[Federal Register: March 23, 2010 (Volume 75, Number 55)]
[Rules and Regulations]
[Page 14059-14067]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23mr10-18]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 9, 12, 42, and 52
[FAC 2005-40; FAR Case 2008-027; Docket 2009-030, Sequence 1]
RIN 9000-AL38
Federal Acquisition Regulation; FAR Case 2008-027, Federal
Awardee Performance and Integrity Information System
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are issuing a final rule
amending the Federal Acquisition Regulation (FAR) to implement the
Federal Awardee Performance and Integrity Information System (FAPIIS),
as required by section 872 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009. FAPIIS is designed to improve
the Government's ability to evaluate the business ethics and expected
performance quality of prospective contractors and protect the
Government from awarding contracts to contractors that are not
responsible sources.
DATES: Effective Date: April 22, 2010.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Millisa Gary, Procurement Analyst, at (202) 501-0699. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-40, FAR
case 2008-027.
SUPPLEMENTARY INFORMATION:
A. Background and Overview of Final Rule
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 74 FR 45579, September, 3, 2009. This final rule adopts the
proposed rule with a number of clarifying and technical changes.
This rule amends the Federal Acquisition Regulation (FAR) to
implement the Federal Awardee Performance and Integrity Information
System (FAPIIS). FAPIIS is designed to significantly enhance the
Government's ability to evaluate the business ethics and quality of
prospective contractors competing for Federal contracts and to protect
taxpayers from doing business with contractors that are not responsible
sources.
This rulemaking and the associated launch of FAPIIS are part of an
ongoing initiative by the Administration to increase consideration of
contractor integrity and the quality of a contractor's performance in
awarding Federal contracts. These actions also address requirements set
forth in section 872 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009, Pub. L. 110-417, for a system
containing specific information on the integrity and performance of
covered Federal agency contractors. (Consistent with the requirements
of section 872, the Office of Management and Budget recently issued
proposed guidance on the use of FAPIIS for grants. See 75 FR 7316,
February 18, 2010).
Access to readily available Governmentwide information that a
contracting officer would routinely consider when making a
responsibility determination historically has been limited to debarment
and suspension actions, which are maintained in the Excluded Parties
List System (EPLS). Since this past summer, agencies have been required
to submit electronic records of contractor performance into a single
Governmentwide repository, the Past Performance Information Retrieval
System (PPIRS), so that the information may be reviewed and considered
by contracting officers across the Government. See 74 FR 31557, July 1,
2009. Improved inter-agency access to these assessments will motivate
better performance and reduce the likelihood that taxpayer resources
will go to contractors with poor track records in meeting the
Government's requirements in an efficient and effective manner.
FAPIIS is intended to significantly enhance the scope of
information available to contracting officers as they evaluate the
integrity and performance of prospective contractors. In addition to
providing one-stop access to EPLS and PPIRS, FAPIIS will also include
contracting officers' non-responsibility determinations (i.e., agency
assessments that prospective contractors do not meet requisite
responsibility standards to perform for the Government), contract
terminations for default or cause, agency defective pricing
determinations, administrative agreements entered into by suspension
and debarment officials to resolve a suspension or debarment, and
contractor self-reporting of criminal convictions, civil liability, and
adverse administrative actions. The system will collect this
information, on an ongoing basis, from existing systems within the
Government (i.e., EPLS and PPIRS), contracting officers (for
determinations of non-responsibility and contract terminations),
suspension and debarment officials (for information on administrative
agreements), and contractors (for information related to criminal,
civil, and administrative proceedings).
Pursuant to this final rule:
Contracting officers will be required to (i) review the
information in FAPIIS in connection with contracts over the simplified
acquisition threshold for the purpose of making a responsibility
determination, (ii) document the contract file to explain how the
information in FAPIIS was considered in any responsibility
determination--as well as the action that was taken as a result of the
information, and (iii) notify, prior to proceeding with award, the
agency official responsible for initiating debarment or suspension, if
information is identified in FAPIIS that appears appropriate for that
official's consideration.
Contracting officers must give offerors the opportunity to
provide additional information that demonstrates their responsibility
before the contracting officer makes a non-responsibility determination
based on relevant information from FAPIIS if such information regards
the following: criminal, civil, or administrative proceedings in
connection with the award of a Government contract, terminations for
default or cause, or determinations of non-responsibility because the
contractor does not have a satisfactory performance record or a
satisfactory record of integrity and business ethics, or comparable
information relating to a grant.
Vendors submitting a proposal on a Federal contract over
$500,000 and having more than $10 million in active contracts and
grants as of the time of proposal submission, must report in FAPIIS
information pertaining to criminal, civil and administrative
proceedings through which a requisite determination of fault was made.
Under the resultant contract, the information must be updated in FAPIIS
by the contractor on a semi-annual basis, through the life of the
contract. The FAPIIS system will provide contractors with notification
whenever the Government posts new information to the contractor's
record. The contractor will have an opportunity to post comments
regarding information that has been posted by the Government, including
non-responsibility determinations, and such comments will be retained
as long as the associated
[[Page 14060]]
information is retained (for a total period of six years) and remain
part of the record unless the contractor revises them.
Although FAPIIS is designed to be a ``one-stop'' resource, the rule
does not alter contracting officers' obligation, as set forth in FAR
9.105-1, to possess or obtain information sufficient to determine that
a prospective contractor meets the applicable standards for
establishing responsibility. The Councils will continue to look for
additional appropriate sources of information, including relevant
Government databases, to support contracting officers in evaluating the
integrity of prospective contractors, as well as ways in which to
further facilitate the analysis and validation of information
collected.
The Councils intend to collect State-level information in
connection with the award or performance of a contract or grant with a
State government, as anticipated in section 872(c)(7). However,
collection of this information has been deferred until a subsequent
phase of FAPIIS. The Councils had concerns that the challenges of
collecting State government information, such as establishing a
reporting format that is consistent across State governments, could not
be resolved without delaying this rulemaking. In addition to working
out an appropriate plan for collecting State information, the Councils
will explore the feasibility of collecting local government
information. Further, the Councils and OMB are carefully considering
the issuance of a proposed rule to further enhance the utility of
FAPIIS by both (1) lowering the threshold for covered actions that
trigger FAPIIS reporting from $500,000 to the simplified acquisition
threshold, and (2) expanding the current scope of reporting to include
other violations of laws, as opposed to violations only in the context
of Federal contracts and grants. The public would be provided an
opportunity to comment before any proposed changes are finalized.
B. Response to Comments Received on the Notice of Proposed Rulemaking
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 74 FR 45579, September 3, 2009, with a public comment
period ending October 5, 2009. On October 5, 2009, the comment period
was extended to November 5, 2009 (74 FR 51112). The Councils received
public comments from 16 respondents on the proposed rule. Copies of the
comments received by the Councils in response to the Federal Register
notice are available for review at http://www.regulations.gov. Comments
largely focused on (1) the scope and quality of information to be
collected in FAPIIS, (2) use of the database, (3) access to the
database, (4) application of the rule to acquisitions for commercial
items and commercial-off-the-shelf (COTS) items, and (5) the potential
need for obtaining additional public comment. Based on the comments and
additional deliberations, the Councils have made a number of
refinements and technical changes to the rule. A summary description of
the comments and the Councils' responses and changes adopted in the
final rule are set forth below.
1. Information in FAPIIS
Many commenters raised issues related to the planned content of
FAPIIS. A number of commenters focused on scope questions. Some of
these commenters stated that the information collected in FAPIIS should
be broadened beyond that stated in the proposed rule while others
raised certain concerns with the scope of the proposed rule. Several
commenters addressed data quality issues and made recommendations to
ensure the accuracy and timeliness of FAPIIS data.
a. Comments related to broadening the content in FAPIIS. Examples
of recommended expansions included lowering the threshold of covered
contracts from $500,000 to all contracts that exceed the simplified
acquisition threshold (presently $100,000), and augmenting the type of
information collected to include: (i) violations of laws in the
performance of any contract, as opposed to just Federal contracts; (ii)
violations of labor and employment laws, regardless of whether the
reimbursement, restitution, or damages meet the $100,000 threshold
identified in section 872(c)(1); (iii) complaints and administrative
settlements, including settlements without admission of fault, in order
to ascertain information about contractors' performance patterns; (iv)
information on debarments and suspensions carried out at the State
level; (v) information on all proceedings entered into at any level of
government, regardless of outcome; (vi) audit reports from cognizant
Federal audit offices, such as the Government Accountability Office or
the Defense Contract Audit Agency; and (vii) all information covered in
the Online Representations and Certifications Application (ORCA). In
addition, one respondent recommended that the archival period for
information in FAPIIS be extended so that contracting officers have at
their disposal as comprehensive a picture as possible.
Response: The Councils seek to ensure that FAPIIS provides
contracting officers with efficient and effective access to the
information they need to evaluate the business ethics and quality of
prospective contractors competing for Federal contracts. To achieve
this goal, the Councils have taken a phased approach to the
implementation of FAPIIS, focusing first on the information
specifically identified by Congress in section 872(c) of the FY 2009
NDAA. This approach has allowed the Councils to collaborate closely
with the FAPIIS Program Manager, who is responsible for the
architecture and technological requirements of the system. This
approach also is providing an opportunity for agencies to become
acclimated with the system and train their contracting officers. Going
forward, this approach will allow the Councils to carefully consider
policy and procedural issues as new sources of information are
identified pursuant to section 872(b) and (c)(6).
For the next phase of FAPIIS, the Councils and OMB are carefully
considering a proposed rule that would build on several suggestions
made by the public and augment reporting by: (1) lowering the threshold
for covered actions that trigger FAPIIS reporting from $500,000 to the
simplified acquisition threshold and (2) expanding the current scope of
reporting to include other violations of laws, as opposed to violations
only in the context of Federal contracts. This information can further
enhance the utility of FAPIIS and give contracting officers a fuller
picture of a contractor's history of compliance.
However, a number of the other above-described suggestions for
expansion raised concerns for the Councils. For example:
Requiring the collection of information on all
proceedings, regardless of outcome, could potentially create instances
where negative judgments on contractors' responsibility are made
regardless of the outcome of the referenced proceedings. If information
regarding yet-to-be-concluded proceedings were allowed, negative
perceptions could unfairly influence contracting officers to find a
contractor non-responsible, even in situations that later end with the
contractor being exonerated. The Councils are strongly committed to
helping contracting officials avoid these types of situations.
Incorporating all the information from ORCA is
inappropriate. Much of the information in this system is not designed
to support contracting officers in making responsibility
determinations.
[[Page 14061]]
Extending the archival period (for retaining information
beyond five years) is also inappropriate as this period was created for
auditing purposes, not for use by contracting officers in making
responsibility determinations.
b. Comments related to refining the proposed content in FAPIIS.
Examples of concerns voiced with the proposed collection of information
included that (i) the collecting of information on administration
agreements entered into to resolve a suspension or debarment increases
the likelihood of a de facto debarment; and (ii) the definition of
``covered person'' to include principals is overbroad.
Response: The Councils appreciate the need to ensure that
information included in FAPIIS will contribute to the stated purpose of
the database and that appropriate training is provided to help
contracting officers in their use of this information. The Councils did
not agree, however, that significant revisions were warranted based on
the requested refinements. In particular, the collection of information
on administrative agreements entered into to resolve a suspension or
debarment is required by section 872, so it must be included in the
system. Regarding the concern raised with the definition of ``covered
person,'' the existing requirement at FAR 52.209-5 includes
certification regarding both the offeror and the principals.
Additionally, since the FAPIIS requirement for information does not
relate to all offenses by the principals, but only to those that relate
to the performance of a Federal contract or grant, this information
should be available to the offeror.
As further clarification, the Councils have removed an
inconsistency within the definition of ``principal'' between the stated
meaning (person within the business entity) and one of the examples
(head of a subsidiary). A subsidiary is not generally within the
business entity, but is a separate and distinct legal entity.
Therefore, the Councils have removed ``head of a subsidiary'' from the
list of examples in the definitions of ``principal'' throughout the
FAR, because it can imply a meaning broader than the stated definition.
Deletion of this example should not result in any change of meaning,
since this is just an example, and the definition clearly states that
principals are persons within the business entity.
c. Comments addressing the accuracy and timeliness of FAPIIS data.
Several commenters cited to recent Government audits that have revealed
inaccurate, untimely or missing data associated with several existing
databases that contracting officials are required to consult. Reliance
on these databases has lead to recurring awards to suspended or
debarred individuals and companies, or companies with questionable
ethics. The commenters recommend better training of the acquisition
workforce as a means to ensure entry of better data into FAPIIS.
Another commenter requested enforceable guidelines for submission of
accurate and timely data by contracting officers and suspension and
debarment officials (SDOs), as well as contractors, with sanctions
associated with non-compliance with FAPIIS reporting requirements. This
commenter recommended that a single entity should have accountability
and authority to ensure that the information submitted to the database
is timely, accurate, and complete, and that the database is used
effectively.
Response: Pursuant to section 872(d), the Administrator of GSA
shall develop policies to require the timely and accurate input of
information into the database. To this end, the Councils will work with
the FAPIIS Program Manager, the Federal Acquisition Institute (FAI),
and the Defense Acquisition University (DAU) to develop guidance for
contracting officials and SDOs on proper input, accuracy, and
timeliness of data into FAPIIS. In addition, the Councils have added a
requirement to the rule similar to that at FAR 4.604 for data entry
into the Federal Procurement Data System, stating that the contracting
officers and SDOs are responsible for the timely submission and
sufficiency of the data. There is no single entity that can be held
accountable because the information in FAPIIS comes from various
sources. However, each system to which FAPIIS connects has its own
guidelines for timeliness and accountability and separate initiatives
are being pursued to strengthen these systems. For example, OFPP's
memorandum of July 29, 2009, Improving the Use of Contractor
Performance Information, available at http://www.whitehouse.gov/omb/
assets/procurement/ improving_use_of_contractor _perf_info.pdf,
requires the submission of report cards to the Past Performance
Information Retrieval System (PPIRS). PPIRS has a standard format for
supplying all the report card information collected from the Federal
agencies to authorized Government users for use in source selection
decisions, and the Government is working to improve compliance by
Federal agencies in reporting this data and the quality of the
information entered into PPIRS. In improving the compliance and quality
of the data, over time, the accuracy of the data should improve. In the
meantime, the Councils have added a requirement for timeliness and
accountability for the Government personnel who will be entering data
directly into the database. With respect to contractors, there are a
range of penalties available to the Government for non-compliance with
the requirements of a contract, such as determination of non-
responsibility, termination for default, or suspension or debarment.
d. Other comments related to information in FAPIIS. One commenter
sought clarification regarding whether FAPIIS will always display
information on active debarments and suspensions and whether FAPIIS
will provide access to information on expired debarments and
suspensions. Another commenter recommended that the $10,000,000
threshold of open contracts triggering the requirement to submit
information to FAPIIS be clarified to include all priced options and
modifications.
Response: Regarding debarment and suspension, FAPIIS will provide
access to data on active suspensions and debarments, even if the
suspension or debarment was imposed more than five years ago. FAPIIS
will also provide access to data on expired suspensions and debarments
for five years after the expiration date. To access records after this
period, agencies would need to utilize the Excluded Parties List
System's archives. With respect to the $10 million threshold, the
Councils concur that additional clarification is needed to capture the
value of modifications when calculating the total value of all current,
active contracts and grants. The language in the final rule has been
refined to clarify that offerors must consider the total value of the
contracts and grants including all priced options and modifications.
2. Use of FAPIIS
A number of commenters raised issues related to how information in
FAPIIS will be used--especially in connection with responsibility
determinations. Comments largely addressed the need for additional
guidance and training and making sure contracting officers understand
what information is relevant to their analysis. One comment also raised
concern regarding the SDO notification process.
a. Comments addressing the need for additional guidance and
training. Several commenters recommended that contracting officers be
provided with guidance and training on (1) how to use the information
in FAPIIS relative to past performance evaluations and non-
responsibility determinations, and (2) the type and level of
information to be
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reported to agency SDOs. Some commenters specifically recommended that
the FAR provide more specific parameters on how to evaluate and utilize
the information in FAPIIS and when a referral to the SDO would be
appropriate.
Response: The Councils appreciate the importance of helping
contracting officials obtain the skill and aptitude necessary to
discern the relevance and weight to be given the information reviewed.
The Councils believe that training, rather than more specific standards
in the regulations, is a better way to achieve this goal. The Councils
will work with FAI and DAU to develop guidance and training for
contracting officials on the proper use of the information contained in
FAPIIS, and the type of information that would warrant submission to
agency SDOs.
b. Comments addressing cautions given to contracting officers on
the relevance of information in FAPIIS. Commenters raised concerns
regarding the language proposed for FAR 9.104-6(b), which instructs
contracting officers to ``consider all the information in FAPIIS'' but
adds a caveat that ``some of the information in FAPIIS may not be
relevant to a determination of present responsibility'' because
``FAPIIS may contain information covering a five year period.'' The
provision gives as an example of information that may not be relevant
to a determination of present responsibility, a prior administrative
action such as a debarment or suspension that has expired or otherwise
been resolved. One commenter stated that the caution was confusing
because it instructed award officials to consider information but then
advised them that it may not be relevant. Another commenter was
concerned that the caution imposed an unnecessary restriction on
contracting officers' review of responsibility information. A third
commenter supported the caution but recommended that it be expanded to
also cover past performance.
Response: Section 872 requires retention of the data on suspension
and debarment for five years and it requires consideration of all the
data in the database. The Councils recognize that some of the data in
the database may not be relevant when determining present
responsibility and are committed to avoiding situations of unjustified
determinations of non-responsibility. Without the language, contracting
officers may think they are required to utilize outdated information
that has no bearing on a contractor's present responsibility. The
statement does not, as one commenter suggested, limit a contracting
officer from considering any information that can be appropriately
considered and that is relevant. In light of the comments, the Councils
have clarified the explanation for the caution by stating that FAPIIS
may contain information on any of the offeror's previous contracts and
therefore may contain information relating to contractors for products
or services that are completely different from those being acquired.
The Councils have also added cross references to FAR 15.305(a)(2) as a
reminder of relevance requirements in the consideration of past
performance.
c. Comment addressing the need to separate discussion of
responsibility determinations and past performance evaluations. One
commenter noted that the proposed rule inappropriately mixes the
discussion and handling of past performance evaluations and
responsibility determinations.
Response: The Councils concur and have separated these two
concepts. In the final rule, FAR section 9.104-6 focuses just on
responsibility determinations. For past performance evaluations, the
contracting officer is referred to FAR section 15.305(a)(2), which
addresses how to evaluate the relevance of data and clearly states that
this evaluation is separate from the responsibility determination
required under subpart 9.1. The final rule also incorporates use of
FAPIIS into the procedures addressing agency evaluations of contractor
performance in FAR 42.1503 since there may be information in FAPIIS,
such as terminations for default or cause and defective pricing
assessments, that is not in PPIRS but still may be appropriately used,
along with the information in PPIRS to evaluate an offeror's
performance.
d. Comment pertaining to the requirement for notifying SDOs. One
commenter was concerned that the requirement to notify the SDO may
cause needless delay and recommended strengthening the authority of the
contracting officer to make a decision that no additional information
is necessary. The commenter also expressed concern about due process.
Response: The proposed language, which has been retained without
change in the final rule, requires contracting officers to notify,
prior to proceeding with award, the agency official responsible for
initiating debarment or suspension action in accordance with agency
procedures. This notification process closely tracks that already
established in FAR 9.104-5 for situations where an offeror provides an
affirmative response on its responsibility certification and therefore
should not create undue additional delay. In addition, no changes have
been made to procedures currently used to ensure an opportunity for the
offeror to provide its input where responsibility is in question. The
final rule follows the current practice for providing offerors with an
opportunity to explain their responsibility if the contracting officer
obtains relevant information from FAPIIS that could lead to a non-
responsibility determination. Similarly, the rule makes no changes to
the due process obligations associated with suspension or debarment
actions.
3. Access to FAPIIS
Many commenters recommended that the rule authorize public access
to FAPIIS, while other commenters voiced concerns over the security
controls in place to protect awardee information.
a. Comments related to public access. Commenters favoring public
access to FAPIIS stated that taxpayers have a right to know about the
responsibility of contractors and that such access is ``essential to
efficient and effective implementation and oversight of Federal
contracting.'' One commenter noted that by providing this access, the
public could help oversee compliance in those instances where
information is not fully disclosed, since contracting officers will not
have time to check the facts self-reported by contractors. Other
suggestions included providing access to inspectors general and Federal
law enforcement agencies, and State governments. Comments were split on
whether FAPIIS information should be available to the public under the
Freedom of Information Act (FOIA) requests.
Response: Section 872(e)(1) provides that the Administrator of GSA
shall ensure that the information in the database is available to
appropriate acquisition officials of Federal agencies, to such other
Government officials as the Administrator determines appropriate, and,
upon request, to the Chairman and Ranking Members of the committees of
Congress having jurisdiction. Therefore, the Councils do not believe
that Congress intended for this database to be accessible by the
public. However, Inspectors General and Federal law enforcement
agencies could request access under the provision for access to ``other
Government officials as the Administrator determines appropriate.''
Whether FAPIIS data is releasable or exempt from disclosure under FOIA
would be determined on a case-by-case basis. Public requests for system
information will be handled under FOIA.
[[Page 14063]]
b. Comments related to security controls. Several commenters voiced
concerns over the security controls in place to protect awardee
information in FAPIIS. Under the final rule, like the proposed rule,
contracting officials, offerors (pre-award) and contractors (post-
award) will be required to input data into FAPIIS. The commenters are
concerned that this sensitive information could affect the contractor
in question if the sensitive information was made public.
Response: The Councils acknowledge the sensitivity of the
information collected to future procurement opportunities for
contractors. The information collected and viewable through FAPIIS will
be considered source selection sensitive and require Government
personnel to be given access through their agency focal points on a
need-to-know basis for source selection decisions. (The FAPIIS database
includes the same access controls as PPIRS.) Information on criminal,
civil, and administrative proceedings submitted directly from vendors
will be provided solely to the FAPIIS database. In addition, vendors
will only be allowed to access information submitted to FAPIIS for
their own entity based on their DUNS number and Marketing Partner
Identification Number that they assign themselves as is done currently
with access to PPIRS. Restrictions on access are set forth in a new
contract clause which was added by the final rule and states: ``With
the exception of the Contractor, only Government personnel and
authorized users performing business on behalf of the Government will
be able to view the Contractor's record in the system. Public requests
for system information will be handled under Freedom of Information Act
procedures, including, where appropriate, procedures promulgated under
E.O. 12600.''
4. Other issues
a. Comments regarding the application of the rule to commercial
items and commercial-off-the-shelf items. One commenter favored
application of the rule to the acquisition of commercial items and COTS
items. Another opposed such application, stating that firms providing
such items are least likely to have the systems in place to collect and
update the requisite information and will be wary and reluctant to
provide the information--but still acknowledged that such contractors
may already be covered by the reporting requirements because of awards
for other than COTS or commercial items.
Response: The Councils disagree with the arguments set forth to
oppose application of the rule to commercial item and COTS
acquisitions. An exemption for commercial item and COTS acquisitions
would exclude a significant portion of Federal contractors, thereby
undermining an overarching public policy to achieve greater integrity
and performance quality in contracting that this law is intended to
further. There also does not appear to be any unique burden that would
undermine access to the commercial marketplace. The requirement for
contractors to submit information into FAPIIS applies to those
contractors with active Federal contracts and grants totaling more than
$10 million at the time of proposal submission, and contractors with
this level of activity generally should be equipped to collect and
update the information in the system. The commenter even acknowledged
that there is a reasonable likelihood a contractor offering a
commercial item or COTS item may already be covered by the reporting
requirement by virtue of past awards for other than commercial items
and COTS.
Prior to making this rule applicable to commercial item
acquisitions, and pursuant to section 34 of the Office of Federal
Procurement Policy Act (OFPP Act), 41 U.S.C. 430, the FAR Council must
make a written determination that it would not be in the best interest
of the Federal Government to exempt this law from contracts for the
procurement of commercial items. Similarly, prior to making this
statutory requirement applicable to COTS acquisitions, and pursuant to
section 35 of the OFPP Act, 41 U.S.C. 431, the Administrator of OFPP
must make a written determination that it would not be in the best
interest of the United States to exempt this law from contracts for
COTS items. The preamble to the proposed rule stated the intention of
the FAR Council and the Administrator to make the requisite best
interest determinations for applying this rule to commercial items and
COTS items respectively. The required determinations have been made
and, consistent with these determinations, the final rule has been
promulgated to cover acquisitions of commercial items and COTS.
b. Comments addressing the business rules for FAPIIS. One
respondent requested that the business rules discussed in the preamble
to the proposed rule be incorporated into the regulation. (The preamble
outlined principles to ensure timely availability of information and
proper use of the information while also protecting against improper
disclosure to the public.)
Response: The Councils have incorporated the business rules that
impact the contractor into a new clause addressing updates of
information regarding responsibility matters: (1) The Contractor will
receive notification when the Government posts new information to the
Contractor's record. (2) Only Government personnel and authorized users
conducting business on behalf of the Government can view system
information, with the exception that a Contractor can view its own
information. Public requests for information will be handled under the
Freedom of Information Act procedures including, where appropriate,
procedures promulgated under E.O. 12600. (3) The Contractor will have
an opportunity to post comments regarding information that has been
posted by the Government. The contractor comments will be retained as
long as the associated information is retained, i.e., for a total
period of six years. Contractor comments will remain a part of the
record unless the Contractor revises them.
c. Comments regarding potential redundancy of FAPIIS to pre-
existing systems. Several respondents indicated concern that FAPIIS is
duplicative of the current past performance systems (e.g., Past
Performance Information Retrieval System (PPIRS), Contractor
Performance Assessment Reporting System (CPARS), and the Excluded
Parties List System (EPLS)); and that the Government should provide a
one-stop shop for performance data.
Response: FAPIIS will provide a one-stop shop by providing a
central nexus of access to the information stored in various existing
systems. FAPIIS has been developed as a module within PPIRS and
provides links to the other existing sources of relevant information.
The information that will be entered directly into FAPIIS is not
duplicated in any of these other sources. The information entered by
contracting officers (e.g., terminations for default) will be entered
into FAPIIS via CPARS. Information required of the vendor regarding
criminal/civil/administrative proceedings through which a requisite
determination of fault was made will be entered via the Central
Contractor Registration (CCR) system. Vendor past performance
information will still be entered into PPIRS, and information regarding
suspension or debarment will still be entered into EPLS. FAPIIS will
then bring all of this information together for the authorized user's
access and review.
[[Page 14064]]
d. Comments addressing standardization of past performance data.
Several respondents made comments regarding the standardization of past
performance data in general-- i.e., that a standardized collection
format should be developed and applied across the agencies and an
unrestricted unique identifier for contractors be used. They are
concerned about the accuracy of overall past performance data
throughout the Federal procurement enterprise on which FAPIIS will be
partially relying.
Response: The Councils acknowledge the concern regarding
standardization of the collection of all past performance data in
general. As mentioned above, the Federal Government is making strides
to improve the collection of past performance information required by
FAR subpart 42.15. This includes the memorandum issued by the Office of
Federal Procurement Policy (OFPP) on July 29, 2009, which required the
submission of report cards to the Past Performance Information
Retrieval System (PPIRS). PPIRS has a standard format for report card
information, and provides that information to all authorized Government
users for use in source selection decisions. We are working to improve
compliance with the requirement to submit data to this system and to
improve the quality of the data submitted. As these efforts proceed,
the accuracy of the data should improve.
e. Comments raising technical issues. A number of commenters
offered technical corrections to the proposed rule.
Response: The Councils have made the following changes to the
proposed rule:
In response to a concern that language in FAR 9.104-6(d)
should be modified to ensure consistency with the application of the
standards to small business, the Councils deleted the coverage at FAR
9.104-3(d)(1)(ii) as duplicative of the language at FAR 9.105-2(b)(2).
The cross-reference at FAR 9.105-2(a)(1)(i) has been
deleted and the cross-reference at FAR 9.105-2(b)(1) has been added.
These paragraphs were rearranged to correctly differentiate between the
determination in paragraph (a) and documentation in paragraph (b).
In response to a concern that the word ``may'' in FAR
9.105-2(a)(2) suggested that a contracting officer need not necessarily
accept the SBA's decision to issue a Certificate of Competency, this
word has been changed to ``shall'' to reflect the conclusive nature of
the issuance of such a certificate.
The language in FAR 9.406-3 and FAR 9.407-3 have been
changed for consistency with the existing definitions at FAR 9.403 by
changing ``debarment official'' and ``suspension official'' to
``debarring official'' and ``suspending official,'' respectively.
In response to a concern that the rule asked offerors to
account for the accuracy of information submitted by Government
officials and others, FAR 52.209-7(c) has been revised to read ``. . .
by submission of this offer, that the information it has entered in the
Federal Awardee. . .'' in order to limit the certification to
information the contractor itself provided.
The introductory text of FAR 52.209-7(c)(1) has been
reworded to clarify that the provision only applies if the offeror was
the subject of a proceeding. Before this change, it was unclear
whether, for example, an offeror involved in litigation wherein a
different party was found liable would have to report that under this
clause.
The phrase ``maximum extent practicable and consistent
with all applicable laws and regulations. . .'' has been deleted from
FAR clause 52.209-7(c)(1)(iv).
Paragraph (d) of FAR provision 52.209-7 required an
ongoing responsibility to update information on a semi-annual basis in
FAPIIS. In response to several respondents who pointed out that this is
a post-award requirement, this paragraph has been removed from the
solicitation provision and incorporated into a new FAR clause, 52.209-
8.
In response to a concern that the phrase ``administrative
proceeding'' could be interpreted to include formal and informal
actions such as audit reports, the Councils have clarified the rule to
indicate that ``administrative proceeding'' does not include audit
reports.
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
C. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 this rule will only
impact an offeror that has failed to meet Government performance
requirements or standards for integrity and business ethics. The FAR
already contains standards for present responsibility of offerors. This
information system provides a tool to help contracting officers to
comply with existing requirements. Further, the final rule only imposes
an information collection requirement on small businesses that have
total Government grants and contracts exceeding $10 million, which
excludes most small businesses. No comments were received on the impact
on small business.
D. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) applies because the
final rule contains information collection requirements. Accordingly,
the Regulatory Secretariat has received approval of the new information
collection requirement concerning Federal Awardee Performance and
Integrity Information System from the Office of Management and Budget
under 44 U.S.C. Chapter 35, et seq. OMB Control number 9000-0174,
Information Regarding Responsibility Matters.
Annual Reporting Burden:
The final rule requires that for each solicitation of $500,000 or
more, the offeror responds as to whether it has, or has not, current
contracts and grants that total greater than $10,000,000. Only if the
offeror responds affirmatively is there any further information
collection requirement. Given that the amount of current Federal
contracts and grants is basic knowledge for any firm, the estimated
number of hours for this initial response is 0.1 hours. Using data from
the Federal Procurement Data System--Next Generation (FPDS-NG), it is
estimated that there will be approximately 12,000 - 14,000 contracts
over $500,000 each year. Estimating between five and six responses to
each solicitation, there will be 80,000 responses annually to the
question regarding contracts/grants exceeding $10 million.
Contractors awarded more than one contract will still only have to
input the data two times per year. It is estimated that 5,000
contractors will answer the first question affirmatively and then will
have to enter data into the website. We have used an average burden
estimate of 0.5 hours to enter the company's data into the website and
to do the semi-annual updates. This time estimate does not include the
time necessary to maintain the company's information internally. Most
large businesses and some small businesses probably have established
systems to track compliance. At this time, all or most Government
contractors have entered relevant company data in the Central
Contractor
[[Page 14065]]
Registration (CCR) in accordance with another information collection
requirement. Therefore, the estimate includes an average of 100 hours
per year for recordkeeping for each of the 5,000 respondents that will
be required to provide additional information, for a total of 500,000
annual recordkeeping hours. The total annual reporting burden is
estimated as follows:
Public reporting burden for this collection of information is
estimated to average 0.15 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The annual reporting burden is estimated as follows:
Respondents: 8,000.
Responses per respondent: Approximately 11.
Total annual responses: 90,000.
Preparation hours per response: Approximately 0.15 hours.
Response burden hours: 13,000.
Recordkeeping hours: 500,000.
Total burden hours: 513,000.
Comment: The Councils received several comments on the estimates
for the Information Collection requirements associated with the new
rule. One respondent considered that the estimate of .15 hours per
contractor was very low, considering its experience with computer
system access between the Federal Government and its institution. In
particular, one respondent thought that the estimates would have to be
increased because it did not cover the semi-annual updates to the data-
base.
Response: The estimate of .15 hours per response was a weighted
average between the respondents that did not have to enter any data
except a negative response with regard to having total contracts and
grants greater than $10 million (.1 hours), and those that would need
to provide further data to FAPIIS (.5 hours).
The estimates that were published with the proposed rule did cover
the semi-annual updates. The supporting statement that was submitted to
OMB specifically stated that two responses per respondent per year were
calculated for those respondents with contracts and grants greater than
$10 million, because of the requirement for semi-annual updates.
List of Subjects in 48 CFR Parts 2, 9, 12, 42, and 52
Government procurement.
Dated: March 18, 2010.
Al Matera,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 9, 12, 42, and 52
as set forth below:
0
1. The authority citation for 48 CFR parts 2, 9, 12, 42, and 52
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).
PART 2--DEFINITIONS OF WORDS AND TERMS
2.101 [Amended]
0
2. Amend section 2.101 in the definition ``Principal'' by removing
``subsidiary, division, or'' and adding ``division or'' in its place.
PART 9--CONTRACTOR QUALIFICATIONS
0
3. Amend section 9.101 by revising the section heading and adding, in
alphabetical order, the definition ``Administrative proceeding'' to
read as follows:
9.101 Definitions.
Administrative proceeding means a non-judicial process that is
adjudicatory in nature in order to make a determination of fault or
liability (e.g., Securities and Exchange Commission Administrative
Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed
Services Board of Contract Appeals Proceedings). This includes
administrative proceedings at the Federal and state level but only in
connections with performance of a Federal contract or grant. It does
not include agency actions such as contract audits, site visits,
corrective plans, or inspection of deliverables.
* * * * *
0
4. Amend section 9.104-3 by revising paragraph (d)(1) to read as
follows:
9.104-3 Application of standards.
* * * * *
(d)(1) Small business concerns. Upon making a determination of
nonresponsibility with regard to a small business concern, the
contracting officer shall refer the matter to the Small Business
Administration, which will decide whether to issue a Certificate of
Competency (see subpart 19.6).
* * * * *
0
5. Redesignate section 9.104-6 as 9.104-7, add new section 9.104-6, and
revise newly redesignated section 9.104-7 to read as follows:
9.104-6 Federal Awardee Performance and Integrity Information System.
(a) Before awarding a contract in excess of the simplified
acquisition threshold, the contracting officer shall review the Federal
Awardee Performance and Integrity Information System (FAPIIS),
(available at www.ppirs.gov, then select FAPIIS).
(b) The contracting officer shall consider all the information in
FAPIIS and other past performance information (see subpart 42.15) when
making a responsibility determination. For source selection evaluations
of past performance, see 15.305(a)(2). Contracting officers shall use
sound judgment in determining the weight and relevance of the
information contained in FAPIIS and how it relates to the present
acquisition. Since FAPIIS may contain information on any of the
offeror's previous contracts and information covering a five-year
period, some of that information may not be relevant to a determination
of present responsibility, e.g., a prior administrative action such as
debarment or suspension that has expired or otherwise been resolved, or
information relating to contracts for completely different products or
services.
(c) If the contracting officer obtains relevant information from
FAPIIS regarding criminal, civil, or administrative proceedings in
connection with the award or performance of a Government contract;
terminations for default or cause; determinations of nonresponsibility
because the contractor does not have a satisfactory performance record
or a satisfactory record of integrity and business ethics; or
comparable information relating to a grant, the contracting officer
shall, unless the contractor has already been debarred or suspended--
(1) Promptly request such additional information from the offeror
as the offeror deems necessary in order to demonstrate the offeror's
responsibility to the contracting officer (but see 9.405); and
(2) Notify, prior to proceeding with award,in accordance with
agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official
responsible for initiating debarment or suspension action, if the
information appears appropriate for the official's consideration.
(d) The contracting officer shall document the contract file for
each contract in excess of the simplified acquisition threshold to
indicate how the information in FAPIIS was considered in any
responsibility determination, as well as the action that
[[Page 14066]]
was taken as a result of the information. A contracting officer who
makes a nonresponsibility determination is required to document that
information in FAPIIS in accordance with 9.105-2 (b)(2).
9.104-7 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert the provision at 52.209-5,
Certification Regarding Responsibility Matters, in solicitations where
the contract value is expected to exceed the simplified acquisition
threshold.
(b) The contracting officer shall insert the provision at 52.209-7,
Information Regarding Responsibility Matters, in solicitations where
the resultant contract value is expected to exceed $500,000.
(c) The contracting officer shall insert the clause at 52.209-8,
Updates of Information Regarding Responsibility Matters--
(1) In solicitations where the resultant contract value is expected
to exceed $500,000; and
(2) In contracts in which the offeror checked ``has'' in paragraph
(b) of the provision 52.209-7.
0
6. Amend section 9.105-1 by revising the introductory text of paragraph
(c), removing paragraph (c)(1), and redesignating paragraphs (c)(2)
through (c)(6) as paragraphs (c)(1) through (c)(5). The revised text
reads as follows:
9.105-1 Obtaining information.
* * * * *
(c) In making the determination of responsibility, the contracting
officer shall consider information in FAPIIS (see 9.104-6), including
information that is linked to FAPIIS such as from the Excluded Parties
List System (EPLS) and the Past Performance Information Retrieval
System (PPIRS), and any other relevant past performance information
(see 9.104-1(c) and subpart 42.15). In addition, the contracting
officer should use the following sources of information to support such
determinations:
* * * * *
0
7. Amend section 9.105-2 by revising paragraphs (a)(2) and (b) to read
as follows:
9.105-2 Determinations and documentation.
(a) * * *
(2) If the contracting officer determines that a responsive small
business lacks certain elements of responsibility, the contracting
officer shall comply with the procedures in subpart 19.6. When a
Certificate of Competency is issued for a small business concern (see
subpart 19.6), the contracting officer shall accept the Small Business
Administration's decision to issue a Certificate of Competency and
award the contract to the concern.
(b) Support documentation. (1) Documents and reports supporting a
determination of responsibility or nonresponsibility, including any
preaward survey reports, the use of FAPIIS information (see 9.104-6),
and any applicable Certificate of Competency, must be included in the
contract file.
(2)(i) The contracting officer shall document the determination of
nonresponsibility in FAPIIS (available at www.cpars.csd.disa.mil, then
select FAPIIS) if--
(A) The contract is valued at more than the simplified acquisition
threshold;
(B) The determination of nonresponsibility is based on lack of
satisfactory performance record or satisfactory record of integrity and
business ethics; and
(C) The Small Business Administration does not issue a Certificate
of Competency.
(ii) The contracting officer is responsible for the timely
submission, within 3 working days, and sufficiency of the documentation
regarding the nonresponsibility determination.
9.404 [Amended]
0
8. Amend section 9.404 by removing from paragraph (c)(3) ``5 working''
and adding ``3 working'' in its place.
0
9. Amend section 9.406-3 by adding paragraph (f) to read as follows:
9.406-3 Procedures.
* * * * *
(f)(1) If the contractor enters into an administrative agreement
with the Government in order to resolve a debarment proceeding, the
debarring official shall access the website (available at
www.cpars.csd.disa.mil, then select FAPIIS) and enter the requested
information.
(2) The debarring official is responsible for the timely
submission, within 3 working days, and accuracy of the documentation
regarding the administrative agreement.
0
10. Amend section 9.407-3 by adding paragraph (e) to read as follows:
9.407-3 Procedures.
* * * * *
(e)(1) If the contractor enters into an administrative agreement
with the Government in order to resolve a suspension proceeding, the
suspending official shall access the website (available at
www.cpars.csd.disa.mil, then select FAPIIS) and enter the requested
information.
(2) The suspending official is responsible for the timely
submission, within 3 working days, and accuracy of the documentation
regarding the administrative agreement.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
0
11. Amend section 12.301 in paragraph (d) by adding paragraphs (d)(3)
and (d)(4) to read as follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(d) * * *
(3) Insert the provision at 52.209-7, Information Regarding
Responsibility Matters, as prescribed in 9.104-7(b).
(4) Insert the clause at 52.209-8, Updates of Information Regarding
Responsibility Matters, as prescribed in 9.104-7(c).
* * * * *
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
42.1503 [Amended]
0
12. Amend section 42.1503 in paragraph (e) by removing ``order.'' and
adding ``order, and information contained in the Federal Awardee
Performance and Integrity Information System (FAPIIS) e.g.,
terminations for default or cause.'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.203-13 [Amended]
0
13. Amend section 52.203-13 by removing from the clause heading ``(Dec
2008)'' and adding ``(Apr 2010)'' in its place; and removing from the
definition ``Principal'' the words ``subsidiary, division, or'' and
adding ``division or'' in its place.
52.209-5 [Amended]
0
14. Amend section 52.209-5 by--
0
a. Removing from the introductory paragraph ``9.104-6'' and adding
``9.104-7(a)'' in its place;
0
b. Removing from the clause heading ``(Dec 2008)'' and adding ``(Apr
2010)'' in its place;
0
c. Removing from paragraph (a)(1)(i)(B) ``state'' and adding ``State''
in its place, wherever it occurs (twice), and removing ``property;''
and adding ``property (if offeror checks ``have'', the offeror shall
also see 52.209-7, if included in this solicitation);'' in its place;
and
[[Page 14067]]
0
d. Removing from paragraph (a)(2) ``subsidiary, division, or'' and
adding ``division or'' in its place.
0
15. Add sections 52.209-7 and 52.209-8 to read as follows:
52.209-7 Information Regarding Responsibility Matters.
As prescribed at 9.104-7(b), insert the following provision:
INFORMATION REGARDING RESPONSIBILITY MATTERS (Apr 2010)
(a) Definitions. As used in this provision--
Administrative proceeding means a non-judicial process that is
adjudicatory in nature in order to make a determination of fault or
liability (e.g., Securities and Exchange Commission Administrative
Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed
Services Board of Contract Appeals Proceedings). This includes
administrative proceedings at the Federal and State level but only in
connection with performance of a Federal contract or grant. It does not
include agency actions such as contract audits, site visits, corrective
plans, or inspection of deliverables.
Federal contracts and grants with total value greater than
$10,000,000 means--
(1) The total value of all current, active contracts and grants,
including all priced options; and
(2) The total value of all current, active orders including all
priced options under indefinite-delivery, indefinite-quantity, 8(a), or
requirements contracts (including task and delivery and multiple-award
Schedules).
(b) The offeror [ ] has [ ] does not have current active Federal
contracts and grants with total value greater than $10,000,000.
(c) If the offeror checked ``has'' in paragraph (b) of this
provision, the offeror represents, by submission of this offer, that
the information it has entered in the Federal Awardee Performance and
Integrity Information System (FAPIIS) is current, accurate, and
complete as of the date of submission of this offer with regard to the
following information:
(1) Whether the offeror, and/or any of its principals, has or has
not, within the last five years, in connection with the award to or
performance by the offeror of a Federal contract or grant, been the
subject of a proceeding, at the Federal or State level that resulted in
any of the following dispositions:
(i) In a criminal proceeding, a conviction.
(ii) In a civil proceeding, a finding of fault and liability that
results in the payment of a monetary fine, penalty, reimbursement,
restitution, or damages of $5,000 or more.
(iii) In an administrative proceeding, a finding of fault and
liability that results in--
(A) The payment of a monetary fine or penalty of $5,000 or more; or
(B) The payment of a reimbursement, restitution, or damages in
excess of $100,000.
(iv) In a criminal, civil, or administrative proceeding, a
disposition of the matter by consent or compromise with an
acknowledgment of fault by the Contractor if the proceeding could have
led to any of the outcomes specified in paragraphs (c)(1)(i),
(c)(1)(ii), or (c)(1)(iii) of this provision.
(2) If the offeror has been involved in the last five years in any
of the occurrences listed in (c)(1) of this provision, whether the
offeror has provided the requested information with regard to each
occurrence.
(d) The offeror shall enter the information in paragraphs (c)(1)(i)
through (c)(1)(iv) of this provision in FAPIIS as required through
maintaining an active registration in the Central Contractor
Registration database at http://www.ccr.gov (see 52.204-7).
Principal means an officer, director, owner, partner, or a person
having primary management or supervisory responsibilities within a
business entity (e.g., general manager; plant manager; head of a
division or business segment; and similar positions).
(End of provision)
52.209-8 Updates of Information Regarding Responsibility Matters.
As prescribed at 9.104-7(c), insert the following clause:
UPDATES OF INFORMATION REGARDING RESPONSIBILITY MATTERS (Apr 2010)
(a) The Contractor shall update the information in the Federal
Awardee Performance and Integrity Information System (FAPIIS) on a
semi-annual basis, throughout the life of the contract, by entering the
required information in the Central Contractor Registration database at
http://www.ccr.gov (see 52.204-7).
(b)(1) The Contractor will receive notification when the Government
posts new information to the Contractor's record.
(2) The Contractor will have an opportunity to post comments
regarding information that has been posted by the Government. The
comments will be retained as long as the associated information is
retained, i.e., for a total period of 6 years. Contractor comments will
remain a part of the record unless the Contractor revises them.
(3) With the exception of the Contractor, only Government personnel
and authorized users performing business on behalf of the Government
will be able to view the Contractor's record in the system. Public
requests for system information will be handled under Freedom of
Information Act procedures, including, where appropriate, procedures
promulgated under E.O. 12600.
(End of clause)
52.212-5 [Amended]
0
16. Amend section 52.212-5 by--
0
a. Removing from the clause heading ``(Feb 2010)'' and adding ``(Apr
2010)'' in its place;
0
b. Removing from paragraphs (b)(2) and (e)(1)(i) ``(Dec 2008)'' and
adding ``(Apr 2010)'' in its place;
0
c. Removing from Alternate II ``(Dec 2009)'' and adding ``(Apr 2010)''
in its place; and
0
d. Removing from Alternate II paragraph (e)(1)(ii)(A) ``(Dec 2008)''
and adding ``(Apr 2010)'' in its place.
52.213-4 [Amended]
0
17. Amend section 52.213-4 by removing from the clause heading and
paragraph (a)(2)(vi) ``(Dec 2009)'' and adding ``(Apr 2010)'' in its
place.
52.244-6 [Amended]
0
18. Amend section 52.244-6 by removing from the clause heading ``(Dec
2009)'' and adding ``(Apr 2010)'' in its place; and removing from
paragraph (c)(1)(i) ``(Dec 2008)'' and adding ``(Apr 2010)'' in its
place.
[FR Doc. 2010-6329 Filed 3-22-10; 8:45 am]
BILLING CODE 6820-EP-S