Federal Acquisition Regulation; Contractor Comment Period, Past Performance Evaluations, 48123-48125 [2013-18955]
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Federal Register / Vol. 78, No. 152 / Wednesday, August 7, 2013 / Proposed Rules
After IEPA compiled the June 2006
document, IEPA revised the 2002 onroad mobile source emissions using
EPA’s MOVES mobile source emissions
model. The derivation of the 2008 onroad mobile source emissions using
MOVES is documented in the August
17, 2011, draft of IEPA’s maintenance
plan for the Chicago area. In this same
document, IEPA indicates that the 2002
base year on-road mobile source
emissions were recalculated using the
same techniques. The 2002 emissions
(including the MOVES-based on-road
mobile source emissions) for the
Chicago area are summarized in tables
3, 4, and 5 above.
We find that the state has thoroughly
documented the 2002 emissions for
primary PM2.5 and PM2.5 precursors in
the Chicago area. We also find that
Illinois has used acceptable techniques
and supporting information to derive
these emissions. Therefore, we are
proposing to approve Illinois’ 2002 base
year emissions inventory for the
Chicago area for purposes of meeting the
emission inventory requirements of
section 172(c)(3) of the CAA.
pmangrum on DSK3VPTVN1PROD with PROPOSALS-1
VI. Statutory and Executive Order
Reviews
Under the CAA, redesignation of an
area to attainment and the
accompanying approval of a
maintenance plan under section
107(d)(3)(E) are actions that affect the
status of a geographical area and do not
impose any additional regulatory
requirements on sources beyond those
imposed by state law. A redesignation to
attainment does not in and of itself
create any new requirements, but rather
results in the applicability of
requirements contained in the CAA for
areas that have been redesignated to
attainment. Moreover, the Administrator
is required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, these actions
merely propose to approve state law as
meeting Federal requirements and do
not impose additional requirements
beyond those imposed by state law and
the CAA. For that reason, these
proposed actions:
• Are not ‘‘significant regulatory
actions’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Do not impose an information
collection burden under the provisions
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15:31 Aug 06, 2013
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of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Do not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not economically significant
regulatory actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory
actions subject to Executive Order
13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Do not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule does not
have tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because a
determination of attainment is an action
that affects the status of a geographical
area and does not impose any new
regulatory requirements on tribes,
impact any existing sources of air
pollution on tribal lands, nor impair the
maintenance of ozone national ambient
air quality standards in tribal lands.
List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter.
40 CFR Part 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Dated: July 22, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013–18948 Filed 8–6–13; 8:45 am]
BILLING CODE 6560–50–P
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48123
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
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
AGENCY:
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: https://
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 https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Mr.
Curtis E. Glover, Sr., Procurement
SUMMARY:
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48124
Federal Register / Vol. 78, No. 152 / Wednesday, August 7, 2013 / Proposed Rules
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:
pmangrum on DSK3VPTVN1PROD with PROPOSALS-1
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
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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
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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
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pmangrum on DSK3VPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 78, No. 152 / Wednesday, August 7, 2013 / Proposed Rules
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
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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.
48125
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 https://
www.cpars.gov. These evaluations,
including any contractor-submitted
information (with indication whether
agency review is pending), are
automatically transmitted to PPIRS at
https://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
DEPARTMENT OF TRANSPORTATION
List of Subject in 48 CFR Part 42
Government procurement.
Federal Motor Carrier Safety
Administration
Dated: July 31, 2013.
William Clark,
Acting Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
49 CFR Parts 392 and 396
Therefore, DoD, GSA, and NASA
propose amending 48 CFR part 42 as set
forth below:
PART 42—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
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.
PO 00000
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[Docket No. FMCSA–2012–0336]
RIN 2126–AB46
Inspection, Repair, and Maintenance;
Driver-Vehicle Inspection Report
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
FMCSA proposes to rescind
the requirement that commercial motor
vehicle (CMV) drivers operating in
interstate commerce, except drivers of
passenger-carrying CMVs, submit, and
SUMMARY:
E:\FR\FM\07AUP1.SGM
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]]>Agencies
[Federal Register Volume 78, Number 152 (Wednesday, August 7, 2013)]
[Proposed Rules]
[Pages 48123-48125]
From the Federal Register Online via the Government Printing 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: https://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 https://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 https://www.cpars.gov. These
evaluations, including any contractor-submitted information (with
indication whether agency review is pending), are automatically
transmitted to PPIRS at https://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
