[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Proposed Rules]
[Pages 45394-45396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21176]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 8, 12, 15, 42, and 49

[FAR Case 2008-016; Docket 2009-0032, Sequence 1]
RIN 9000-AL45


Federal Acquisition Regulation; FAR Case 2008-016, Termination 
for Default Reporting

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA),

[[Page 45395]]

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 establish procedures for 
contracting officers to provide contractor information into the Past 
Performance Information System (PPIRS). This case sets forth 
requirements for reporting defective cost or pricing data and 
terminations for cause or default. Evaluation of past performance 
information, especially terminations, manages risks associated with 
timely, effective and cost efficient completion of contracts, a key 
objective of the President's March 4, 2009, Memorandum on Government 
Contracting.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before November 2, 2009 to be considered 
in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAR case 2008-016 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2008-016'' into the field ``Keyword''. Select the link that 
corresponds with FAR Case 2008-016. Follow the instructions provided to 
submit your comment. Please include your name, company name (if any), 
and ``FAR Case 2008-016'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case 2008-
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: Ms. Beverly Cromer, Procurement 
Analyst, at (202) 501-1448 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2008-
016.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed case is subsequent to and supplements FAR Case 2006-
022, Contractor Performance Information, that was published in the 
Federal Register as a final rule on July 1, 2009 (74 FR 31557). FAR 
Case 2006-022 provided requirements for contractor performance 
information to be entered into PPIRS. This case, at the request of the 
Office of Federal Procurement Policy (OFPP), expands on FAR Case 2006-
022 by adding requirements for other contractor information to be 
entered into PPIRS, such as defective cost or pricing data and 
terminations for cause or default.
    The Councils further considered the memorandum issued by the Office 
of the Under Secretary of Defense, subject Termination Notification 
dated July 23, 2008, in drafting this proposed rule. (See 
www.acq.osd.mil/dpap/ops/policy_vault_archive.html.)
    This proposed FAR rule includes the following:
    1. Addition of language in FAR 8.406-8, Reporting, for the ordering 
activity contracting officer, in accordance with agency procedures, to 
ensure that information related to termination for cause notices and 
any amendments are included in PPIRS, and in the event the termination 
for cause is subsequently converted to a termination for convenience, 
or is otherwise withdrawn, the contracting officer shall ensure that a 
notice of the conversion or withdrawal is included in PPIRS.
    2. Addition of language in FAR 12.403(c)(4) for the contracting 
officer, in accordance with agency procedures, to ensure that 
information related to termination for cause notices and any amendments 
are included in PPIRS in accordance with FAR 42.1503(f), and, in the 
event the termination for cause is subsequently converted to a 
termination for convenience, or is otherwise withdrawn, the contracting 
officer shall ensure that a notice of the conversion or withdrawal is 
included in PPIRS.
    3. Addition of language in FAR 15.407-1(d) for the contracting 
officer, in accordance with agency procedures, to ensure that 
information relating to a determination that the contractor submitted 
defective cost or pricing data is provided for inclusion in PPIRS.
    4. Addition of language in FAR 42.1503(f) setting forth the 
procedure for contracting officers within 10 days after determining 
that a contractor has submitted defective cost or pricing data, or a 
termination for cause or default notice has been issued or any 
subsequent conversions or withdrawals have been issued, to ensure 
information related to these issues are provided for inclusion in 
PPIRS.
    5. Addition of language in FAR 49.402-8, Reporting Information, for 
the contracting officer, in accordance with agency procedures, to 
ensure that information relating to the termination for default notice 
and any subsequent conversions or withdrawals are provided for 
inclusion in PPIRS.
    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 does not impose any additional requirements on small 
businesses. The collection and reporting of contractor information is 
an internal process to the Government. 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 Parts 8, 12, 15, 42, and 49 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 2008-016), 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. Chapter 35, et seq.

List of Subjects in 48 CFR Parts 8, 12, 15, 42, and 49

    Government procurement.

    Dated: August 27, 2009.
Al Matera,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 8, 12, 
15, 42, and 49 as set forth below:
    1. The authority citation for 48 CFR parts 8, 12, 15, 42, and 49 
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 45396]]

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES

    2. Add section 8.406-8 to read as follows:


8.406-8  Reporting.

    An ordering activity contracting officer, in accordance with agency 
procedures, shall ensure that information related to termination for 
cause notices and any amendments are included in PPIRS in accordance 
with 42.1503(f). In the event the termination for cause is subsequently 
converted to a termination for convenience, or is otherwise withdrawn, 
the contracting officer shall ensure that a notice of the conversion or 
withdrawal is included in PPIRS.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

    3. Amend section 12.403 by adding paragraph (c)(4) to read as 
follows:


12.403  Termination.

* * * * *
    (c) * * *
    (4) The contracting officer, in accordance with agency procedures, 
shall ensure that information related to termination for cause notices 
and any amendments are included in PPIRS in accordance with 42.1503(f). 
In the event the termination for cause is subsequently converted to a 
termination for convenience, or is otherwise withdrawn, the contracting 
officer shall ensure that a notice of the conversion or withdrawal is 
included in PPIRS.
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

    4. Amend section 15.407-1 by adding a new sentence to the end of 
paragraph (d) to read as follows:


15.407-1   Defective cost or pricing data.

* * * * *
    (d) * * * When the contracting officer determines that the 
contractor submitted defective cost or pricing data, the contracting 
officer, in accordance with agency procedures, shall ensure that 
information relating to the determination is provided for inclusion in 
PPIRS in accordance with 42.1503(f).
* * * * *

PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES

    5. Amend section 42.1502 by adding paragraph (i) to read as 
follows:


42.1502  Policy.

* * * * *
    (i) Agencies shall promptly provide other contractor information 
for inclusion in PPIRS in accordance with 42.1503(f).
    6. Amend section 42.1503 by removing from paragraph (a) the words 
``office, end'' and adding ``office, audit office, end'' in its place; 
and adding paragraph (f) to read as follows:


42.1503  Procedures.

* * * * *
    (f) Other contractor information. Within 10 days after a 
contracting officer determines that a contractor has submitted 
defective cost or pricing data, or a termination for cause or default 
notice has been issued or any subsequent conversions or withdrawals 
have been issued, agencies shall ensure information related to these 
issues are provided for inclusion in PPIRS.

PART 49--TERMINATION OF CONTRACTS

    7. Add section 49.402-8 to read as follows:


49.402-8  Reporting Information.

    The contracting officer, in accordance with agency procedures, 
shall ensure that information relating to the termination for default 
notice and any subsequent conversions or withdrawals are provided for 
inclusion in PPIRS in accordance with 42.1503(f).
[FR Doc. E9-21176 Filed 9-1-09; 8:45 am]
BILLING CODE 6820-EP-S