[Federal Register Volume 78, Number 152 (Wednesday, August 7, 2013)]
[Proposed Rules]
[Pages 48123-48125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18955]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 42
[FAR Case 2012-028; Docket 2012-0028; Sequence 1]
RIN 9000-AM40
Federal Acquisition Regulation; Contractor Comment Period, Past
Performance Evaluations
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement provisions of law limiting
the periods allowed for contractor comments on past performance
evaluations and making past performance evaluations available to source
selection officials sooner.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addressees shown below on or
before October 7, 2013 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2012-028 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2012-028''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2012-028''. Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2012-028'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street NW., 2nd Floor,
Washington, DC 20405-0001.
Instructions: Please submit comments only and cite FAR Case 2012-
028, 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: Mr. Curtis E. Glover, Sr., Procurement
[[Page 48124]]
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 2012-028.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the Federal Acquisition
Regulation (FAR) to implement section 853 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239,
enacted January 2, 2013) and section 806 of the NDAA for FY 2012 (Pub.
L. 112-81, enacted December 31, 2011, 10 U.S.C. 2302 Note). Section
853, entitled ``Inclusion of Data on Contractor Performance in Past
Performance Databases for Executive Agency Source Selection
Decisions'', and section 806, entitled ``Inclusion of Data on
Contractor Performance in Past Performance Databases for Source
Selection Decisions'', require revisions to the acquisition regulations
on past performance evaluations so that contractors are provided ``up
to 14 calendar days . . . from the date of delivery'' of past
performance evaluations ``to submit comments, rebuttals, or additional
information pertaining to past performance'' for inclusion in the
database. In addition, paragraph (c) of both sections 853 and 806
requires that agency evaluations of contractor performance, including
any information submitted by contractors, be ``included in the relevant
past performance database not later than the date that is 14 days after
the date of delivery of the information'' (section 853(c)) to the
contractor.
II. Discussion and Analysis
The FAR addresses Governmentwide rules for past performance
evaluations at FAR subpart 42.15, Contractor Performance Information.
The Contractor Performance Assessment Reporting System (CPARS)
processes the assessment and provides it to the Past Performance
Information Retrieval System (PPIRS), so agency source selection
officials can review the reports. CPARS provides an automatic
notification to the contractor when a past performance evaluation has
been submitted to the system and is available for contractor comment.
This is the equivalent of ``providing'' the past performance evaluation
to the contractor, and it starts the suspense period for contractor
comment or rebuttal.
It is important for past performance information to be shared with
source selection officials immediately, so that award decisions can be
better informed and made in a more timely manner. Currently, however,
FAR 42.1503(b) provides ``a minimum of 30 days'' for contractor
comments, rebutting statements, or additional information in response
to the Government's past performance evaluation, and the past
performance evaluation is not made available until after the
contractor's comments have been made. This rule proposes a change in
contractors' response procedures. The statutes are clear: Contractors
will have a maximum of 14 days to provide comments before posting to
PPIRS. In addition, the law now requires that past performance
evaluations be available to source selection officials not later than
14 days after the evaluation was provided to the contractor, whether or
not contractor comments have been received. This is likely to serve as
an impetus to contractors to meet the 14 calendar day's deadline for
comments. Having a past performance evaluation, with the contractor's
comments and explanations included, available to source selection
officials within 14 days will be to the advantage of most contractors.
These timely evaluations will allow contractors who are meeting their
contractual obligations to be more competitive for future awards.
When a contractor is unable to provide comments within 14 days,
however, the proposed changes to CPARS and PPIRS will enable the
contractor's comments to be added to the past performance evaluation
after the evaluation has been moved into PPIRS. In addition, the
planned system changes will allow the Government to revise a past
performance evaluation in PPIRS if the Government determines, after the
14-day period has expired, that corrections should be made to the past
performance evaluation. This rule proposes to amend FAR 42.1503(d) and
(f).
OFPP has issued guidance and is working with agencies to improve
their past performance reporting compliance to ensure this valuable
performance information is shared with source selection officials.
Timely reporting of this information will be crucial to the successful
implementation of this regulation. Expediting the time allotted to
contractors to respond to performance evaluations should improve
communication between the contractor and the Government, enable current
information to be shared quickly throughout the Government, and
ultimately ensure the Government does business with high performing
contractors. In keeping with the FAR retrospective plan, which promotes
public consultation and outreach, the Councils would like to hear your
substantive comments on: how the expedient posting of these reports in
the system may impact your business; and ways to limit any extra
burden, if any, this requirement is having on your business.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 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). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA 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 contractor comments on their past performance evaluations
are already allowed by FAR subpart 42.15. However, an Initial
Regulatory Flexibility Analysis (IRFA) has been prepared and is
summarized as follows:
The analysis is summarized as follows:
Section 806 of the National Defense Authorization Act (NDAA) for
Fiscal Year 2012 (Pub. L. 112-81, enacted December 31, 2011), is
entitled ``Inclusion of Data on Contractor Performance in Past
Performance Databases for Source Selection Decisions''. Paragraph
(c) of section 806 mandates DFARS revisions so that contractors are
provided ``up to 14 calendar days from the date of delivery'' to
them of past performance evaluations ``to submit comments,
rebuttals, or additional information pertaining to past
performance'' for inclusion in the database. In addition, section
806(c) requires that DoD agency evaluations of contractor
performance, including any information submitted by contractors, be
``included in the relevant past performance database not later than
14 days after the date of delivery of the information'' to the
contractor.
Section 853 of the NDAA for FY 2013 (Pub. L. 112-239, enacted
January 2, 2013) is entitled ``Inclusion of Data on Contractor
Performance in Past Performance Databases
[[Page 48125]]
for Executive Agency Source Selection Decisions'', and it extends
the requirements of section 806 to all Executive agencies.
The FAR addresses Governmentwide rules for past performance
evaluations at FAR subpart 42.15, Contractor Performance
Information. The databases selected by the Office of Management and
Budget (OMB) for these evaluations are the Contractor Performance
Assessment Reporting System (CPARS) and the Past Performance
Information Retrieval System (PPIRS). CPARS provides an automatic
notification to the contractor when a past performance evaluation
has been submitted to the system and is available for contractor
comment. This is the equivalent of ``providing'' the past
performance evaluation to the contractor, and it starts the 14 day
suspense period for contractor comment or rebuttal. CPARS processes
the assessment and provides it to PPIRS.
The rule proposes a change in contractors' response procedures.
Instead of allowing ``at least 30 days'' for a contractor's response
to the past performance evaluation, contractors will have a maximum
of 14 days to do so. In addition, the statute now requires that past
performance evaluations be available to source selection officials
not later than 14 days after the evaluation was provided to the
contractor, whether or not contractor comments have been received.
However, the proposed changes to the systems will enable a
contractor's comments to be added to the past performance evaluation
after the evaluation has been moved into PPIRS; these changes will
also allow the Government to revise a past performance evaluation in
PPIRS if the Government determines, after the 14 day period has
expired, that it was in error.
The proposed rule would apply to all small businesses for which
past performance evaluations are completed. OMB Control Number 9000-
0142, renewed in 2012, is the source for the data used in this IRFA.
It indicates that an estimated 150,000 respondents submit an average
of four responses annually, for a total of 600,000 responses. Data
from the Federal Procurement Data System (FPDS) for Fiscal Year 2011
show that approximately 32 percent of the relevant actions of the
responses are from small businesses, so this rule would apply to
approximately 48,000 small entities.
The requirement to conduct past performance evaluations is not
new. The differences between the current FAR past performance
evaluation requirements (see FAR subpart 42.15) and this proposed
rule are that the law reduces the time allowed for a contractor to
submit comments, rebuttals, or additional information pertaining to
past performance for inclusion in the past performance database from
``a minimum of 30 days'' (FAR 42.1503(b)) to ``up to 14 calendar
days'', and the law now requires that past performance evaluations
be available to source selection officials not later than 14 days
after the evaluation was provided to the contractor, whether or not
contractor comments have been received.
There are no new reporting, recordkeeping, or other compliance
requirements created by the proposed rule. The rule does not
duplicate, overlap, or conflict with any other Federal rules.
DoD, GSA, and NASA did not identify any alternatives that would
comply with the applicable statutes. The laws do not provide for any
exemptions for small entities.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in consistent with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR case 2012-028) in
correspondence.
V. Paperwork Reduction Act
This rule affects the certification and information collection
requirements in the provision at FAR subpart 42.15, currently approved
under the OMB Control Number 9000-0142, titled, Past Performance
Information; in the amount of 1,200,000 hours, in accordance with the
Paperwork Reduction Act (44 U.S.C. chapter 35). This rule would shorten
the contractors' response time, but it would not expand the reporting
requirement. The impact, however, is negligible because contractors are
already allowed to submit comments, rebutting statements, or additional
information regarding agency evaluations of their performance. The
number of contractors providing comments will be unaffected by this
rule. Further, the type of information provided is not impacted by this
proposed rule.
List of Subject in 48 CFR Part 42
Government procurement.
Dated: July 31, 2013.
William Clark,
Acting Director, Office of Government-wide Acquisition Policy, Office
of Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR part 42 as
set forth below:
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
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 51
U.S.C. 20113.
0
2. Amend section 42.1503 by revising the third sentence in paragraph
(d); and revising paragraph (f) to read as follows:
42.1503 Procedures.
* * * * *
(d) * * * Contractors shall be afforded up to 14 calendar days from
the date of notification of availability of the past performance
evaluation to submit comments, rebutting statements, or additional
information. * * *
* * * * *
(f) Agencies shall prepare and submit all past performance
evaluations electronically in the CPARS at http://www.cpars.gov. These
evaluations, including any contractor-submitted information (with
indication whether agency review is pending), are automatically
transmitted to PPIRS at http://www.ppirs.gov not later than 14 days
after the date on which the contractor is notified of the evaluation's
availability for comment. The Government shall update PPIRS with any
contractor comments provided after 14 days, as well as any subsequent
agency review of comments received. Past performance evaluations for
classified contracts and special access programs shall not be reported
in CPARS, but will be reported as stated in this subpart and in
accordance with agency procedures. Agencies shall ensure that
appropriate management and technical controls are in place to ensure
that only authorized personnel have access to the data and the
information safeguarded in accordance with 42.1503(d).
* * * * *
[FR Doc. 2013-18955 Filed 8-6-13; 8:45 am]
BILLING CODE 6820-EP-P