[Federal Register Volume 76, Number 75 (Tuesday, April 19, 2011)]
[Proposed Rules]
[Pages 21851-21852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8962]

[[Page 21851]]



Defense Acquisition Regulations System

48 CFR Part 236

RIN 0750-AG91

Defense Federal Acquisition Regulation Supplement; Construction 
and Architect-Engineer Services Performance Evaluation (DFARS Case 

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Proposed rule.


SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to remove the requirement to use DoD-
unique forms to prepare contractor performance evaluations for 
construction and architect-engineer services.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before June 20, 2011, to be considered in 
the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2010-D024, 
using any of the following methods:
    Regulations.gov, http://www.regulations.gov. Submit comments via 
the Federal eRulemaking portal by inputting ``DFARS Case 2010-D024'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2010-D024.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2010-D024'' on your attached document.
    E-mail: [email protected]. Include DFARS Case 2010-D024 in the subject 
line of the message.
    FAX: 703-602-0350.
    Mail: Defense Acquisition Regulations System, Attn: Mr. Manuel 
Quinones, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://regulations.gov, including any personal information provided. To 
confirm receipt of your comment, please check http://www.regulations.gov approximately two to three days after submission to 
verify posting, except allow 30 days for posting of comments submitted 
by mail.

FOR FURTHER INFORMATION CONTACT: Mr. Manuel Quinones, telephone 703-


I. Background

    This case removes the requirement to use DoD-unique forms to 
document contractor past performance for construction and Architect-
Engineer (A&E) services. Historically, the Federal Government collected 
past performance data for construction and A&E services on specific 
standard forms (SF 1420 and SF 1421, respectively). DoD collected the 
data on DD Form 2626, Performance Evaluation (Construction), and DD 
Form 2631, Performance Evaluation (Architect-Engineer), in lieu of the 
standard forms. The Federal Acquisition Regulation (FAR) has been 
updated to remove the standard forms in their entirety, as well as the 
procedures that accompanied them, and now points solely to the 
requirements of FAR subpart 42.15 for past-performance reporting for 
construction and A&E contracts.
    Earlier in 2010, consistent with the Office of Federal Procurement 
Policy memorandum dated July 29, 2008, Improving the Use of Contractor 
Performance Information, the Contractor Performance Assessment 
Reporting System (CPARS) was named as the sole system for collecting 
past-performance information. As such, CPARS will support 
Governmentwide data collection requirements for contractor past 
performance reporting, to include construction and A&E contracts, and 
DFARS is being updated to delete the outdated procedures and references 
to the obsolete DD forms.

II. Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. 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.

III. Regulatory Flexibility Act

    DoD has prepared an initial regulatory flexibility analysis 
consistent with 5 U.S.C. 603. A copy of the analysis may be obtained 
from the point of contact specified herein. The analysis is summarized 
as follows:
    This proposed rule addresses the removal of the procedures for use 
of and references to DD Forms 2626 and 2631 from DFARS. DFARS part 236 
supplemented the language previously included in the Federal 
Acquisition Regulation (FAR) that specified certain procedures and 
forms be used to document contractor performance for construction and 
A&E services. The FAR has been updated to remove those procedures and 
standard forms; FAR 36.201 and FAR 36.604 now refer to FAR 42.1502(e) 
for the requirements for preparing past performance evaluations.
    The objective of this rule is to remove the requirement to use DD 
Forms 2626, Performance Evaluation (Construction), and 2631, 
Performance Evaluation (Architect-Engineer), to evaluate contractor 
past performance. Since the Contractor Performance Assessment Report 
System (CPARS) is now the Governmentwide system for electronically 
collecting past performance data, there is no need to specify separate 
DoD-unique forms to collect the data.
    The number of small entities to be impacted by this proposed rule 
is unknown, however, due to the low dollar thresholds currently in 
place for reporting, it is expected that a large number of small 
entities will require past performance evaluations to be completed by 
Government personnel. Past performance evaluations are required for 
each construction contract of $650,000 or more and for each 
construction contract terminated for default regardless of contract 
value. For Architect and Engineer (A&E) services, past performance 
evaluations are required for contracts of $30,000 or more, and for each 
A&E contract that is terminated for default regardless of contract 
    The 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 the 
clarifications proposed require no additional effort by contractors as 
the changes simply update the DFARS to reflect the current automated 
process being used. CPARS is already being used by DoD personnel to 
report construction and A&E services contractor past performance, and 
the DFARS is merely being updated to

[[Page 21852]]

remove references to obsolete forms and procedures and reflect the 
current process. No start-up costs are expected as only Internet access 
is required should small entities elect to comment on their past 
performance rating in CPARS. This rule will not duplicate, overlap, or 
conflict with any other known Federal rule. There are no known 
alternatives to this proposed rule.
    DoD invites comments from small businesses and other interested 
parties on the expected impact of this rule on small entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2010-D024), in 

IV. Paperwork Reduction Act

    The proposed rule does not impose additional 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.).

List of Subjects in 48 CFR Part 236

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 236 is proposed to be amended as follows:
    1. The authority citation for 48 CFR part 236 continues to read as 

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.


236.201  [Removed]

    2. Section 236.201 is removed.
    3. Revise section 236.604 to read as follows:

236.604   Performance evaluation.

    Prepare a separate performance evaluation after actual construction 
of the project. Ordinarily, the evaluating official should be the 
person most familiar with the A-E's performance.

[FR Doc. 2011-8962 Filed 4-18-11; 8:45 am]