Federal Acquisition Regulation; Public Access to the Federal Awardee Performance and Integrity Information System, 4188-4191 [2011-1323]
Download as PDF
<![CDATA[
4188
Federal Register / Vol. 76, No. 15 / Monday, January 24, 2011 / Rules and Regulations
and National Aeronautics and Space
Administration (NASA).
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
ACTION:
Summary presentation of rules.
This document summarizes
the Federal Acquisition Regulation
(FAR) rules agreed to by DOD, GSA, and
NASA in this Federal Acquisition
Circular (FAC) 2005–49. A companion
document, the Small Entity Compliance
Guide (SECG), follows this FAC. The
FAC, including the SECG, is available
via the Internet at https://
www.regulations.gov.
SUMMARY:
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR 2011–0076, Sequence 1]
Federal Acquisition Regulation;
Federal Acquisition Circular 2005–49;
Introduction
Department of Defense (DoD),
General Services Administration (GSA),
AGENCY:
The
analyst whose name appears in the table
below in relation to each FAR case.
Please cite FAC 2005–49 and the
specific FAR case number. For
information pertaining to status or
publication schedules, contact the
Regulatory Secretariat at (202) 501–
4755.
FOR FURTHER INFORMATION CONTACT:
For effective dates see separate
documents, which follow.
DATES:
LIST OF RULE IN FAC 2005–49
Subject
FAR case
Public Access to the Federal Awardee Performance and Integrity Information System (Interim) ............................
A
summary for the FAR rule follows. For
the actual revisions and/or amendments
made by this FAR case, refer to FAR
Case 2010–016.
FAC 2005–49 amends the FAR as
specified below:
DEPARTMENT OF DEFENSE
Public Access to the Federal Awardee
Performance and Integrity Information
System (FAR Case 2010–016) (Interim)
48 CFR Parts 1, 9, 12, and 52
This interim rule amends the FAR to
implement section 3010 of the
Supplemental Appropriations Act, 2010
(Pub. L. 111–212), enacted July 29,
2010. Section 3010 requires that the
Administrator of the General Services
post all information contained in the
Federal Awardee Performance and
Integrity Information System (FAPIIS),
excluding past performance reviews, on
a publicly available Web site.
This interim rule notifies contractors
that FAPIIS data, excluding past
performance reviews, will be available
to the public after a certain date, and
creates a new FAR clause to support the
posting of information in FAPIIS.
Contracting officers are encouraged to
the extent feasible to amend existing
solicitations in accordance with FAR
1.108(d), in order to include this revised
clause in contracts to be awarded on or
after the effective date of this rule.
RIN 9000–AL94
mstockstill on DSKH9S0YB1PROD with RULES3
SUPPLEMENTARY INFORMATION:
Dated: January 19, 2011.
Michael O. Jackson,
Acting Director, Office of Governmentwide
Acquisition Policy.
[FR Doc. 2011–1324 Filed 1–21–11; 8:45 am]
BILLING CODE 6820–EP–P
VerDate Mar<15>2010
15:57 Jan 21, 2011
Jkt 223001
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
[FAC 2005–49; FAR Case 2010–016; Docket
2010–0016, Sequence 1]
Federal Acquisition Regulation; Public
Access to the Federal Awardee
Performance and Integrity Information
System
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
AGENCIES:
DoD, GSA, and NASA are
issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to
implement section 3010 of
Supplemental Appropriations Act,
2010. Section 3010 requires that the
information in the Federal Awardee
Performance and Integrity Information
System (FAPIIS), excluding past
performance reviews, shall be made
publicly available. This interim rule
notifies contractors of this new statutory
requirement for public access to FAPIIS
and creates a new FAR clause to support
the posting of information in FAPIIS
consistent with section 3010. All
information posted in FAPIIS on or after
April 15, 2011, except for past
performance reviews, will be publicly
available.
SUMMARY:
PO 00000
Frm 00002
Fmt 4701
Sfmt 4700
Loeb.
Effective Date: January 24, 2011.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
March 25, 2011 to be considered in the
formulation of a final rule.
Applicability Date: This rule applies
to solicitations issued on or after
January 24, 2011. Contracting officers
are encouraged, to the extent feasible, to
amend existing solicitations in
accordance with FAR 1.108(d), in order
to include the clause at FAR 52.209–9
in contracts to be awarded on or after
January 24, 2011. Prior to April 15,
2011, contracting officers shall
bilaterally modify existing contracts,
including indefinite-delivery indefinitequantity contracts, that contain the
clause 52.209–8, Updates of Information
Regarding Responsibility Matters, if a
six-month update will be due on or after
April 15, 2011. The modification shall
replace the clause 52.209–8 with a new
clause 52.209–9, Updates of Publicly
Available Information Regarding
Responsibility Matters, Alternate I (JAN
2011). If the contracting officer is unable
to negotiate this modification prior to
April 15, 2011, the contracting officer
shall obtain approval at least one level
above the contracting officer to negotiate
an alternate resolution.
ADDRESSES: Submit comments
identified by FAC 2005–49, FAR Case
2010–016, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2010–016’’ under
the heading ‘‘Enter Keyword or ID’’ and
selecting ‘‘Search.’’ Select the link
‘‘Submit a Comment’’ that corresponds
DATES:
GENERAL SERVICES
ADMINISTRATION
2010–016
Analyst
E:\FR\FM\24JAR3.SGM
24JAR3
Federal Register / Vol. 76, No. 15 / Monday, January 24, 2011 / Rules and Regulations
with ‘‘FAR Case 2010–016.’’ Follow the
instructions provided at the ‘‘Submit a
Comment’’ screen. Please include your
name, company name (if any), and ‘‘FAR
Case 2010–016’’ on your attached
document.
• Fax: (202) 501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Hada Flowers, 1275
First Street, NE., 7th Floor, Washington,
DC 20417.
Instructions: Please submit comments
only and cite FAC 2005–49, FAR Case
2010–016, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Mr.
Edward Loeb, Procurement Analyst, at
(202) 501–0650 for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–49, FAR
Case 2010–016.
SUPPLEMENTARY INFORMATION:
mstockstill on DSKH9S0YB1PROD with RULES3
I. Background
DoD, GSA, and NASA published a
final rule in the Federal Register at 75
FR 14059 on March 23, 2010, FAR Case
2008–027, Federal Awardee
Performance and Integrity Information
System, to implement the requirements
of FAPIIS. This rule became effective on
April 22, 2010. That rulemaking and the
associated launch of FAPIIS in April
2010 are part of an ongoing effort by the
Administration to enhance the
Government’s ability to evaluate the
business ethics and quality of
prospective contractors competing for
Federal contracts. That rulemaking also
addresses requirements set forth in
section 872 of the Clean Contracting Act
of 2008 (subtitle G of title VIII of Pub.
L. 110–417) (41 U.S.C. 417b) for a
system containing specific information
on the integrity and performance of
covered Federal agency contractors.
Additional information on FAR Case
2008–027 may be found in the Federal
Register at 75 FR 14059, March 23,
2010.
With respect to the availability of
information in FAPIIS, section 872(e)(1)
states, in pertinent part, that the
Administrator of General Services ‘‘shall
ensure that the information in the
database is available to appropriate
acquisition officials of Federal agencies
and to such other government officials
as the Administrator determines
appropriate.’’ Section 3010 of the
Supplemental Appropriations Act, 2010
VerDate Mar<15>2010
15:57 Jan 21, 2011
Jkt 223001
(Pub. L. 111–212), enacted July 29,
2010, modifies section 872(e)(1) to
require that the Administrator of
General Services post all FAPIIS
information, excluding past
performance reviews, on a publicly
available Web site. FAPIIS will now
become the publicly available Web site.
To comply with section 3010, this
preamble contains instructions to
contracting officers on modifying
existing contracts to incorporate the
new clause. To begin the transition
process and lessen the number of
contracts that will require modification
when the interim rule is published, the
Department of Defense’s Director of
Defense Procurement and Acquisition
Policy issued a Class Deviation for the
Department on October 12, 2010 (see
https://www.acq.osd.mil/dpap/policy/
policyvault/USA005830-10-DPAP.pdf).
On October 14, 2010, the Civilian
Agency Acquisition Council (CAAC)
Chair issued a Consultation for Class
Deviation letter recommending that
civilian agencies authorize a class
deviation (see https://
www.acquisition.gov/comp/caac/
caacletters/CAAC-Letter-2011-01.pdf).
Both the DoD deviation and the CAAC
letter provide a contract clause that
complies with section 3010 and was
expected to be included in the interim
rule. Agencies were encouraged to take
advantage of the deviations until this
FAPIIS interim rule became effective.
To implement section 3010, the
following steps have been, or are being
taken:
1. Enhanced FAPIIS functionality.
The Managers of the FAPIIS system, in
consultation with the Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council (the
Councils), are making changes to the
FAPIIS architecture to support the
transparency requirements of section
3010. The current architecture,
consistent with the rule effective on
April 22, 2010, provides a one-stop
information system to help acquisition
officials make informed decisions about
an offeror’s business integrity, but lacks
the functionality to make information
immediately available to the public as it
is posted in the system. On and after
April 15, 2011, when system changes
are completed, information posted to
FAPIIS by offerors, contractors, and
Government personnel will be publicly
available in accordance with section
3010.
2. New FAR clause. The Councils
have developed a new FAR clause
52.209–9, Updates of Publicly Available
Information Regarding Responsibility
Matters, to replace the current FAR
clause 52.209–8, Updates of Information
PO 00000
Frm 00003
Fmt 4701
Sfmt 4700
4189
Regarding Responsibility Matters. The
current clause states that only
Government personnel and authorized
users performing business on behalf of
the Government will have access to a
contractor’s record in the FAPIIS
system. The new clause does not
include this statement but instead
provides notice to contractors that all
information posted in FAPIIS on or after
April 15, 2011, except past performance
reviews, will be publicly available. The
new clause also states that requests to
review the information posted in FAPIIS
before April 15, 2011, will be subject to
the Freedom of Information Act (FOIA)
process.
The new FAR clause will be
implemented in the following manner:
a. New contracts. On or after the
effective date of this interim rule,
contracting officers will be required to
insert the FAR clause 52.209–9, in
accordance with the prescription at FAR
9.104–7(c), in solicitations issued on or
after the date of this rule and resultant
contracts. As explained immediately
above in paragraph 2. of this
Background, information posted under
the new clause on or after April 15,
2011, except for past performance
reviews, will be released to the public.
Information posted before April 15,
2011, will continue to be handled under
FOIA. However, the clause at FAR
52.209–9, Alternate I, requires this
information to be reposted if a sixmonth update will be due on or after
April 15, 2011. The reposted
information will be made available to
the public.
b. Existing contracts. Prior to April 15,
2011, contracting officers will be
required to bilaterally modify existing
contracts (including indefinite-delivery
indefinite-quantity contracts) that
contain the FAR clause 52.209–8, if a
six-month update will be due on or after
April 15, 2011. The modification shall
replace the FAR clause 52.209–8 with
the new FAR clause 52.209–9. If the
contracting officer is unable to negotiate
this modification prior to April 15,
2011, the contracting officer will be
required to obtain approval at least one
level above the contracting officer to
negotiate an alternate resolution.
3. FAPIIS and CCR Notice. A notice
has been posted on the FAPIIS Web site,
available at https://
www.cpars.csd.disa.mil/
FAPIISmain.htm, as well as on the
Central Contractor Registration at
https://www.ccr.gov through which
offerors submit certain information to
FAPIIS to alert offerors, contractors, and
Government officials to the
requirements of section 3010 and the
actions they need to take in
E:\FR\FM\24JAR3.SGM
24JAR3
4190
Federal Register / Vol. 76, No. 15 / Monday, January 24, 2011 / Rules and Regulations
implementing this law. For contracting
officers, this includes taking appropriate
steps to ensure that they do not post
information in the system on or after
April 15, 2011, that would create a harm
protected by a disclosure exemption
under FOIA. For example, heightened
attention might need to be given to
whether documentation supporting a
non-responsibility determination or
termination for default decision should
be redacted before the determination or
decision is posted.
The Federal Acquisition Regulatory
Council (OFPP, DoD, GSA, and NASA)
are continuing to consider the need for
additional regulatory or other guidance
to address the implementation of
section 3010 and welcome public
comment on this issue.
Finally, this rule makes several
conforming changes and technical
corrections:
• FAR 9.104–7 and 12.301—Modifies
the clause prescriptions to prescribe the
new clause.
• FAR 52.209–7—Relocates the
definition of ‘‘Principal’’, in alphabetical
order, in paragraph (a) of the clause.
mstockstill on DSKH9S0YB1PROD with RULES3
II. Executive Order 12866
This is a significant regulatory action
and, therefore, was 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, GSA, and NASA do not expect
this interim 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 this
rule just notifies the contractors that the
public will have access to the database.
The rule does not impose any new
burdens on small entities but just makes
editorial changes to 52.209–7 and
transfers the information collection
requirement of 52.209–8 to new clause
52.209–9.
Therefore, an Initial Regulatory
Flexibility Analysis has not been
performed. 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 the rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAC 2005–49, FAR Case 2010–016), in
correspondence.
VerDate Mar<15>2010
15:57 Jan 21, 2011
Jkt 223001
IV. Paperwork Reduction Act
The interim rule does not contain any
new 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). The existing burden
hours for the information collection
requirements that will now be in
52.209–7 and 52.209–9 were initially
approved under OMB clearance 9000–
0174 with regard to FAR Case 2008–027,
with a reference only to 52.209–7,
because initially all burdens were
included in that provision. However, in
the final rule under FAR Case 2008–027,
the ongoing portion of the reporting to
FAPIIS was separated out of the FAR
provision 52.209–7 and incorporated
into FAR clause 52.209–8. This transfer
did not change the number of approved
hours. In this case, the burden for
52.209–8 is transferred to 52.209–9,
again without any change to the burden
hours initially approved under OMB
clearance 9000–0174.
V. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because the rule
implements section 3010 of the
Supplemental Appropriations Act, 2010
(Pub. L. 111–212), which was signed on
July 29, 2010, and was effective upon
enactment. However, pursuant to 41
U.S.C. 418b and FAR 1.501–3(b), DoD,
GSA, and NASA will consider public
comments received in response to this
interim rule in the formation of the final
rule.
List of Subjects in 48 CFR Parts 1, 9, 12,
and 52
Government procurement.
Dated: January 19, 2011.
Michael O. Jackson,
Acting Director, Office of Governmentwide
Acquisition Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 1, 9, 12, and 52 as
set forth below:
1. The authority citation for 48 CFR
parts 1, 9, 12, and 52 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).
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
PART 1—FEDERAL ACQUISITION
REGULATIONS SYSTEM
1.106
[Amended]
2. Amend section 1.106, in the table
following the introductory text, by
adding in numerical sequence, FAR
segment ‘‘52.209–7’’ and its
corresponding OMB Control Number
‘‘9000–0174’’, and FAR segment
‘‘52.209–9’’ and its corresponding OMB
Control Number ‘‘9000–0174’’.
■
PART 9—CONTRACTOR
QUALIFICATIONS
3. Amend section 9.104–7 by revising
paragraph (c) to read as follows:
■
9.104–7 Solicitation provisions and
contract clauses.
*
*
*
*
*
(c)(1) The contracting officer shall
insert the clause at 52.209–9, Updates of
Publicly Available Information
Regarding Responsibility Matters—
(i) In solicitations where the resultant
contract value is expected to exceed
$500,000; and
(ii) In contracts in which the offeror
checked ‘‘has’’ in paragraph (b) of the
provision 52.209–7.
(2) For solicitations issued prior to
April 15, 2011, and resultant contracts,
use the clause with its Alternate I.
PART 12—ACQUISITION OF
COMMERCIAL ITEMS
4. Amend section 12.301 by revising
paragraph (d)(4) to read as follows:
■
12.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
*
*
*
*
*
(d) * * *
(4)(i) Insert the clause at 52.209–9,
Updates of Publicly Available
Information Regarding Responsibility
Matters, as prescribed in 9.104–7(c).
(ii) Use the clause with its Alternate
I as prescribed in 9.104–7(c)(2).
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
5. Amend section 52.209–7 by—
a. Revising the date of the provision;
b. Adding to paragraph (a), in
alphabetical order, the definition
‘‘Principal’’;
■ c. Removing from paragraph (d) the
word ‘‘enter’’ and adding the word ‘‘post’’
in its place; and
■ d. Removing the undesignated
paragraph that follows paragraph (d).
The revised and added text reads as
follows:
■
■
■
E:\FR\FM\24JAR3.SGM
24JAR3
4191
Federal Register / Vol. 76, No. 15 / Monday, January 24, 2011 / Rules and Regulations
52.209–7 Information Regarding
Responsibility Matters.
*
*
*
*
*
Information Regarding Responsibility
Matters (JAN 2011)
(a) * * *
Principal means an officer, director,
owner, partner, or a person having
primary management or supervisory
responsibilities within a business entity
(e.g., general manager; plant manager;
head of a division or business segment;
and similar positions).
*
*
*
*
*
52.209–8
[Removed and reserved]
as long as the associated information is
retained, i.e., for a total period of 6 years.
Contractor comments will remain a part of
the record unless the Contractor revises
them.
(3)(i) Public requests for system
information posted prior to April 15, 2011,
will be handled under Freedom of
Information Act procedures, including,
where appropriate, procedures promulgated
under E.O. 12600.
(ii) As required by section 3010 of Public
Law 111–212, all information posted in
FAPIIS on or after April 15, 2011, except past
performance reviews, will be publicly
available.
(End of clause)
Alternate I (JAN 2011). As prescribed in
9.104–7(c)(2), redesignate paragraph (a) of the
basic clause as paragraph (a)(1) and add the
following paragraph (a)(2):
(2) At the first semi-annual update on or
after April 15, 2011, the Contractor shall post
again any required information that the
Contractor posted prior to April 15, 2011.
6. Remove and reserve section
52.209–8.
■ 7. Add section 52.209–9 to read as
follows:
■
52.209–9 Updates of Publicly Available
Information Regarding Responsibility
Matters.
As prescribed at 9.104–7(c), insert the
following clause:
Updates of Publicly Available
Information Regarding Responsibility
Matters (JAN 2011)
(a) The Contractor shall update the
information in the Federal Awardee
Performance and Integrity Information
System (FAPIIS) on a semi-annual basis,
throughout the life of the contract, by posting
the required information in the Central
Contractor Registration database at https://
www.ccr.gov.
(b)(1) The Contractor will receive
notification when the Government posts new
information to the Contractor’s record.
(2) The Contractor will have an
opportunity to post comments regarding
information that has been posted by the
Government. The comments will be retained
and National Aeronautics and Space
Administration (NASA).
ACTION:
Small Entity Compliance Guide.
This document is issued
under the joint authority of DOD, GSA,
and NASA. This Small Entity
Compliance Guide has been prepared in
accordance with section 212 of the
Small Business Regulatory Enforcement
Fairness Act of 1996. It consists of a
summary of rules appearing in Federal
Acquisition Circular (FAC) 2005–49,
which amend the Federal Acquisition
Regulation (FAR). Interested parties may
obtain further information regarding
these rules by referring to FAC 2005–49,
which precedes this document. The
documents are also available via the
Internet at https://www.regulations.gov.
SUMMARY:
[FR Doc. 2011–1323 Filed 1–21–11; 8:45 am]
For effective dates see separate
documents, which follow.
BILLING CODE 6820–EP–P
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
DATES:
The
analyst whose name appears in the table
below. Please cite FAC 2005–49 and the
specific FAR case number. For
information pertaining to status or
publication schedules, contact the
Regulatory Secretariat at (202) 501–
4755.
48 CFR Chapter 1
[Docket FAR 2011–0077, Sequence 1]
Federal Acquisition Regulation;
Federal Acquisition Circular 2005–49;
Small Entity Compliance Guide
Department of Defense (DoD),
General Services Administration (GSA),
AGENCY:
LIST OF RULE IN FAC 2005–49
Subject
FAR case
Public Access to the Federal Awardee Performance and Integrity Information System (Interim) ............................
A
summary for the FAR rule follows. For
the actual revisions and/or amendments
made by this FAR case, refer to FAR
Case 2010–016.
FAC 2005–49 amends the FAR as
specified below:
mstockstill on DSKH9S0YB1PROD with RULES3
SUPPLEMENTARY INFORMATION:
Public Access to the Federal Awardee
Performance and Integrity Information
System (FAR Case 2010–016) (Interim)
This interim rule amends the FAR to
implement section 3010 of the
Supplemental Appropriations Act, 2010
VerDate Mar<15>2010
15:57 Jan 21, 2011
Jkt 223001
(Pub. L. 111–212), enacted July 29,
2010. Section 3010 requires that the
Administrator of the General Services
post all information contained in the
Federal Awardee Performance and
Integrity Information System (FAPIIS),
excluding past performance reviews, on
a publicly available Web site.
This interim rule notifies contractors
that FAPIIS data, excluding past
performance reviews, will be available
to the public after a certain date, and
creates a new FAR clause to support the
posting of information in FAPIIS.
PO 00000
Frm 00005
Fmt 4701
Sfmt 9990
2010–016
Analyst
Loeb.
Contracting officers are encouraged to
the extent feasible to amend existing
solicitations in accordance with FAR
1.108(d), in order to include this revised
clause in contracts to be awarded on or
after the effective date of this rule.
Dated: January 19, 2011.
Michael O. Jackson,
Acting Director, Office of Governmentwide
Acquisition Policy.
[FR Doc. 2011–1322 Filed 1–21–11; 8:45 am]
BILLING CODE 6820–EP–P
E:\FR\FM\24JAR3.SGM
24JAR3
]]>Agencies
[Federal Register Volume 76, Number 15 (Monday, January 24, 2011)]
[Rules and Regulations]
[Pages 4188-4191]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1323]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 9, 12, and 52
[FAC 2005-49; FAR Case 2010-016; Docket 2010-0016, Sequence 1]
RIN 9000-AL94
Federal Acquisition Regulation; Public Access to the Federal
Awardee Performance and Integrity Information System
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement section 3010 of
Supplemental Appropriations Act, 2010. Section 3010 requires that the
information in the Federal Awardee Performance and Integrity
Information System (FAPIIS), excluding past performance reviews, shall
be made publicly available. This interim rule notifies contractors of
this new statutory requirement for public access to FAPIIS and creates
a new FAR clause to support the posting of information in FAPIIS
consistent with section 3010. All information posted in FAPIIS on or
after April 15, 2011, except for past performance reviews, will be
publicly available.
DATES: Effective Date: January 24, 2011.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before March 25, 2011 to be considered
in the formulation of a final rule.
Applicability Date: This rule applies to solicitations issued on or
after January 24, 2011. Contracting officers are encouraged, to the
extent feasible, to amend existing solicitations in accordance with FAR
1.108(d), in order to include the clause at FAR 52.209-9 in contracts
to be awarded on or after January 24, 2011. Prior to April 15, 2011,
contracting officers shall bilaterally modify existing contracts,
including indefinite-delivery indefinite-quantity contracts, that
contain the clause 52.209-8, Updates of Information Regarding
Responsibility Matters, if a six-month update will be due on or after
April 15, 2011. The modification shall replace the clause 52.209-8 with
a new clause 52.209-9, Updates of Publicly Available Information
Regarding Responsibility Matters, Alternate I (JAN 2011). If the
contracting officer is unable to negotiate this modification prior to
April 15, 2011, the contracting officer shall obtain approval at least
one level above the contracting officer to negotiate an alternate
resolution.
ADDRESSES: Submit comments identified by FAC 2005-49, FAR Case 2010-
016, by any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2010-016'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds
[[Page 4189]]
with ``FAR Case 2010-016.'' Follow the instructions provided at the
``Submit a Comment'' screen. Please include your name, company name (if
any), and ``FAR Case 2010-016'' on your attached document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-49, FAR
Case 2010-016, in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Mr. Edward Loeb, Procurement Analyst,
at (202) 501-0650 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at (202) 501-4755. Please cite FAC 2005-49, FAR Case 2010-
016.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a final rule in the Federal Register
at 75 FR 14059 on March 23, 2010, FAR Case 2008-027, Federal Awardee
Performance and Integrity Information System, to implement the
requirements of FAPIIS. This rule became effective on April 22, 2010.
That rulemaking and the associated launch of FAPIIS in April 2010 are
part of an ongoing effort by the Administration to enhance the
Government's ability to evaluate the business ethics and quality of
prospective contractors competing for Federal contracts. That
rulemaking also addresses requirements set forth in section 872 of the
Clean Contracting Act of 2008 (subtitle G of title VIII of Pub. L. 110-
417) (41 U.S.C. 417b) for a system containing specific information on
the integrity and performance of covered Federal agency contractors.
Additional information on FAR Case 2008-027 may be found in the Federal
Register at 75 FR 14059, March 23, 2010.
With respect to the availability of information in FAPIIS, section
872(e)(1) states, in pertinent part, that the Administrator of General
Services ``shall ensure that the information in the database is
available to appropriate acquisition officials of Federal agencies and
to such other government officials as the Administrator determines
appropriate.'' Section 3010 of the Supplemental Appropriations Act,
2010 (Pub. L. 111-212), enacted July 29, 2010, modifies section
872(e)(1) to require that the Administrator of General Services post
all FAPIIS information, excluding past performance reviews, on a
publicly available Web site. FAPIIS will now become the publicly
available Web site.
To comply with section 3010, this preamble contains instructions to
contracting officers on modifying existing contracts to incorporate the
new clause. To begin the transition process and lessen the number of
contracts that will require modification when the interim rule is
published, the Department of Defense's Director of Defense Procurement
and Acquisition Policy issued a Class Deviation for the Department on
October 12, 2010 (see https://www.acq.osd.mil/dpap/policy/policyvault/USA005830-10-DPAP.pdf). On October 14, 2010, the Civilian Agency
Acquisition Council (CAAC) Chair issued a Consultation for Class
Deviation letter recommending that civilian agencies authorize a class
deviation (see https://www.acquisition.gov/comp/caac/caacletters/CAAC-Letter-2011-01.pdf). Both the DoD deviation and the CAAC letter provide
a contract clause that complies with section 3010 and was expected to
be included in the interim rule. Agencies were encouraged to take
advantage of the deviations until this FAPIIS interim rule became
effective. To implement section 3010, the following steps have been, or
are being taken:
1. Enhanced FAPIIS functionality. The Managers of the FAPIIS
system, in consultation with the Civilian Agency Acquisition Council
and the Defense Acquisition Regulations Council (the Councils), are
making changes to the FAPIIS architecture to support the transparency
requirements of section 3010. The current architecture, consistent with
the rule effective on April 22, 2010, provides a one-stop information
system to help acquisition officials make informed decisions about an
offeror's business integrity, but lacks the functionality to make
information immediately available to the public as it is posted in the
system. On and after April 15, 2011, when system changes are completed,
information posted to FAPIIS by offerors, contractors, and Government
personnel will be publicly available in accordance with section 3010.
2. New FAR clause. The Councils have developed a new FAR clause
52.209-9, Updates of Publicly Available Information Regarding
Responsibility Matters, to replace the current FAR clause 52.209-8,
Updates of Information Regarding Responsibility Matters. The current
clause states that only Government personnel and authorized users
performing business on behalf of the Government will have access to a
contractor's record in the FAPIIS system. The new clause does not
include this statement but instead provides notice to contractors that
all information posted in FAPIIS on or after April 15, 2011, except
past performance reviews, will be publicly available. The new clause
also states that requests to review the information posted in FAPIIS
before April 15, 2011, will be subject to the Freedom of Information
Act (FOIA) process.
The new FAR clause will be implemented in the following manner:
a. New contracts. On or after the effective date of this interim
rule, contracting officers will be required to insert the FAR clause
52.209-9, in accordance with the prescription at FAR 9.104-7(c), in
solicitations issued on or after the date of this rule and resultant
contracts. As explained immediately above in paragraph 2. of this
Background, information posted under the new clause on or after April
15, 2011, except for past performance reviews, will be released to the
public. Information posted before April 15, 2011, will continue to be
handled under FOIA. However, the clause at FAR 52.209-9, Alternate I,
requires this information to be reposted if a six-month update will be
due on or after April 15, 2011. The reposted information will be made
available to the public.
b. Existing contracts. Prior to April 15, 2011, contracting
officers will be required to bilaterally modify existing contracts
(including indefinite-delivery indefinite-quantity contracts) that
contain the FAR clause 52.209-8, if a six-month update will be due on
or after April 15, 2011. The modification shall replace the FAR clause
52.209-8 with the new FAR clause 52.209-9. If the contracting officer
is unable to negotiate this modification prior to April 15, 2011, the
contracting officer will be required to obtain approval at least one
level above the contracting officer to negotiate an alternate
resolution.
3. FAPIIS and CCR Notice. A notice has been posted on the FAPIIS
Web site, available at https://www.cpars.csd.disa.mil/FAPIISmain.htm, as
well as on the Central Contractor Registration at https://www.ccr.gov
through which offerors submit certain information to FAPIIS to alert
offerors, contractors, and Government officials to the requirements of
section 3010 and the actions they need to take in
[[Page 4190]]
implementing this law. For contracting officers, this includes taking
appropriate steps to ensure that they do not post information in the
system on or after April 15, 2011, that would create a harm protected
by a disclosure exemption under FOIA. For example, heightened attention
might need to be given to whether documentation supporting a non-
responsibility determination or termination for default decision should
be redacted before the determination or decision is posted.
The Federal Acquisition Regulatory Council (OFPP, DoD, GSA, and
NASA) are continuing to consider the need for additional regulatory or
other guidance to address the implementation of section 3010 and
welcome public comment on this issue.
Finally, this rule makes several conforming changes and technical
corrections:
FAR 9.104-7 and 12.301--Modifies the clause prescriptions
to prescribe the new clause.
FAR 52.209-7--Relocates the definition of ``Principal'',
in alphabetical order, in paragraph (a) of the clause.
II. Executive Order 12866
This is a significant regulatory action and, therefore, was 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, GSA, and NASA do not expect this interim 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 this rule just notifies the contractors that the public
will have access to the database. The rule does not impose any new
burdens on small entities but just makes editorial changes to 52.209-7
and transfers the information collection requirement of 52.209-8 to new
clause 52.209-9.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. 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 the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-49, FAR Case
2010-016), in correspondence.
IV. Paperwork Reduction Act
The interim rule does not contain any new 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). The
existing burden hours for the information collection requirements that
will now be in 52.209-7 and 52.209-9 were initially approved under OMB
clearance 9000-0174 with regard to FAR Case 2008-027, with a reference
only to 52.209-7, because initially all burdens were included in that
provision. However, in the final rule under FAR Case 2008-027, the
ongoing portion of the reporting to FAPIIS was separated out of the FAR
provision 52.209-7 and incorporated into FAR clause 52.209-8. This
transfer did not change the number of approved hours. In this case, the
burden for 52.209-8 is transferred to 52.209-9, again without any
change to the burden hours initially approved under OMB clearance 9000-
0174.
V. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the rule implements section 3010 of the
Supplemental Appropriations Act, 2010 (Pub. L. 111-212), which was
signed on July 29, 2010, and was effective upon enactment. However,
pursuant to 41 U.S.C. 418b and FAR 1.501-3(b), DoD, GSA, and NASA will
consider public comments received in response to this interim rule in
the formation of the final rule.
List of Subjects in 48 CFR Parts 1, 9, 12, and 52
Government procurement.
Dated: January 19, 2011.
Michael O. Jackson,
Acting Director, Office of Governmentwide Acquisition Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 9, 12, and 52
as set forth below:
0
1. The authority citation for 48 CFR parts 1, 9, 12, and 52 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).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106, in the table following the introductory text,
by adding in numerical sequence, FAR segment ``52.209-7'' and its
corresponding OMB Control Number ``9000-0174'', and FAR segment
``52.209-9'' and its corresponding OMB Control Number ``9000-0174''.
PART 9--CONTRACTOR QUALIFICATIONS
0
3. Amend section 9.104-7 by revising paragraph (c) to read as follows:
9.104-7 Solicitation provisions and contract clauses.
* * * * *
(c)(1) The contracting officer shall insert the clause at 52.209-9,
Updates of Publicly Available Information Regarding Responsibility
Matters--
(i) In solicitations where the resultant contract value is expected
to exceed $500,000; and
(ii) In contracts in which the offeror checked ``has'' in paragraph
(b) of the provision 52.209-7.
(2) For solicitations issued prior to April 15, 2011, and resultant
contracts, use the clause with its Alternate I.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
0
4. Amend section 12.301 by revising paragraph (d)(4) to read as
follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(d) * * *
(4)(i) Insert the clause at 52.209-9, Updates of Publicly Available
Information Regarding Responsibility Matters, as prescribed in 9.104-
7(c).
(ii) Use the clause with its Alternate I as prescribed in 9.104-
7(c)(2).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Amend section 52.209-7 by--
0
a. Revising the date of the provision;
0
b. Adding to paragraph (a), in alphabetical order, the definition
``Principal'';
0
c. Removing from paragraph (d) the word ``enter'' and adding the word
``post'' in its place; and
0
d. Removing the undesignated paragraph that follows paragraph (d).
The revised and added text reads as follows:
[[Page 4191]]
52.209-7 Information Regarding Responsibility Matters.
* * * * *
Information Regarding Responsibility Matters (JAN 2011)
(a) * * *
Principal means an officer, director, owner, partner, or a person
having primary management or supervisory responsibilities within a
business entity (e.g., general manager; plant manager; head of a
division or business segment; and similar positions).
* * * * *
52.209-8 [Removed and reserved]
0
6. Remove and reserve section 52.209-8.
0
7. Add section 52.209-9 to read as follows:
52.209-9 Updates of Publicly Available Information Regarding
Responsibility Matters.
As prescribed at 9.104-7(c), insert the following clause:
Updates of Publicly Available Information Regarding Responsibility
Matters (JAN 2011)
(a) The Contractor shall update the information in the Federal
Awardee Performance and Integrity Information System (FAPIIS) on a
semi-annual basis, throughout the life of the contract, by posting
the required information in the Central Contractor Registration
database at https://www.ccr.gov.
(b)(1) The Contractor will receive notification when the
Government posts new information to the Contractor's record.
(2) The Contractor will have an opportunity to post comments
regarding information that has been posted by the Government. The
comments will be retained as long as the associated information is
retained, i.e., for a total period of 6 years. Contractor comments
will remain a part of the record unless the Contractor revises them.
(3)(i) Public requests for system information posted prior to
April 15, 2011, will be handled under Freedom of Information Act
procedures, including, where appropriate, procedures promulgated
under E.O. 12600.
(ii) As required by section 3010 of Public Law 111-212, all
information posted in FAPIIS on or after April 15, 2011, except past
performance reviews, will be publicly available.
(End of clause)
Alternate I (JAN 2011). As prescribed in 9.104-7(c)(2),
redesignate paragraph (a) of the basic clause as paragraph (a)(1)
and add the following paragraph (a)(2):
(2) At the first semi-annual update on or after April 15, 2011,
the Contractor shall post again any required information that the
Contractor posted prior to April 15, 2011.
[FR Doc. 2011-1323 Filed 1-21-11; 8:45 am]
BILLING CODE 6820-EP-P
