[Federal Register: April 2, 2008 (Volume 73, Number 64)]
[Proposed Rules]
[Page 17945-17947]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ap08-23]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 9, 13, 17, 36, 42, and 53
[FAR Case 2006-022; Docket 2008-0002; Sequence 3]
RIN 9000-AK99
Federal Acquisition Regulation; FAR Case 2006-022, Contractor
Performance Information
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to revise the contractor
performance information process. The FAR revisions include changes to
FAR Parts 2, 9, 13, 17, 36, 42, and 53.
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before June 2, 2008 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2006-022 by any of
the following methods:
Regulations.gov: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2006-022'' under the heading ``Comment or Submission''. Select the link
``Send a Comment or Submission'' that corresponds with FAR Case 2006-
022. Follow the instructions provided to complete the ``Public Comment
and Submission Form''. Please include your name, company name (if any),
and ``FAR Case 2006-022'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW., Room 4035, ATTN: Diedra Wingate,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR Case 2006-
022 in all correspondence related to this case. All comments received
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Jeritta A. Parnell, Procurement
Analyst, at (202) 501-4082 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAR case 2006-022.
SUPPLEMENTARY INFORMATION:
A. Background
The Office of Federal Procurement Policy (OFPP) and the Chief
Acquisition Officer's Acquisition Committee for E-GOV (ACE) established
a working group to review regulations, policies, and guidance
associated with contractor performance information. This working group
proposed changes to a number of FAR parts. The Councils have agreed to
some, but not all, of these changes. This proposed rule reflects those
changes agreed to by the Councils. The changes to the FAR include the
following:
(1) Adds a definition in FAR 2.101 for ``past performance'' to
include both active and completed contracts;
(2) Clarifies the use of the governmentwide performance information
repository, Past Performance Information Retrieval System (PPIRS) at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ppirs.gov;
(3) Requires contracting officers to evaluate past performance for
orders that exceed the simplified acquisition threshold placed against
Federal Supply Schedule contract, or under a task order contract or a
delivery order contract awarded by another agency (i.e. governmentwide
acquisition contract or multi-agency contract) and recommends past
performance evaluations for orders under single agency contracts;
(4) Consolidates the collection of past performance guidance in
Part 42 and deletes the SF 1420 and 1421 from Part 36 and Part 53; and
(5) Clarifies that the agency shall identify the individual
responsible for preparing the evaluation of contractor past
performance.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This is not a
major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule does not impose any additional requirements on small
businesses. The collection and reporting of past performance
information is an internal process to the Government. The rule merely
puts into effect the current practices of prudent contracting officers.
In addition, the rule provides clearer instruction to contracting
officers by restating in a better format the current language. Past
performance evaluations are now made on master contracts based on the
performance reported on the individual orders. This rule allows
separate rather than consolidated evaluations under these types of
contracts. There should be a small positive benefit for small
businesses when individual instant reports are made rather than waiting
for long-term reports on the master contract. Likewise, when small
businesses have negative reports, the small businesses can take
corrective action sooner. Therefore, an Initial Regulatory Flexibility
Analysis has not been performed. The Councils will consider comments
from small entities concerning the affected FAR Parts 2, 9, 13, 17, 36,
42, and 53 in accordance with 5 U.S.C. 610. Interested parties must
submit such comments separately and should cite 5 U.S.C. 601, et seq.
(FAR Case 2006-022) in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 2, 9, 13, 17, 36, 42, and 53
Government procurement.
Dated: March 28, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 9,
13, 17, 36, 42, and 53 as set forth below:
1. The authority citation for 48 CFR parts 2, 9, 13, 17, 36, 42,
and 53 continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
[[Page 17946]]
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 in paragraph (b)(2) by adding the definition
``Past Performance'' in alphabetical order to read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Past performance means an offeror's or contractor's performance on
active and completed contracts.
* * * * *
PART 9--CONTRACTOR QUALIFICATIONS
3. Amend section 9.105-1 by revising the introductory text of
paragraph (c) and removing paragraph (c)(7) to read as follows:
9.105-1 Obtaining information.
* * * * *
(c) In making the determination of responsibility (see 9.104-1(c)),
the contracting officer shall consider relevant past performance
information (see Subpart 42.15). In addition to the Governmentwide
performance information repository, Past Performance Information
Retrieval System (PPIRS) (at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ppirs.gov), the contracting
officer should use the following sources of information to support such
determinations:
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
4. Amend section 13.106-2 by revising paragraph (b)(3)(ii) to read
as follows:
13.106-2 Evaluation of quotations or offers.
* * * * *
(b) * * *
(3) * * *
(ii) May be based on--
(A) The contracting officer's knowledge of and previous experience
with the supply or service being acquired;
(B) Customer surveys, and past performance questionnaire replies;
(C) The Governmentwide Past Performance Information Retrieval
System (PPIRS) at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ppirs.gov; or
(D) Any other reasonable basis.
* * * * *
PART 17--SPECIAL CONTRACTING METHODS
5. Amend section 17.207 by:
a. Removing ``and'' from the end of paragraph (c)(3);
b. Removing from paragraph (c)(4) the ``.'' and adding ``; and'' in
its place; and
c. Adding paragraph (c)(5) to read as follows.
17.207 Exercise of options.
* * * * *
(c) * * *
(5) The contractor is not listed on the Excluded Parties List
System (EPLS) (see FAR 9.405-1).
* * * * *
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
6. Revise section 36.201 to read as follows:
36.201 Evaluation of contractor performance.
See 42.1502(e) for the requirements for preparing past performance
evaluations for construction contracts.
7. Revise section 36.604 to read as follows:
36.604 Performance evaluation.
See 42.1502(f) for the requirements for preparing past performance
evaluations for architect-engineer contracts.
36.701 [Amended]
8. Amend section 36.701 by removing paragraph (d).
36.702 [Amended]
9. Amend section 36.702 by removing paragraph (c).
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
10. Revise section 42.1502 to read as follows:
42.1502 Policy.
(a) Past performance evaluations should be as specified in
paragraphs (b) through (g) of this section at the time the work under
the contract or order is completed. In addition, interim evaluations
should be prepared as specified by the agencies to provide current
information for source selection purposes, for contracts or orders with
a period of performance, including options, exceeding one year. These
evaluations are generally for the entity, division, or unit that
performed the contract or order. The content of the evaluations should
be tailored to the size, content, and complexity of the contractual
requirements.
(b) Except as provided in paragraphs (e), (f), and (h) of this
section, agencies shall prepare an evaluation of contractor performance
for each contract that exceeds the simplified acquisition threshold.
(c) Agencies shall prepare an evaluation of contractor performance
for each order that exceeds the simplified acquisition threshold placed
against a Federal Supply Schedule contract, or under a task order
contract or a delivery order contract awarded by another agency (i.e.,
Governmentwide acquisition contract or multi-agency contract).
(d) For single-agency task order and delivery order contracts, the
contracting officer may require performance evaluations for each order
in excess of the simplified acquisition threshold when such evaluations
would produce more useful past performance information for source
selection officials than that contained in the overall contract
evaluation (e.g., when the scope of the basic contract is very broad
and the nature of individual orders could be significantly different).
(e) Past performance evaluations shall be prepared for each
construction contract of $550,000 or more, and for each construction
contract terminated for default regardless of contract value. Past
performance evaluations may also be prepared for construction contracts
below $550,000.
(f) Past performance evaluations shall be prepared for each
architect-engineer services contract of $30,000 or more, and for each
architect-engineer services contract that is terminated for default
regardless of contract value. Past performance evaluations may also be
prepared for architect-engineer services contracts below $30,000.
(g) Past Performance evaluations shall include an assessment of
contractor performance against, and efforts to achieve, the goals
identified in the small business subcontracting plan when the contract
includes the clause at 52.219-9, Small Business Subcontracting Plan.
(h) Agencies shall not evaluate performance for contracts awarded
under Subpart 8.7.
11. Amend section 42.1503 by revising paragraphs (a), (c), (d) and
(e) to read as follows:
42.1503 Procedures.
(a) Agency procedures for the past performance evaluation system
shall generally provide for input to the evaluations from the technical
office, contracting office and, where appropriate, end users of the
product or service. These procedures shall identify the individual
responsible for preparing interim and final evaluation. This designated
individual may obtain information for the evaluation of performance
from the program office,
[[Page 17947]]
administrative contracting office, end users of the product or service,
and any other technical or business advisor, as appropriate. Interim
evaluations shall be prepared as required.
* * * * *
(c) Agencies shall submit past performance reports electronically
to the Past Performance Information Retrieval System (PPIRS) at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ppirs.gov in accordance with agency procedures.
(d) Any past performance information systems used for maintaining
contractor performance information and/or evaluations should include
appropriate management and technical controls to ensure that only
authorized personnel have access to the data.
(e) For source selection purposes, agencies shall use the past
performance information in PPIRS within three years (six for
construction and architect-engineer contracts) of the completion of
performance of the evaluated contract or order.
PART 53--FORMS
53.236-1 [Amended]
12. Amend section 53.236-1 by removing paragraphs (a) through (c)
and redesignating existing paragraphs (d) through (f) as new paragraphs
(a) through (c), respectively.
53.236-2 [Amended]
13. Amend section 53.236-2 by removing paragraph (c).
53.301-1420 and 53.301-1421 [Removed]
14. Remove sections 53.301-1420 and 53.301-1421.
[FR Doc. E8-6795 Filed 4-1-08; 8:45 am]
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