[Federal Register Volume 73, Number 64 (Wednesday, April 2, 2008)]
[Proposed Rules]
[Pages 17945-17947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6795]


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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://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://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://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://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://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://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]
BILLING CODE 6820-EP-P