[Federal Register Volume 70, Number 118 (Tuesday, June 21, 2005)]
[Proposed Rules]
[Pages 35601-35602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12183]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 42

[FAR Case 2004-012]
RIN: 9000-AK20


Federal Acquisition Regulation; Past Performance Evaluation of 
Orders

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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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 require past performance 
evaluation of certain orders, and to ensure that subcontracting 
management is addressed during evaluation of a contractor's past 
performance.

DATES: Interested parties should submit comments in writing on or 
before August 22, 2005 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit comments identified by FAR case 2004-012 by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web Site: http://www.acqnet.gov/far/ProposedRules/proposed.htm. Click on the FAR case number to submit comments.
     E-mail: [email protected]. Include FAR case 2004-
012 in the subject line of the message.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case 2004-
012 in all correspondence related to this case. All comments received 
will be posted without change to http://www.acqnet.gov/far/ProposedRules/proposed.htm, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755 
for information pertaining to status or publication schedules. For 
clarification of content, contact Ms. Jeritta Parnell, Procurement 
Analyst, at (202) 501-4082. Please cite FAR case 2004-012.

SUPPLEMENTARY INFORMATION:

A. Background

    Currently, there is no FAR Part 42 requirement to evaluate a 
contractor's subcontract management efforts in performing under 
Government contracts. This proposed amendment will ensure that the 
acquisition community considers a prime contractor's management of 
subcontracts, including management of small business subcontracting 
plan goals, as part of the overall assessment of performance on 
contracts and orders. The effect of this amendment is that subcontract 
management efforts will be recorded for use in past performance 
evaluations during source selection.
    This proposed amendment will add a requirement for contracting 
officers to evaluate a contractor's management of subcontracts, 
including meeting the goals in its small business subcontracting plans, 
and evaluate past performance on--
     Orders exceeding $100,000 placed against a Federal Supply 
Schedule contract or a task-order contract or delivery-order contract 
awarded by another agency (i.e., Governmentwide acquisition contract or 
multi-agency contract);
     Single agency task-order and delivery-order contracts over 
$100,000 when such evaluations would produce more useful past 
performance information for source selection than in the overall 
contract evaluation.
    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 rule 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 merely enhances clarity of current agency business 
practices. An Initial Regulatory Flexibility Analysis has, therefore, 
not been performed. We invite comments from small businesses and other 
interested parties. The Councils will consider comments from small 
entities concerning the affected FAR Part 42 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 2004-012), 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 Part 42

    Government procurement.

    Dated: June 15, 2005.
Julia B. Wise,
Director, Contract Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR part 42 as 
set forth below:

PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES

    1. The authority citation for 48 CFR part 42 is revised to read as 
follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).


42.1501  [Amended]

    2. Amend section 42.1501, in the second sentence, by adding after 
the word ``satisfaction;'' the phrase ``the contractor's management of 
subcontracts, including meeting the goals in its subcontracting 
plans;''.
    3. Revise section 42.1502 to read as follows:


42.1502  Policy.

    (a) Except as provided in paragraph (d) of this section, agencies 
shall prepare an evaluation of contractor performance at the time the 
work under the contract or order is completed--
    (1) For each contract in excess of $100,000;
    (2) For each order in excess of $100,000 placed against a Federal 
Supply Schedule contract or a task-order contract or delivery-order 
contract awarded by another agency (i.e., Governmentwide acquisition 
contract or multi-agency contract); and
    (3) For single agency task order and delivery order contracts, the 
contracting officer may require performance evaluations for each order 
in excess of $100,000 when such evaluations would

[[Page 35602]]

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).
    (b) 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.
    (c) The evaluation of contractor performance is generally for the 
entity, division, or unit that performed the contract or order. The 
content and format of performance evaluations shall be established in 
accordance with agency procedures and should be tailored to the size, 
content, and complexity of the contractual requirements. These 
procedures shall require 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.
    (d) Agencies shall not evaluate performance for contracts awarded 
under Subpart 8.7. Agencies shall evaluate construction contractor 
performance and architect/engineer contractor performance in accordance 
with 36.201 and 36.604, respectively.
    4. Amend section 42.1503 by revising paragraph (a); and removing 
from paragraph (e) the word ``contract''. The revised text reads as 
follows:


42.1503  Procedures.

    (a) Agency procedures for past performance evaluations will 
generally include input from the technical office, contracting office 
and, where appropriate, end users of the product or service.
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[FR Doc. 05-12183 Filed 6-20-05; 8:45 am]
BILLING CODE 6820-EP-S