[Federal Register Volume 76, Number 128 (Tuesday, July 5, 2011)]
[Rules and Regulations]
[Pages 39015-39018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16632]



48 CFR Part 1509, 1542 and 1552

[EPA-HQ-OARM-2010-1032; FRL-9428-6]

Contractor Performance Information

AGENCY: Environmental Protection Agency (EPA),

ACTION: Direct final rule.


SUMMARY: The Environmental Protection Agency is issuing a final rule to 
amend the Environmental Protection Agency Acquisition Regulation 
(EPAAR) to establish new procedures for recording and maintaining 
contractor performance information. EPA is issuing a final rule because 
the changes are procedural in nature, and we do not anticipate any 
adverse comments.

DATES: This rule is effective October 3, 2011 without further action, 
unless adverse comment is received by August 4, 2011. If adverse 
comment is received, the EPA will publish a timely withdrawal of the 
rule in the Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OARM-2010-1032, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-1753.
     Mail: EPA-HQ-OARM-2010-1032, OEI Docket, Environmental 
Protection Agency, 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460. Please include a total of three (3) copies.
     Hand Delivery: EPA Docket Center-Attention OEI Docket, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC 20004. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OARM-2010-
1032. EPA's policy is that all comments received will be included in 
the public docket without change, and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket, and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment, and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties, and cannot contact you for clarification, EPA 
may not be able to consider your comment.

[[Page 39016]]

Electronic files should avoid the use of special characters, any form 
of encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov, or in hard copy at the Government 
Property-Contract Property Administration Docket, EPA/DC, EPA West, 
Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the EPA 
Docket Center is (202) 566-1752. This Docket Facility is open from 8:30 
a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Staci Ramrakha, Policy, Training, and 
Oversight Division, Acquisition Policy and Training Service Center 
(3802R), Environmental Protection Agency, 1200 Pennsylvania Avenue, 
NW., Washington DC 20460; telephone number: (202) 564-2017; e-mail 
address: [email protected].


I. General Information

    1. Submitting Classified Business Information (CBI). Do not submit 
this information to EPA through http://www.regulations.gov or e-mail. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark 
the outside of the disk or CD-ROM as CBI, and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket.
    Information so marked will not be disclosed except in accordance 
with procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    The EPA recently transitioned from the National Institutes of 
Health's Contractor Performance System (CPS) to the Department of 
Defense's Contractor Performance Assessment Reporting System (CPARS). 
As a result, the requirement to use CPS is being removed from the EPAAR 
and applicable CPARs instructions are being added. In addition, all 
past performance requirements are being moved from subpart 1509 to 1542 
in order to align with past performance information in the FAR.

III. Final Rule

    This final rule makes the following changes: (1) Remove EPAAR 1509-
170, Contractor Performance Evaluations; (2) Remove EPAAR clause 
1552.209-76, Contractor Performance Evaluations; (3) Add EPAAR 1542.15, 
Contractor Performance Information; (4) Add EPAAR 1552.242-71, 
Contractor Performance Evaluations.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impact of today's proposed rule on 
small entities, ``small entity'' is defined as: (1) A small business 
that meets the definition of a small business found in the Small 
Business Act and codified at 13 CFR 121.201; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; or 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated, and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, because the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. Since 
documenting past performance is applicable to large and small entities, 
this rule will not have a significant economic impact on small 
entities. We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome

[[Page 39017]]

comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Any private sector costs for this action relate to paperwork 
requirements and associated expenditures that are far below the level 
established for UMRA applicability. Thus, this rule is not subject to 
the requirements of sections 202 or 205 of UMRA. This rule is also not 
subject to the requirements of section 203 of UMRA because it contains 
no regulatory requirements that might significantly or uniquely affect 
small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Thus, Executive Order 13132 does 
not apply to this action. In the spirit of Executive Order 13132, and 
consistent with EPA policy to promote communications between EPA and 
State and local governments, EPA specifically solicits comment on this 
proposed action from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). Thus, Executive 
Order 13175 does not apply to this action. In the spirit of Executive 
Order 13175, and consistent with EPA policy to promote communication 
between EPA and Tribal governments, EPA specifically solicits 
additional comment on this proposed rule from Tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 

K. Congressional Review

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of agency organization, procedure, or practice 
that does not substantially affect the rights or obligations of non-
agency parties.

List of Subjects in 48 CFR Parts 1509, 1542 and 1552

    Environmental protection, Contractor performance information, 
Describing agency needs.

    Dated: June 27, 2011.
John R. Bashista,
Director, Office of Acquisition Management.

    Therefore, 48 CFR Chapter 15 is amended as set forth below:

1. The authority citation for 48 CFR parts 1509, 1542 and 1552 
continues to read as follows:

5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 
486(c); and 41 U.S.C. 418b


Subpart 1509.170 [Removed]

2. Remove subpart 1509.170, consisting of 1509.170-1 through 1509.170-


3. Add subpart 1542.15, consisting of 1542.1500 and 1542.1502 through 
1542.1504, to read as follows:
Subpart 1542.15--Contractor Performance Information
1542.1500 Scope of subpart.
1542.1502 Policy.
1542.1503 Procedures.
1542.1504 Clauses.

Subpart 1542.15--Contractor Performance Information

Sec.  1542.1500   Scope of subpart.

    This subpart provides EPA policies and establishes responsibilities 
for recording and maintaining contractor performance information.

[[Page 39018]]

Sec.  1542.1502   Policy.

    EPA contracting officers shall prepare an evaluation of contractor 
performance for all applicable contracts and orders with a total 
estimated value greater than the simplified acquisition threshold in 
accordance with FAR 42.1502. For acquisitions involving options, the 
total estimated value of the acquisition shall include the estimated 
base amount plus the option(s) amount(s). Evaluations shall be 
completed no later than 120 days after the end of the evaluation 

Sec.  1542.1503   Procedures.

    (a) Past Performance Database. EPA contracting officers shall use 
the Contractor Performance Assessment Reporting System (CPARS) which 
has connectivity with the Past Performance Information Retrieval System 
    (b) Frequency and Types of Report. CPARS includes four types of 
reports: Initial, Intermediate, Final and Out-of-Cycle.
    (1) An initial report is required for new contracts/orders meeting 
the thresholds in FAR 42.15 with a period of performance greater than 
365 days. The initial CPAR must reflect evaluation of at least the 
first 180 days of performance and may include up to the first 365 days 
of performance.
    (2) Intermediate reports are due every 12 months throughout the 
entire period of the contract after the initial report and up to the 
final report. While formal reports are only required every 12 months, 
contracting officers should discuss past performance with contractors 
on an ongoing basis.
    (3) A final report shall be prepared upon contract completion. 
Contracts/orders with less than 365 days performance only require a 
final report. For contracts longer than 365 days, the final report is 
not cumulative and covers only the period of performance following the 
last intermediate report. Final past performance reports must be 
completed prior to contract closeout.
    (4) An out-of-cycle report may be prepared when there is a 
significant change of performance that alters the assessment in one or 
more evaluation areas. The contractor may request an Out-of-cycle 
report be prepared; however, the decision of whether or not to do so is 
at the discretion of the contracting officer. An out-of-cycle report 
does not alter the annual intermediate reporting requirement.
    (c) Preparing the Evaluation. The contracting officer's 
representative shall initiate all reviews and forward to the 
contracting officer for approval. The content of the evaluations shall 
be based on objective data supportable by program and contract 
management records. Remarks should be tailored to the contract type, 
size, content, and complexity. Contracting officers should provide 
their own input on the evaluation as applicable and obtain input from 
the program office, administrative contracting office, end users of the 
product or service, and any other technical or business advisor, as 
    (d) Small Business Subcontracting Plan. 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 FAR 52.219-9, Small Business 
Subcontracting Plan.
    (e) Novation Agreements/Name Changes. In cases of novations 
involving successors-in-interest, a final evaluation of the predecessor 
contractor's performance must be accomplished. The predecessor 
contractor's final past performance report shall cover the last 12 
months (or less) of contract or order performance. In cases of change-
of-name agreements, the system shall be changed to reflect the new 
contractor's name.
    (f) File Documentation. Copies of the evaluation, contractor 
response, and review comments (if any) shall be retained as part of the 
evaluation, and hard copies shall be contained in contract files.

Sec.  1542.1504   Clauses.

    EPA contracting officers shall insert the contract clause at 
1552.242-71 in all solicitations, contracts, and orders requiring past 
performance reports in accordance with FAR Subpart 42.1502. For 
acquisitions involving options, the total estimated value of the 
acquisition shall include the estimated base amount plus the option(s) 


Sec.  1552.209-76   [Removed]

4. Remove 1552.209-76.

5. Add 1552.242-71 to read as follows:

Sec.  1552.242-71   Contractor performance evaluations.

    As prescribed in section 1542.1504, insert the following clause in 
all applicable solicitations and contracts.

Contractor Performance Evaluations

    In accordance with Federal Acquisition Regulation (FAR) Subpart 
42.15 and EPAAR 1542.15, the EPA will prepare and submit past 
performance evaluations to the Past Performance Information 
Retrieval System (PPIRS). Evaluation reports will be documented not 
later than 120 days after the end of an evaluation period by using 
the Contractor Performance Assessment Reporting System (CPARS) which 
has connectivity with PPIRS. Contractors must register in CPARS in 
order to view/comment on their past performance reports.

[FR Doc. 2011-16632 Filed 7-1-11; 8:45 am]