[Federal Register: January 24, 2011 (Volume 76, Number 15)]
[Rules and Regulations]
[Page 4188-4191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja11-16]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 9, 12, and 52
[FAC 2005-49; FAR Case 2010-016; Docket 2010-0016, Sequence 1]
RIN 9000-AL94
Federal Acquisition Regulation; Public Access to the Federal
Awardee Performance and Integrity Information System
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement section 3010 of
Supplemental Appropriations Act, 2010. Section 3010 requires that the
information in the Federal Awardee Performance and Integrity
Information System (FAPIIS), excluding past performance reviews, shall
be made publicly available. This interim rule notifies contractors of
this new statutory requirement for public access to FAPIIS and creates
a new FAR clause to support the posting of information in FAPIIS
consistent with section 3010. All information posted in FAPIIS on or
after April 15, 2011, except for past performance reviews, will be
publicly available.
DATES: Effective Date: January 24, 2011.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before March 25, 2011 to be considered
in the formulation of a final rule.
Applicability Date: This rule applies to solicitations issued on or
after January 24, 2011. Contracting officers are encouraged, to the
extent feasible, to amend existing solicitations in accordance with FAR
1.108(d), in order to include the clause at FAR 52.209-9 in contracts
to be awarded on or after January 24, 2011. Prior to April 15, 2011,
contracting officers shall bilaterally modify existing contracts,
including indefinite-delivery indefinite-quantity contracts, that
contain the clause 52.209-8, Updates of Information Regarding
Responsibility Matters, if a six-month update will be due on or after
April 15, 2011. The modification shall replace the clause 52.209-8 with
a new clause 52.209-9, Updates of Publicly Available Information
Regarding Responsibility Matters, Alternate I (JAN 2011). If the
contracting officer is unable to negotiate this modification prior to
April 15, 2011, the contracting officer shall obtain approval at least
one level above the contracting officer to negotiate an alternate
resolution.
ADDRESSES: Submit comments identified by FAC 2005-49, FAR Case 2010-
016, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2010-016'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds
[[Page 4189]]
with ``FAR Case 2010-016.'' Follow the instructions provided at the
``Submit a Comment'' screen. Please include your name, company name (if
any), and ``FAR Case 2010-016'' on your attached document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-49, FAR
Case 2010-016, in all correspondence related to this case. All comments
received will be posted without change to http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Mr. Edward Loeb, Procurement Analyst,
at (202) 501-0650 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at (202) 501-4755. Please cite FAC 2005-49, FAR Case 2010-
016.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a final rule in the Federal Register
at 75 FR 14059 on March 23, 2010, FAR Case 2008-027, Federal Awardee
Performance and Integrity Information System, to implement the
requirements of FAPIIS. This rule became effective on April 22, 2010.
That rulemaking and the associated launch of FAPIIS in April 2010 are
part of an ongoing effort by the Administration to enhance the
Government's ability to evaluate the business ethics and quality of
prospective contractors competing for Federal contracts. That
rulemaking also addresses requirements set forth in section 872 of the
Clean Contracting Act of 2008 (subtitle G of title VIII of Pub. L. 110-
417) (41 U.S.C. 417b) for a system containing specific information on
the integrity and performance of covered Federal agency contractors.
Additional information on FAR Case 2008-027 may be found in the Federal
Register at 75 FR 14059, March 23, 2010.
With respect to the availability of information in FAPIIS, section
872(e)(1) states, in pertinent part, that the Administrator of General
Services ``shall ensure that the information in the database is
available to appropriate acquisition officials of Federal agencies and
to such other government officials as the Administrator determines
appropriate.'' Section 3010 of the Supplemental Appropriations Act,
2010 (Pub. L. 111-212), enacted July 29, 2010, modifies section
872(e)(1) to require that the Administrator of General Services post
all FAPIIS information, excluding past performance reviews, on a
publicly available Web site. FAPIIS will now become the publicly
available Web site.
To comply with section 3010, this preamble contains instructions to
contracting officers on modifying existing contracts to incorporate the
new clause. To begin the transition process and lessen the number of
contracts that will require modification when the interim rule is
published, the Department of Defense's Director of Defense Procurement
and Acquisition Policy issued a Class Deviation for the Department on
October 12, 2010 (see http://www.acq.osd.mil/dpap/policy/policyvault/
USA005830-10-DPAP.pdf). On October 14, 2010, the Civilian Agency
Acquisition Council (CAAC) Chair issued a Consultation for Class
Deviation letter recommending that civilian agencies authorize a class
deviation (see https://www.acquisition.gov/comp/caac/caacletters/CAAC-
Letter-2011-01.pdf). Both the DoD deviation and the CAAC letter provide
a contract clause that complies with section 3010 and was expected to
be included in the interim rule. Agencies were encouraged to take
advantage of the deviations until this FAPIIS interim rule became
effective. To implement section 3010, the following steps have been, or
are being taken:
1. Enhanced FAPIIS functionality. The Managers of the FAPIIS
system, in consultation with the Civilian Agency Acquisition Council
and the Defense Acquisition Regulations Council (the Councils), are
making changes to the FAPIIS architecture to support the transparency
requirements of section 3010. The current architecture, consistent with
the rule effective on April 22, 2010, provides a one-stop information
system to help acquisition officials make informed decisions about an
offeror's business integrity, but lacks the functionality to make
information immediately available to the public as it is posted in the
system. On and after April 15, 2011, when system changes are completed,
information posted to FAPIIS by offerors, contractors, and Government
personnel will be publicly available in accordance with section 3010.
2. New FAR clause. The Councils have developed a new FAR clause
52.209-9, Updates of Publicly Available Information Regarding
Responsibility Matters, to replace the current FAR clause 52.209-8,
Updates of Information Regarding Responsibility Matters. The current
clause states that only Government personnel and authorized users
performing business on behalf of the Government will have access to a
contractor's record in the FAPIIS system. The new clause does not
include this statement but instead provides notice to contractors that
all information posted in FAPIIS on or after April 15, 2011, except
past performance reviews, will be publicly available. The new clause
also states that requests to review the information posted in FAPIIS
before April 15, 2011, will be subject to the Freedom of Information
Act (FOIA) process.
The new FAR clause will be implemented in the following manner:
a. New contracts. On or after the effective date of this interim
rule, contracting officers will be required to insert the FAR clause
52.209-9, in accordance with the prescription at FAR 9.104-7(c), in
solicitations issued on or after the date of this rule and resultant
contracts. As explained immediately above in paragraph 2. of this
Background, information posted under the new clause on or after April
15, 2011, except for past performance reviews, will be released to the
public. Information posted before April 15, 2011, will continue to be
handled under FOIA. However, the clause at FAR 52.209-9, Alternate I,
requires this information to be reposted if a six-month update will be
due on or after April 15, 2011. The reposted information will be made
available to the public.
b. Existing contracts. Prior to April 15, 2011, contracting
officers will be required to bilaterally modify existing contracts
(including indefinite-delivery indefinite-quantity contracts) that
contain the FAR clause 52.209-8, if a six-month update will be due on
or after April 15, 2011. The modification shall replace the FAR clause
52.209-8 with the new FAR clause 52.209-9. If the contracting officer
is unable to negotiate this modification prior to April 15, 2011, the
contracting officer will be required to obtain approval at least one
level above the contracting officer to negotiate an alternate
resolution.
3. FAPIIS and CCR Notice. A notice has been posted on the FAPIIS
Web site, available at http://www.cpars.csd.disa.mil/FAPIISmain.htm, as
well as on the Central Contractor Registration at http://www.ccr.gov
through which offerors submit certain information to FAPIIS to alert
offerors, contractors, and Government officials to the requirements of
section 3010 and the actions they need to take in
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implementing this law. For contracting officers, this includes taking
appropriate steps to ensure that they do not post information in the
system on or after April 15, 2011, that would create a harm protected
by a disclosure exemption under FOIA. For example, heightened attention
might need to be given to whether documentation supporting a non-
responsibility determination or termination for default decision should
be redacted before the determination or decision is posted.
The Federal Acquisition Regulatory Council (OFPP, DoD, GSA, and
NASA) are continuing to consider the need for additional regulatory or
other guidance to address the implementation of section 3010 and
welcome public comment on this issue.
Finally, this rule makes several conforming changes and technical
corrections:
FAR 9.104-7 and 12.301--Modifies the clause prescriptions
to prescribe the new clause.
FAR 52.209-7--Relocates the definition of ``Principal'',
in alphabetical order, in paragraph (a) of the clause.
II. Executive Order 12866
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.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this interim 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 this rule just notifies the contractors that the public
will have access to the database. The rule does not impose any new
burdens on small entities but just makes editorial changes to 52.209-7
and transfers the information collection requirement of 52.209-8 to new
clause 52.209-9.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. DoD, GSA, and NASA invite comments from small business
concerns and other interested parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-49, FAR Case
2010-016), in correspondence.
IV. Paperwork Reduction Act
The interim rule does not contain any new information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). The
existing burden hours for the information collection requirements that
will now be in 52.209-7 and 52.209-9 were initially approved under OMB
clearance 9000-0174 with regard to FAR Case 2008-027, with a reference
only to 52.209-7, because initially all burdens were included in that
provision. However, in the final rule under FAR Case 2008-027, the
ongoing portion of the reporting to FAPIIS was separated out of the FAR
provision 52.209-7 and incorporated into FAR clause 52.209-8. This
transfer did not change the number of approved hours. In this case, the
burden for 52.209-8 is transferred to 52.209-9, again without any
change to the burden hours initially approved under OMB clearance 9000-
0174.
V. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the rule implements section 3010 of the
Supplemental Appropriations Act, 2010 (Pub. L. 111-212), which was
signed on July 29, 2010, and was effective upon enactment. However,
pursuant to 41 U.S.C. 418b and FAR 1.501-3(b), DoD, GSA, and NASA will
consider public comments received in response to this interim rule in
the formation of the final rule.
List of Subjects in 48 CFR Parts 1, 9, 12, and 52
Government procurement.
Dated: January 19, 2011.
Michael O. Jackson,
Acting Director, Office of Governmentwide Acquisition Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 9, 12, and 52
as set forth below:
0
1. The authority citation for 48 CFR parts 1, 9, 12, 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106, in the table following the introductory text,
by adding in numerical sequence, FAR segment ``52.209-7'' and its
corresponding OMB Control Number ``9000-0174'', and FAR segment
``52.209-9'' and its corresponding OMB Control Number ``9000-0174''.
PART 9--CONTRACTOR QUALIFICATIONS
0
3. Amend section 9.104-7 by revising paragraph (c) to read as follows:
9.104-7 Solicitation provisions and contract clauses.
* * * * *
(c)(1) The contracting officer shall insert the clause at 52.209-9,
Updates of Publicly Available Information Regarding Responsibility
Matters--
(i) In solicitations where the resultant contract value is expected
to exceed $500,000; and
(ii) In contracts in which the offeror checked ``has'' in paragraph
(b) of the provision 52.209-7.
(2) For solicitations issued prior to April 15, 2011, and resultant
contracts, use the clause with its Alternate I.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
0
4. Amend section 12.301 by revising paragraph (d)(4) to read as
follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(d) * * *
(4)(i) Insert the clause at 52.209-9, Updates of Publicly Available
Information Regarding Responsibility Matters, as prescribed in 9.104-
7(c).
(ii) Use the clause with its Alternate I as prescribed in 9.104-
7(c)(2).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Amend section 52.209-7 by--
0
a. Revising the date of the provision;
0
b. Adding to paragraph (a), in alphabetical order, the definition
``Principal'';
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c. Removing from paragraph (d) the word ``enter'' and adding the word
``post'' in its place; and
0
d. Removing the undesignated paragraph that follows paragraph (d).
The revised and added text reads as follows:
[[Page 4191]]
52.209-7 Information Regarding Responsibility Matters.
* * * * *
Information Regarding Responsibility Matters (JAN 2011)
(a) * * *
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).
* * * * *
52.209-8 [Removed and reserved]
0
6. Remove and reserve section 52.209-8.
0
7. Add section 52.209-9 to read as follows:
52.209-9 Updates of Publicly Available Information Regarding
Responsibility Matters.
As prescribed at 9.104-7(c), insert the following clause:
Updates of Publicly Available Information Regarding Responsibility
Matters (JAN 2011)
(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 posting
the required information in the Central Contractor Registration
database at http://www.ccr.gov.
(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)(i) Public requests for system information posted prior to
April 15, 2011, will be handled under Freedom of Information Act
procedures, including, where appropriate, procedures promulgated
under E.O. 12600.
(ii) As required by section 3010 of Public Law 111-212, all
information posted in FAPIIS on or after April 15, 2011, except past
performance reviews, will be publicly available.
(End of clause)
Alternate I (JAN 2011). As prescribed in 9.104-7(c)(2),
redesignate paragraph (a) of the basic clause as paragraph (a)(1)
and add the following paragraph (a)(2):
(2) At the first semi-annual update on or after April 15, 2011,
the Contractor shall post again any required information that the
Contractor posted prior to April 15, 2011.
[FR Doc. 2011-1323 Filed 1-21-11; 8:45 am]
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