination with regard to small businesses, see, generally, FAR 19.6 and DFARS 219.6.) A supplier's repeated refusal to perform purchase orders issued in accordance with small purchase procedures may also be used as a basis for not awarding future contracts. Since inaccuracies in delivery data may occur, performance histories should be reviewed and furnished to the contractor before serious actions are taken. Overall delivery performance data shall be based on ship dates not receipt dates, due to problems in obtaining timely receipt data.
9.104-1(e)(90) Use clause 52.209-9014, Vehicle Registration and Operations, for base
support acquisitions involving installation access to the Defense Logistics Agency
facility located in Richmond, Virginia.
(g)(90) Standards for drugs. The Food and Drug Administration (FDA) has cognizance of all quality aspects of certain medical items (predominantly drugs) in accordance with the DoD-FDA Interagency Agreement on Drugs, dated 17 December 1975. At the request of DSCP, FDA will review the capability of a supplier to produce drugs and biologics of an appropriate quality whenever acquisition by DSCP of such an item is pending. It is within the discretion of the contracting officer to rely upon FDA conclusions regarding the capability of such offerors to meet required quality standards. A determination by FDA of unsatisfactory quality based on regulatory action shall necessitate a mandatory rejection of the offer by the contracting officer.
(90) The "Defense Logistics Agency Contractor Alert List" (CAL) is a monthly listing of suppliers who may require special evaluation before a determination of responsibility can be made. The list is provided to contracting offices by the Defense Contract Management District East (DCMDE) based on input from all Defense Contract Management Districts (DCMDs) and other contracting offices. Suppliers are added to the list when they are recommended for a preaward survey (PAS) by a contract administration office (CAO) for a particular reason. Contracting officers shall consider the DLA CAL as they would other similar data related to contractor performance. Appearance on the list (or any other indication of questionable prior performance, as set forth in 9.106-1(a)(90)(1) through (9)) does not mean a supplier is nonresponsible, but it puts the contracting officer on notice to consider carefully and deliberately the need for additional steps in making a responsibility determination in individual cases. (Any questions pertaining specifically to the Alert data should be directed to the PAS monitor at the CAO that has cognizance over the contractor involved, rather than to the contracting officer.)
9.105-2 Determinations and documentation.
(b) Support documentation. If a preaward survey is not obtained on a proposed award exceeding $100,000, the contracting officer shall include in the contract file a memorandum explaining the basis for the determination of responsibility, addressing each of the applicable standards in FAR 9.104. When the contracting officer makes a determination regarding the prospective contractor's responsibility that is contrary to that recommended in the preaward survey report, the reason for not following the preaward survey report recommendation shall be included in the contract file. In each instance where the preaward survey report recommendation is not followed, the case must be reviewed and concurred in by the chief of the contracting office and at DSCP by the Commodity Business Unit Chiefs.
The contracting officer shall provide written notice to the surveying activity that performed the preaward survey of the reason for not following the preaward survey recommendation.
9.106-1 Conditions for preaward surveys.
(a)(90) Although a formal PAS is not normally requested for acquisitions valued at $100,000 or less, there are circumstances which justify conducting a PAS (formal or informal), regardless of the dollar value of the acquisition under consideration. (An informal PAS is one in which the contracting officer's request for information is able to be fulfilled by a phone call to the CAO component, and may not necessitate contacting the firm or individual in question. A formal PAS, on the other hand, requires, at a minimum, the CAO PAS monitor to conduct a telephone survey, and may require one or more site visits to the prospective contractor's location. A formal PAS always incorporates an informal survey.) Because the survey is the primary means by which the responsibility of some contractors can be determined, its performance is strongly recommended on a prospective contractor (manufacturer or nonmanufacturer) that:
(1) Has been listed on the GSA List of Parties Excluded from Federal Procurement Programs within the past 3 years (or other locally determined time period);
(2) Is (to the extent determinable from local records) a first-time Government contractor, or has had a performance break from Government business of 3 or more years' duration (or other locally determined time period);
(3) Is undergoing or has undergone reorganization under bankruptcy laws within the past 3 years (or other locally-determined time period);
(4) Has been terminated within the past 3 years (or other locally determined time period) for default;
(5) Has negative quality records (PQDRs, RODs, etc.) in the Quality Evaluation Program (QEP), is on the Contractor Alert List (CAL), has a poor Product Verification Record (PVR) as indicated by ICP PVR, or is otherwise known to the contracting officer to have a poor or marginal performance history;
(6) Has, within the past year (or other locally-determined time period), received a negative PAS for any item within the same Federal Supply Class (FSC), or for the same type of service, as the item or service being purchased;
(7) Has failed to liquidate indebtedness to DLA (the extent of the indebtedness that would normally dictate a PAS shall be determined locally);
(8) Is a transferee in interest of a former Government contractor; or
(9) Is the subject of information that is not sufficient on which to base a responsibility determination, or is a current contractor about whom the historical capability data, in terms of productive capacity, quality assurance, financial ability, etc., is unavailable to the contracting officer or is inconclusive.
(a)(91) When an offer received from a prospective contractor described in (a)(90)(1) through (9) above is proposed for award, and the contracting officer decides that actual performance of the PAS is in the best interests of the Government, the contracting officer shall request the survey, and provide the rationale for that request in the "Remarks" section of the SF 1403, Pre-award Survey of Prospective Contractor (General). When a PAS is requested with respect to an offeror described in (a)(90)(1) above, the contracting officer shall identify integrity as a factor about which information is needed and shall ask that the PAS team specifically identify the corrective actions undertaken by the prospective contractor to address the problems that resulted in the contractor's being listed on the GSA List of Parties Excluded from Federal Procurement Programs.
(a)(92) Final determination of the appropriateness of conducting a PAS always rests with the contracting officer. For that reason, this section does not mandate survey performance. Nevertheless, use of the survey is strongly encouraged for those prospective contractors described in (a)(90)(1) through (9) above. If a contracting officer decides not to request a PAS under any of these circumstances, the contracting officer shall document the contract file with the basis for that decision (see 9.105-2).
9.106-2 Requests for preaward surveys.
(90) Generally, a preaward survey shall be requested only when award is contemplated to a firm from which a bid or proposal has been received. However, a preaward survey may be requested of the facilities or firms supplying perishable food items before receipt of a bid or proposal when the time between opening/closing and award would not be sufficient for a survey following receipt of an offer. Concurrent requests for preaward surveys may be made in emergency situations and/or when multiple awards are contemplated. The need to request concurrent preaward surveys will depend upon the circumstances of the individual acquisition. Contracting officers shall obtain the agreement of the appropriate CAO preaward survey monitor prior to the submission of such requests. Although FAR 9.106-2(d) specifies a norm of 7 working days for conducting preaward surveys, except for FDA determinations, contracting offices should provide for the maximum allowable time, particularly if a negative finding is anticipated or a secondary survey will be required. When the contracting office needs a response in less than 7 working days, the surveying activity should be provided with the reason for the expedited survey. Surveying activities should notify contracting officers of survey results by telephone or electronically transmitted message on the day the survey is mailed.
(a) Additional factors would include the need for special facilities (e.g., tools, machines, test facilities) required to produce the item. Failure to liquidate indebtedness indicates a lack of responsibility. Therefore, if it is proposed to contract with firms indebted to DLA, and the proposed contract would otherwise require a preaward survey, an annotation should be made in the "Remarks" section of the SF 1403.
(a)(ii) Evaluation of a contractor as a planned producer will not affect the outcome of the PAS for other than industrial preparedness purposes. Any prospective contractor receiving a negative PAS for production or quality assurance capability with regard to an existing/potential Industrial Preparedness Planning List (IPPL) item should neither be solicited nor enrolled as a planned producer.
(e) Contracting officers shall restrict their requests for preaward survey information to that which is not already available to the contracting office. The contracting officer must determine the scope of the preaward survey to be performed. (Preaward survey requests on sole source suppliers will be limited to partial surveys.) The only factors to be investigated (e.g., production backlog, finances, and quality history) are those which actually affect or indicate the contractor's ability to perform under the contract and for which the contracting officer does not have sufficient knowledge to make a responsibility determination.
(i) When limited information is required, it can often be obtained through telephonic contact with the PAS monitor at the cognizant contract administration office (CAO), precluding the administrative effort associated with a formal PAS request.
(ii) For items assigned to the U.S. Department of Agriculture, the U.S. Department of Commerce, and/or the U.S. Army Veterinary Corps for source inspection, the quality assurance personnel representing the contracting officer, and other military agencies, as deemed necessary, will be requested to participate in the PAS, and their comments will be included in the quality assurance portion of the report.
9.106-3 Interagency preaward surveys.
(b) The list shall be retained with the contract file.
9.106-90 DLA preaward survey monitors.
(a) Each DSC will designate an organizational element to serve as the focal point for preaward surveys and to be the principal point of contact with PAS monitors at surveying activities. The focal point will review PAS requests for completeness and accuracy before forwarding these requests to surveying activities. Upon receipt of completed preaward surveys, the focal point will review the reports and shall consult with available technicians in particular areas, such as Cost and Price Analysts, when there are doubts as to the validity of the information in the survey report. If the PAS contains information questioning a company's quality control, then the survey report shall be reviewed with the DSC Quality Assurance personnel.
(b) A register of all PAS requests and responses, both formal and informal, shall be maintained in a current status by the PAS monitor at each DSC. As a minimum, this register shall include:
(1) PAS or FDA number (to provide an audit trail).
(2) Date of Preaward Survey request. Note: If the request is made by phone and a written report is requested, the SF 1403 must follow by mail on the same day as the telephone request.
(3) Date completed report to be returned (Block 10). (This is the date by which the surveying activity is to mail the completed report.)
(4) Extended date when extension is granted.
(5) Date telephonic or electronically transmitted report is
received by DSC.
(6) Date Preaward Survey report is received by DSC.
(7) Prospective contractor's name and location.
(8) Surveying activity's location.
(9) Solicitation number (RFP/IFB/PR Number).
(10) Buyer or contracting officer name.
(11) Dollar amount of proposed award.
(12) Brief identification of item to be acquired.
(13) Recommended action, whether "A," "P," or "N" (Affirmative, Partial, or Negative).
(14) Remarks. Indicate whether recommendation was overturned, and add any other pertinent comments. (See 9.105-2(b).)
(15) Date of award, if any.
9.106-91 Capability surveys for workshops for the blind and other severely handicapped.
(a) The contracting office, upon request from the Committee for Purchase from People who are Blind or Severely Disabled, shall request a capability survey to determine the capability of the workshop(s) to produce specific items being considered for addition to the Procurement List.
(b) The contracting office, when requesting a capability survey, shall make the request on Standard Form (SF) 1403, Preaward Survey of Prospective Contractor (General). The contracting office should emphasize factors concerned primarily with production capabilities. When a capability survey is being requested, the form shall clearly indicate the request is for a "Capability Survey" only.
(c) The contracting office shall forward requests for capability surveys to the appropriate office, in accordance with DFARS 209.106-2. The contracting office shall furnish a copy of the completed survey to the Executive Director, Committee for Purchase from People who are Blind or Severely Disabled.
(d) Capability surveys will be executed by the cognizant contract administration office in accordance with DLAM 8300.1, Defense Contract Management Agency Industrial Support Manual, Section 1-102(i).
SUBPART 9.2 - QUALIFICATIONS REQUIREMENTS
(a)(1) The chief of the contracting office shall provide to HQ DLA, ATTN: J-72 and J-7, a brief summary of the proposed plan to establish a Qualified Products List (QPL), Qualified Manufacturers List (QML), or Qualified Bidders List (QBL) requirement. Approval by HQ DLA is not required, unless HQ DLA requests a review of the plan. The chief of the contracting office shall approve the establishment of a qualification requirement, subject to the requirements of FAR Subpart 9.2 and after considering any comments of the activity Competition Advocate and the activity Commercial Advocate. When a qualification requirement is proposed for application to an item described by a document that is subject to the Defense Standardization Program, the procedures in DoD 4120.3-M, Appendix B, apply, including the requirement for OASD approval.
9.203(a)(90)
Use 52.209-9000, QPL Connector Assemblies and QPL Electrical Contacts, in solicitations and awards when purchasing QPL connectors with contacts listed on other QPL(s). The purpose of this clause is to increase competition and reduce the unit price of the assembled item. This can be achieved when assemblers are able to pass along cost savings they have realized by purchasing the connector from one QPL manufacturer and the contacts from another.
Use 52.209-9012, Qualified List for Manufacturers/Qualified Suppliers List for Distributors, in solicitations and contracts which have a Qualified Suppliers List for Manufacturers (QSLM) and/or a Qualified Suppliers List for Distributors (QSLD) requirement for the item. There must be an established QSLM/QSLD in place before inclusion of this clause.
Use 52.209-9013, Component QPL/QML Items, with FAR 52.209-1 (I09A01), Qualification Requirements, in all solicitations and contracts that contain component QPL(s)/QML(s).
9.207 Changes in status regarding qualification requirements.
(b) See 11.302-90 for policy regarding notification and assistance to sources removed from an acquisition identification description (AID).
9.290 SOLICITATION PROVISIONS AND CONTRACT CLAUSES FOR AIRCRAFT LAUNCH AND RECOVERY
EQUIPMENT (ALRE)
9.290(a) Ensure the ALRE provision 52.209-9001 is included in the solicitation for all ALRE requirements with an SPC code of “01” and the AMSC is B, C, K, M, N, S, V, or Y.
SUBPART 9.3 - FIRST ARTICLE TESTING AND APPROVAL
9.306 Solicitation requirements.
(c)(1) Insert 52.209-9019, Requests for Waiver of First Article Testing Requirements, in all solicitations and contracts for items that require first article testing, including when acquiring items using FAR Part 12; unless—
(2) Information provided by the Product Specialist in the Material Master, Product Assurance tab, indicates the specification requires submission of drawings for Government approval prior to production of first article test units, in which case insert the following clauses:
(i) 52.209-9019 with its Alternate I; and
(ii) 52.209-9021, Drawing approval prior to production.
(90)(i) When acquiring items that require first article testing (either in accordance with FAR 52.209-3 or 52.209-4) and the dollar value of the procurement is not expected to exceed the simplified acquisition threshold, the clause at 52.209-9015, Waiver – First Article Test – Simplified Acquisitions, may be used if—
(A) One or more sources are identified as having been previously approved for waiver of the first article testing requirements, and the Contracting Officer has confirmed with the Product Specialist that the sources are still eligible for a waiver;
(B) The file is thoroughly documented with the rationale for considering only items produced by sources eligible for waiver of the first article testing requirements; and
(C) The price can be determined fair and reasonable.
(ii) When the clause at 52.209-9015 is used, the contracting officer shall—
(A) Delete from the solicitation any clauses other than 52.209-9015 that reference first article testing; and
(B) Use “Data Maintenance” to—
(1) Delete any reference to first article testing requirements in the Purchase Order Text (POT); and
(2) Free-type the following statement in the POT:
THIS PROCUREMENT IS LIMITED TO CONSIDERATION OF QUOTES FOR ITEMS PRODUCED BY SOURCES
THAT ARE ELIGIBLE FOR WAIVER OF FIRST ARTICLE TESTING REQUIREMENTS (SEE 52.209-9015).
(f)(2) Insert 52.211-9019, Reduced Delivery Schedule Applies When First Article Testing Requirements Are Waived, in all solicitations and contracts for items that require first article testing, including when acquiring items using FAR Part 12.
(i) When FAR 52.209-4 applies and the Government’s estimated testing costs will be used as a factor in evaluating offers, insert the provision at 52.209-9016, Evaluation of Offers – First Article Testing, in solicitations, including when acquiring items using FAR Part 12.
9.308-1 Testing performed by the contractor.
(a) When it has been determined that first article approval is required and the testing will be performed by the contractor, the contracting officer shall follow the policies in 9.308-1(a)(90)-(93):
(90) Pre-solicitation.
(i) Ensure that—
(A) First article inspection and testing requirements are clearly stated;
(B) Sources currently waived for first article testing are identified, or a statement is present indicating there are no waived sources, when the clause at 52.209-9015 will be used (see 9.306(c)(90)(i));
(C) The number of calendar days allotted for the contractor to produce and test the samples is commensurate with the amount of time it will take the contractor to obtain materials, produce the samples, perform all the required tests, and prepare and submit the test report; and
(ii) Use two-party, negotiated acquisition procedures when acquiring items that require first article testing. Micro-purchase procedures and simplified acquisition procedures that solicit and/or award automatically shall not be used.
(91) Solicitation.
(i) (A) Insert the clause at FAR 52.209-3, First Article Approval, with its Alternate I. Complete the fill-ins with information in the Material Master, Product Assurance tab;
(B) Ensure the delivery schedule specified in the solicitation includes the number of calendar days allotted to the contractor for first article testing and submission of the test report; and the number of calendar days allotted to the Government to evaluate the First Article Test Report and provide disposition to the contractor; and
(C) (1) Select the Additive CLIN number for ““Contractor First Article Test (FAT) (including test report).” Insert the Inspection and Acceptance points under the Additive CLIN and in SAP.
(2) Identify the “Contractor First Article Test (FAT) (including test report)” quantity as “1 TE (TEST);” and
(ii) Insert the clauses in solicitations and contracts as prescribed at 9.308-1(a)(91)(ii)(A)-(C) below, including when acquisitions are conducted using FAR Part 12:
(A) 52.209-9017, First Article - Contractor Test – Additional Requirements; with its alternates as prescribed below, when applicable:
(1) Use Alternate I when the product specialist has communicated to the contracting officer that first article approval authority shall be delegated to the Defense Contract Management Agency (DCMA) Administrative Contracting Officer (ACO) whenever awardee will be required to perform contractor first article testing;
(2) Use Alternate II for clothing and textile (C&T) items;
(3) Use Alternate III when the Material Master, Product Assurance tab specifies terms for disposition of approved first article units that differ from the terms in FAR 52.209-3. The contracting officer shall complete the appropriate fill-in;
(4) Use Alternate IV when progress payments are authorized for the first article. Circumstances that justify the need for progress payments (such as when exceptionally high start-up costs are anticipated) and the basis for determining the maximum dollar value and/or percentage of total contract price shall be thoroughly documented in the contract file.
(5) Use Alternate V when the product specialist has communicated to the contracting officer that the item requires in-process verification of the first article manufacture by the cognizant Quality Assurance Representative (QAR).
(92) Evaluation of offers. Review the price offered for the “Contractor First Article Test (FAT) (including test report)” Additive CLIN. The price offered for the Contractor First Article Test (FAT) (including test report) must be determined fair and reasonable, in addition to the price offered for the production units. Evaluation shall be based in part on the terms for disposition of the first article units.
(93) Award of contract.
(i) When award is made for an item that requires “Contractor First Article Test (FAT),” the following requirements apply:
(A) Ensure the appropriate Additive CLIN numbers are established for “Contractor First Article Test (FAT) (including test report)” in the award document; and in SAP, upon funding of the award. Additive CLINs must be established for all FAT requirements (e.g., CLIN 9906, FAT Samples; CLIN 9907, FAT Report; etc.). Whether separately priced or not, a FAT Additive CLIN is a deliverable and must be accounted for. An Additive CLIN that was not separately priced in the quote/offer is still a deliverable, but it is not payable.)
(B) Provide notification by e-mail, including award number, NSN, and Additive CLIN number; and provide copy of award, if not available in Electronic Document Access (EDA), to the contracting officer and to:
(1) For awards issued by Defense Supply Center Columbus (DSCC):
DSCC FAT Monitor
Defense Supply Center Columbus
DSCC-BPI
P. O. Box 3990
Columbus, OH 43218-3990;
(2) For awards issued by Defense Supply Center Philadelphia (DSCP):
(i) Defense Supply Center Philadelphia
ATTN: First Article/Testing Monitor
Bldg. 3 NASA
700 Robbins Avenue
Philadelphia, PA 19111; or
(ii) For acquisitions of Clothing and Textile (C&T) items; Medical and
Subsistence items; and Meal, Ready-To-Eat (MRE) and Tray Pack
Items, the contracting officer, who acts as FAT/Testing Monitor;
(3) For awards issued by Defense Supply Center Richmond (DSCR):
Defense Supply Center Richmond
Test Coordinator Office
DSCR.Test&EvaluationOffice@dla.mil;
(4) For awards issued by Naval Surface Warfare Center, Carderock
Division:
Commanding Officer
Naval Surface Warfare Center
Code 954, BLDG 77L
Philadelphia Business Center
Carderock Division
Philadelphia, PA 19112-5083
ATTN: Long Nguyen
Tel: (215) 897-1146
(5) For awards issued by Naval Sea Systems Command, Washington Navy
Yard:
Commander
Naval Sea Systems Command
Sea 05M3
1333 ISAAC Hull Avenue
SE Stop 5160
Washington Navy Yard, DC 20376-5160
ATTN: John Kallinikos
Tel: (202) 781-3729
(C) Ensure all appropriate documents are placed in the Electronic Contract File (ECF).
(ii) Outline agreements. When awarding outline agreements that include items with first article testing requirements, lock the Service Material line item on the delivery order, to prevent payment of the line prior to receipt of the testing/approval certification; and lock the “FAT” row in SAP.
(iii) When the clause at 52.209-3 was included in the solicitation, and it has been determined that the first article test and approval requirements will be waived for the awardee, the Contracting Officer shall reflect this in the award by taking the following actions:
(A) Insert the clause at 52.209-9020, First Article Testing Requirements Are Waived, in the award; and
(B) Use “Data Maintenance” to—
(1) Delete any reference to First Article Testing in the Purchase Order Test (POT); and
(2) Free-type the following statement in the POT:
FIRST ARTICLE TESTING REQUIREMENTS ARE WAIVED FOR THIS PROCUREMENT.
9.308-2 Testing performed by the Government.
(a) When it has been determined that first article approval is required and the testing will be performed by the Government, the contracting officer shall follow the policies in 9.308-2(a)(90)-(93):
(90) Pre-solicitation.
(i) Ensure that—
(A) First article inspection and testing requirements are clearly stated;
(B) Sources currently waived for Government First Article Testing (FAT) are identified, or a statement is present indicating there are no waived sources, when the clause at 52.209-9015 will be used (see 9.306(c)(90)(i)); and
(C) The number of calendar days allotted for the contractor to produce and deliver the first article units to the Government testing facility is commensurate with the amount of time it will take the contractor to obtain materials, produce the first article units, perform all the required tests, and deliver the first article units to the testing facility.
(ii) Use two-party, negotiated acquisition procedures when acquiring items that require Government First Article Testing. Micro-purchase procedures and simplified acquisition procedures that solicit and/or award automatically shall not be used.
(91) Solicitation. Insert the clauses as prescribed at 9.308-2(a)(91)(i)-(ii) below; with alternates, as applicable:
(i)(A) Insert the clause at FAR 52.209-4, First Article Approval – Government Testing, with its Alternate I;
(B) Complete the fill-ins in FAR 52.209-4 with information in the Material Master, Product Assurance tab; and
(C) Ensure the delivery schedule specified in the solicitation includes the number of calendar days allotted to the contractor to produce and deliver the first article units; and the number of calendar days allotted to the Government to test the first article units and provide disposition to the contractor; and
(D) (1) Insert the Additive CLIN number for “Government First Article Test (FAT).” Insert the Inspection and Acceptance points under the Additive CLIN and in SAP.
(2) Identify the “Government First Article Test (FAT)” quantity as “1 TE (TEST);” and
(ii) Insert the clauses in solicitations and contracts as prescribed below; including when acquisitions are conducted using FAR Part 12:
(A) 52.209-9018, First Article – Government Test – Additional Requirements; with its alternate(s) as prescribed below, if applicable—
(B) Use Alternate I when the product specialist has communicated to the contracting officer that the item requires in-process verification of the first article manufacture by the cognizant Quality Assurance Representative (QAR).
(C) Use Alternate II for Clothing and Textile (C&T) items;
(D) Use Alternate III for Medical and Subsistence items. The contracting officer shall complete the appropriate fill-in in paragraph (a)(2)(ii) with information in the Material Master, Product Assurance tab; or, if no alternative direction appears, mark “Other,” and insert “in accordance with contract terms.”
(E) Use Alternate IV for Meal, Ready-To-Eat (MRE) and Tray Pack Items;
(F) Use Alternate V when the purchase order text (POT) cites that MIL-STD-1525B applies;
(G) Use Alternate VI when the Material Master, Product Assurance tab specifies terms for disposition of the first article units that differ from the terms in FAR 52.209-4. The contracting officer shall complete the appropriate fill-in;
(H) Use Alternate VII when progress payments for the first article units are authorized in the contract. Circumstances justifying the need for progress payments (e.g., when exceptionally high start-up costs are anticipated, etc.) and the basis for determining the maximum dollar value and/or percentage of total contract price shall be thoroughly documented in the contract file.
(I) Use Alternate VIII in requests for quotes when Government first article test requirements apply, and the contracting officer determines its use is appropriate (e.g., if prior quoters for the item are known to have submitted unbalanced quotes in the past, etc.).
(92) Evaluation of offers.
(i) Review the price offered for the “Government First Article Test (FAT)” Additive CLIN. The price offered for “Government First Article Test (FAT)” must be determined fair and reasonable, in addition to the price offered for the production units. Evaluation shall be based in part on the terms for disposition of the first article units.
(ii) If the provision at 52.209-9016, Evaluation of Offers – First Article Testing, was included in the solicitation, the Government’s estimated testing costs shall be used as a factor in evaluating offers.
(93) Award.
(i) When award is made for an item that requires “Government First Article Test (FAT),” the following requirements apply:
(A) Ensure the Additive CLIN numbers are established for “Government First Article Test (FAT)” in the award document; and in SAP, upon funding of the award (e.g., CLIN 9906, FAT Samples; CLIN 9907, FAT Report; etc.). Additive CLINs must be established for all FAT requirements. FAT CLIN is a deliverable and must be accounted for. An Additive CLIN that was not separately priced in the quote/offer is still a deliverable, but it is not a payable.
(B) Provide notification by e-mail, including award number, NSN, and Additive CLIN number; and provide copy of award, if not available in Electronic Document Access (EDA), to the contracting officer and to:
(1) For awards issued by Defense Supply Center Columbus (DSCC):
DSCC FAT Monitor
Defense Supply Center Columbus
DSCC-BPI
P. O. Box 3990
Columbus, OH 43218-3990;
(2) For awards issued by Defense Supply Center Philadelphia (DSCP):
(i) Defense Supply Center Philadelphia
ATTN: First Article/Testing Monitor
Bldg. 3 NASA
700 Robbins Avenue
Philadelphia, PA 19111; or
(ii) For acquisitions of Clothing and Textile (C&T) items; Medical and
Subsistence items; and Meal, Ready-To-Eat (MRE) and Tray Pack
Items, the contracting officer, who acts as FAT/Testing Monitor;
(3) For awards issued by Defense Supply Center Richmond (DSCR):
Defense Supply Center Richmond
Test Coordinator Office
DSCR.Test&EvaluationOffice@dla.mil;
(4) For awards issued by Naval Surface Warfare Center, Carderock
Division:
Commanding Officer
Naval Surface Warfare Center
Code 954, BLDG 77L
Philadelphia Business Center
Carderock Division
Philadelphia, PA 19112-5083
ATTN: Long Nguyen
Tel: (215) 897-1146
(5) For awards issued by Naval Sea Systems Command, Washington Navy
Yard:
Commander
Naval Sea Systems Command
Sea 05M3
1333 ISAAC Hull Avenue
SE Stop 5160
Washington Navy Yard, DC 20376-5160
ATTN: John Kallinikos
Tel: (202) 781-3729
(C) Ensure all appropriate documents are placed in the Electronic Contract File (ECF).
(D) The FAT/Testing Monitor (or the contracting officer, when serving as the FAT/Testing Monitor) is responsible for providing notice to the testing facility upon receipt of the notice required from the contractor prior to the date when the contractor will present the first articles to the QAR for inspection.
(E) Outline agreements. When awarding outline agreements that include items that require “Government First Article Test (FAT),” lock the Service Material line item on the delivery order, to prevent payment of the line prior to receipt of test/approval certificate; and lock the FAT row in SAP.
(ii) Waiver of Government First Article Test (FAT). When the clause at 52.209-4 was included in the solicitation, and it has been determined that the first article test and approval requirements will be waived for the awardee, the contracting officer shall reflect this in the award by taking the following actions:
(A) Insert the clause at 52.209-9020, First Article Testing Requirements Are Waived, in the award;
(B) Select the appropriate Additive CLIN number in DPACS to indicate that first article testing requirements are “Waived;”
(C) Reduce the delivery schedule specified in the solicitation by the number of calendar days allotted to the contractor to produce and deliver the first article units; and the number of calendar days allotted to the Government to test the first article units and provide disposition to the contractor; and
(D) Use “Data Maintenance” to—
(1) Delete any reference to First Article Testing in the Purchase Order Test (POT); and
(2) Free-type the following statement in the POT:
FIRST ARTICLE TESTING REQUIREMENTS ARE WAIVED FOR THIS PROCUREMENT.
Use 52.209-9003, Pre-Award Sample(s), in solicitations for medical materiel. If the contracting officer determines that routine preaward survey techniques are inadequate or have failed to result in a conclusive determination of the prospective contractor’s responsibility, the clause allows the contracting officer to request a sample to verify responsibility.
1. Preaward samples may be required only when the contracting officer has included in the file written documentation detailing the reasons that a conclusive determination of the prospective contractor’s responsibility is not possible unless preaward samples are submitted for evaluation.
2. The clause shall not be used when any of the following conditions exist:
a. Sole source items
b. Rapid entry items
c. Military unique items
d. Repair parts
e. DVD purchases
f. Bid samples are required
g. First Article Testing is required
3. Insert in paragraph (a) the item number(s) and number of units required; insert in paragraph (c)(2) the number of days, not to exceed 20 days, needed to evaluate the samples.
When the Material Master indicates compatibility testing is required, insert the clauses at 52.209-9022, Compatibility Testing Requirements, and 52.209-9023, Compatibility Testing Approval – Government Testing, in solicitations and awards, including when acquisitions are conducted using FAR Part 12. Complete the fill-ins in 52.209-9023, Compatibility Testing Approval – Government Testing, with information shown in the Material Master, Product Assurance tab.
9.391 Government fit verification testing.
When acquiring Aviation Supply Chain items and the Material Master indicates Government fit verification testing is required, insert the clauses at 52.209-9024, Government Fit Verification Testing, and 52.209-9025, Government Fit Verification Testing Approval, in solicitations and awards, including when acquisitions are conducted using FAR Part 12. Complete the fill-ins in 52.209-9025, Government Fit Verification Testing Approval, with information shown in the Material Master, Product Assurance tab.
SUBPART 9.4 - DEBARMENT, SUSPENSION, AND INELIGIBILITY
9.404 Parties Excluded from Procurement Programs.
(c)(1) The Special Assistant for Contracting Integrity (SACI), General Counsel, HQ DLA, shall furnish to the General Services Administration all additions, deletions, or modifications to the list of Parties Excluded from Federal Procurement and Nonprocurement Programs resulting from DLA action.
(c)(4) Departmental records. The records required by FAR 9.404(c)(4) are maintained for DLA by the SACI.
(c)(90) Each DLA activity shall obtain and have available the most recent edition of the list of Parties Excluded from Federal Procurement and Nonprocurement Programs. Consult the list before completing any contracting action identified in FAR 9.405, 9.405-1(b), or 9.405-2.
Use 52.209-9004, Sources for Clothing/Textile Components - NIB and NISH, in all orders in the Clothing & Textile and Medical supply chains with NIB/NISH for clothing and equipment items which are to be fabricated in whole or in part from a cloth or textiles subcontractor.
9.404-91
Use 52.209-9005, Identification of Sources for All Components for Clothing/Textile Items, in solicitations in the Clothing & Textile and Medical supply chains for clothing and equipment items which are to be fabricated in whole or in part from cloth or textiles.
(a) In order to take one of the contracting actions identified in FAR 9.405, 9.405-1(b), or 9.405-2, the activity commander shall forward a written request, including supporting information and rationale, to the SACI via the local counsel for a determination that there is a compelling reason to make an exception. The proposed contracting action may not be taken until an exception is granted in writing by the SACI.
(90) From the time a report recommending debarment or suspension is forwarded to the General Counsel, until determination is made whether to initiate debarment or suspension action, the recommending activity and any other affected DLA activity that is aware of the recommendation will coordinate with the General Counsel, before taking any of the following actions with respect to the subject contractor:
(1) Awarding a contract, issuing a purchase order, or entering the contractor's name in an automated purchase system.
(2) Renewing or otherwise extending an existing contract or subcontract.
(3) Consenting to or approving a subcontract to be awarded by or to the contractor.
(4) Authorizing novation of a contract or agreeing to change of name for the contractor.
(b) Upon submission to the General Counsel of a report recommending debarment or suspension, contracting officers, in coordination with local counsel, will consider removing the subject contractor's name from all automated purchase systems. If the removal is accomplished, one contracting officer at each affected activity shall notify the contractor that the contractor has been removed from the systems and a report recommending the contractor's suspension or debarment has been submitted to HQ DLA. The notice shall include a brief summary of the reasons for the recommendation. Through Counsel at the activity, each affected activity shall notify the General Counsel, by telephone when the contractor is removed from automated purchase systems. For simplified acquisition purchase procedures, for other than automated purchase systems see subparagraph (c)(3) below.
(c) Prior to a determination whether to suspend or debar a contractor recommended for debarment or suspension, if the subject contractor submits an offer that is otherwise in line for an award, the cognizant contracting officer will review the fact sheet furnished pursuant to 9.406-3(a)(ii)(90)(A) below and any other supporting data that the contracting officer deems relevant.
(1) After review of the fact sheet and supporting data, if the contracting officer proposes to award the contract to the subject contractor, the contracting officer, through local counsel, shall coordinate with the General Counsel, prior to making the award.
(2) After review of the fact sheet and supporting data, if the contracting officer determines that the contractor is not responsible, the contracting officer shall notify the contractor of the determination in writing, advise the contractor that a recommendation to suspend or debar the contractor has been forwarded to HQ DLA, and provide to the contractor a brief summary of the reasons for the recommendation and for the determination of nonresponsibility. In addition:
(i) If the contractor is a large business, the contracting officer shall proceed with award to the next low responsible offeror that has submitted a responsive bid or technically acceptable proposal.
(ii) If the contractor is a small business concern, the contracting officer shall include with the FAR 19.602-1(a)(2) referral to the Small Business Administration a copy of all elements of the report required by DFARS 209.406-3(a)(ii) and 9.406-3(a)(ii)(90) of this directive that would be releasable directly to the contractor.
(3) If a contractor inquires as to the status of a quote it submitted under simplified acquisition procedures other than by automated purchase systems, advise the contractor that a recommendation to suspend or debar the contractor has been forwarded to HQ DLA whenever the facts supporting the recommendation are the basis for rejecting the contractor's quotation. Provide the contractor a brief summary of the reasons for the recommendation.
(4) The contracting officer, through local Counsel, shall coordinate by telephone with the General Counsel, actions to be taken under subparagraphs (2) and (3) above.
(91) Review of files for potential claims and additional remedies.
(a) When a DLA contracting office learns that a contractor has been suspended, debarred or proposed for debarment, or a report has been submitted pursuant to DFARS 209.406-3(a) recommending debarment or suspension, the activity's records shall be reviewed to determine whether the activity has current or has had past contractual relationships with the contractor or its affiliates and, if so, whether the Government may have any basis pursuant to those relationships for recovery of damages from, or other claims against, the contractor.
(b) If a DLA activity determines that there may be such a basis, information stating the factual basis in as much detail as practical shall be forwarded promptly to the General Counsel.
9.405-1 Continuation of current contracts.
(90) Authorization for novation of a contract or change of name agreement held by a contractor debarred or suspended by any Federal executive agency or proposed for debarment by any DoD component shall be coordinated with the DLA SACI through local counsel, prior to such authorization.
(a)(i)(90) Reports based on indictments or convictions.
(A) Submit reports recommending suspension based upon an indictment or criminal information to the General Counsel, within 2 weeks of the date of indictment or information and include a copy of the indictment (signed, with docket number and date).
(B) For purposes of recommending debarment based on a conviction, submit the report within 2 weeks of the date of sentencing. Include a copy of the judgment/conviction order.
(a)(ii)(A) The activity contact point shall be an attorney in the Counsel's office of the DLA activity submitting the report.
(a)(ii)(90) In addition to the information required by DFARS 209.406-3(a)(ii), include the following:
(A) A brief fact sheet setting forth the essential reasons for the recommendation to suspend or debar.
(B) The name of the investigative agency, or agencies, if any, that investigated either the facts reflected in the report or other aspects of the contractor's business dealings with the Government.
(C) Available Dun & Bradstreet reports on the subject contractor, including the Dun & Bradstreet Government Activity Report, and the DUNS (Dun & Bradstreet) number of the subject contractor, if available.
(91) When the basis for debarment or suspension is nonperformance, untimely performance, unsatisfactory quality or production performance, noncompliance with contract terms, or any other cause under FAR 9.406-2(b), include an explanation of previous contract steps taken to protect the Government's interest (e.g., termination for default, determinations of nonresponsibility) or an explanation of why such steps were not taken.
(92) When preparing a report pursuant to DFARS 209.406-3(a), contact the cognizant DCMD(s) to obtain the information required by DFARS 209.406-3(a)(ii)(F). If DCMD records reflect contracts with other DLA contracting offices, notify those other DLA contracting offices of the proposed recommendation and furnish them and the DCMD(s) the information upon which the report will be based. State in the report that this intra-agency coordination has been accomplished, list the DLA activities contacted, and summarize the information exchanged.
(a)(iii) The report required by DFARS 209.406-3(a) shall be signed by the contracting officer and submitted in duplicate by the Commander of the PLFA recommending activity to the General Counsel, HQ DLA. Designate the report "For Official Use Only," unless the contents of the report warrant a security classification.
(a)(iii)(90) When a report recommending debarment or suspension is forwarded to the General Counsel, distribute copies of the fact sheet described in 9.406-3(a)(ii)(90)(A) to contracting personnel at the recommending activity assigned to commodities for which solicitations are likely to result in offers from the contractor identified in the report and to other DLA activities identified pursuant to (ii)(92), above.
(c)(6) The effect includes the possibility that a preaward survey evaluation factor may be applied to offers from the debarred source for the period of time specified in 9.106-1(a)(1) after the debarment is no longer in effect (see 15.605-90).
9.406-90 Procedures for debarments based on poor performance.
(a) Policy. Debarment reflects a business judgment about a contractor's trustworthiness, commitment, and capability to successfully perform Government contracts. The debarment regulations recognize two general bases for debarment -- fraudulent or other seriously improper conduct suggesting that a contractor cannot be trusted to fulfill its contractual obligations and poor performance suggesting an inability to fulfill contractual obligations. Responsibility for managing the DLA Fraud Program has been assigned to the General Counsel. Thus, in those instances where suspected criminal misconduct provides the basis for debarment action, the responsibility for initiating action to ensure that a debarment report is forwarded to HQ DLA for further action lies primarily with local counsel. Conversely, where poor performance is to be relied upon as a basis for debarment in accordance with FAR 9.406-2(b), the responsibility for ensuring that action is taken to initiate debarment proceedings lies primarily with the cognizant contracting officer.
(b) Referral. The contracting officer, together with the other members of the contracting team, must initiate timely, effective action to ensure that the Government's business interests are protected when a contractor's action or inaction threatens successful contract performance. The contracting officer is responsible for ensuring that contracts are awarded only to responsible contractors with a high likelihood of being able to successfully perform in accordance with contract terms and conditions. Contracting officers are also responsible for making effective use of available contract remedies, including action to terminate contracts for default and recover for damages suffered, and pursuing extra-contractual remedies, such as debarment of poor performers, where the Government's business interests are at risk. In accordance with the procedures contained in subparagraph (c) below, the cognizant contracting officer will refer to local counsel those instances of contractor nonperformance that are so serious as to justify consideration of possible debarment action.
(c) Decision-making process.
(1) Before referring a particular contractor to local counsel for possible preparation of a debarment report, the cognizant contracting officer must be able to document the poor performance which will form the basis for a debarment recommendation. The contracting officer must also be able to demonstrate why debarment is the only reasonable alternative available left to the Government. Efforts by the Government to protect its interests by less severe measures (e.g., changing the point of acceptance, suspension of progress payments or placing the contractor on the local contract award checklist) must be clearly identified. While debarment decisions are based on a determination of a contractor's present responsibility, detailed knowledge of that contractor's performance history and record including actions taken by the Government is critical to the debarring official's determination. Referrals to local counsel should include all current information necessary to support the business decision that is to be recommended to the DLA SACI. The contracting officer should be prepared to update the information provided once the debarment process is underway and to participate with local counsel in presenting the case to the DLA SACI.
(2) When referring a contractor to local counsel for consideration of a possible debarment recommendation on the basis of poor performance, the cognizant contracting officer shall provide:
(i) A clear identification of the contractor, including divisions, subsidiaries, and affiliates, and contractor employees, officers, and directors, specifically identifying the contractor personnel who have participated in the Government contracting process.
(ii) A detailed account of the contractor's current active contracts, recent, relevant performance history, and history of performance problems prompting the referral. While this detailed accounting of contracting performance will necessarily focus on contracts awarded by DLA, performance on other Government contracts must also be addressed. In this connection, the assigned contract administration office should be asked to provide information, as well as comments, on the action being considered.
(iii) The reasons identified for the contractor's poor performance and the action taken by the Government to protect its business interests.
(iv) A discussion of whether a debarment action directed toward a specific division, organizational element, or commodity would adequately protect the Government's interests.
(v) A discussion of the period of debarment to be recommended to the DLA SACI, supported by rationale that addresses the likelihood that the contractor will be able to take corrective actions necessary to successfully perform in the future.
(c)(4) The effect includes the possibility that a preaward survey evaluation factor may be applied to offers from the suspended source for the period of time specified in 9.106-1(a)(90)(1) after the suspension is no longer in effect (see 15.304(c)(95)).