[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]


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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.

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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]
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