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Do You Have an OMB Control Number for that Past Performance Questionnaire?

Don Mansfield

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In competitive acquisitions, it is common for solicitations to require offerors to conduct surveys of their past and present customers using standard questionnaires developed by the contracting office. Offerors are typically instructed to send the questionnaires to their customers with instructions to send the completed surveys to the contracting office. This information is then used to evaluate the offeror past performance. In effect, individual contracting offices have shifted the burden for collecting information about offeror past performance to the public.

The problem with this practice is that it is done without regard for the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) (PRA). The PRA imposes a requirement on Federal agencies to obtain approval from the Office of Management and Budget (OMB) before collecting information from 10 or more members of the public. 44 U.S.C. § 3502 defines “collection of information” as—

the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for either--

(i) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or

(ii) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes…”

As part of the approval process, 44 U.S.C. § 3506©(2)(A) generally requires that each agency—

“provide 60-day notice in the Federal Register, and otherwise consult with members of the public and affected agencies concerning each proposed collection of information, to solicit comment to--

(i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;

(ii) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;

(iii) enhance the quality, utility, and clarity of the information to be collected; and

(iv) minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology”

OMB approval of a proposed collection of information or recordkeeping requirement is manifested in the issuance of a valid OMB control number. FAR 1.106 contains a list of approved information collections and OMB control numbers relating to Federal acquisition. The list includes, among other things, solicitation provisions requiring offerors to provide certain types of information in their proposals to the Government. For example, the requirement for offerors to provide certified cost or pricing data or data other than certified cost or pricing data is approved under OMB Control Number 9000-0013. The approval granted by OMB is not permanent, which is why the FAR Council will periodically publish their intent to request an extension of an existing OMB clearance in the Federal Register and provide an opportunity for public comment. Denial of OMB approval would render the information collection or recordkeeping requirement unlawful and, arguably, unenforceable if contained in a solicitation provision. To this point, 5 CFR 1320.6 states:

(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to the requirements of this part if:

(1) The collection of information does not display, in accordance with § 1320.3(f) and § 1320.5( B)(1), a currently valid OMB control number assigned by the Director [of OMB] in accordance with the [Paperwork Reduction Act of 1995] Act; or

(2) The agency fails to inform the potential person who is to respond to the collection of information, in accordance with § 1320.5( B)(2), that such person is not required to respond to the collection of information unless it displays a currently valid OMB control number.

In addition to periodically requesting the extension of existing OMB approvals for collections of information, the FAR Council must address compliance with the Paperwork Reduction Act in FAR rules published in the Federal Register. Typically, the Federal Register notice will either state that the rule does not contain any information collection requirements or that any information collection requirements are currently covered by an existing OMB clearance. If the FAR Council is imposing a new information collection requirement, the notice will contain an estimate of the administrative burden and solicit public comments.

One need only look at the nearest competitive solicitation to conclude that contracting offices don’t pay much attention to these requirements. Despite the public protection provision of the PRA, it is unlikely that offerors will exercise their rights for fear of reprisal. As a result, the public will continue to absorb this administrative burden—a burden that is ultimately passed on to the Government in the form of higher overhead costs.



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Great article, just a couple of thoughts:

  1. As noted in the article – “The PRA imposes a requirement on Federal agencies to obtain approval from the Office of Management and Budget before collecting information from 10 or more members of the public.” While it is certainly possible that a solicitation could call for past performance questionnaires from 10 or more references, I would argue that this would be an exception to the norm. More often than not, our solicitations (based completely on personal experience) do not ask for information from this many third-party sources – therefore, it seems that the PRA would be N/A.
  2. The Office of Management and Budget has published policy for the “Best Practices for Collecting and Using Current and Past Performance Information” – see http://www.whitehouse.gov/omb/best_practice_re_past_perf. Interestingly enough this policy document makes no reference to obtaining an OMB Control Number. In fact, the OMB document notes the following under “Section L, Instructions to Offerors”:

“Ask Offerors for a list of references for on-going contracts or contracts completed not more than 3 years ago that demonstrates performance relevant to the solicitation performance requirements. Keep the number of references requested to as few as possible to give an accurate reflection of past performance. We recommend 5 to 10 references as the norm, with more than 15 to be a seldom occurrence.”

What I take from this paragraph is the fact that OMB uses the words “ask” and “requested” when referring to the collection of past performance, which seemingly suggests the PRA not applicable since the Act applies when requiring an offeror to solicit a third party to complete a past performance questionnaire – 44 U.S.C. 3502(3)“the term ‘collection of information’ – (A) means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format…”

  1. The article only lends to the importance of well-documented past performance reports. Having access to detailed reports through PPIRS - rather than the generic ‘performs as required’ statements that we often see, will negate the need to obtain - or have an offeror obtain, past performance information from third parties.

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bently78,

Thank you for commenting.

Using your example, let's say a solicitation required offerors to collect information from 5 references and two offerors submitted proposals with five references each. Wouldn't that be collecting information from 10 members of the public?

Having said that, my post was written from the perspective of the administrative burden placed on offerors to obtain (or cause to be obtained) information on their past performance. (I hadn't considered the administrative burden placed on those completing the questionnaires because those are typically Government employees). If you count up all of the offerors being required to obtain (or cause to be obtained) information about their past performance in response to your agency's solicitations, wouldn't you reach 10?

Regarding the OFPP document, there is actually an approved information collection under OMB Control No. 9000-0142 to "provide offerors an opportunity to identify past or current contracts (including Federal, State, and local government and private) for efforts similar to the Government requirement." The corresponding rule is at FAR 15.305(a)(2)(ii). Given that, maybe the author didn't see the need to advise agencies to comply with the PRA if they were only going to "ask" for the information. In any case, I doubt that document was coordinated with OIRA.

I don't think you are interpreting 44 U.S.C. 3502(3) correctly. You should read it like this--

“the term ‘collection of information’ – (A) means the

1) obtaining,

2) causing to be obtained,

3) soliciting, or

4) requiring the disclosure to third parties or the public,

of facts or opinions by or for an agency, regardless of form or format...

If it's 1, 2, 3, or 4, it's a collection of information.

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Great thought provoking entry.

Does the collection of information requirements imposed by the PRA apply to individual agency procurement actions? I could argue they do not. My rationale is that individual procurement actions resemble adjudication, rather than rulemaking. In other words, contracting officers are performing agency actions that are quasi-judicial functions rather than quasi-legislative functions when conducting acquisitions. The distinction should be made, because (Section 3502(3)(B) the term collection of information shall not include a collection of information described under 3518 ©(1). The exemptions listed here appear to all resemble agency adjudication functions. Specifically, the exemption at 3518 ©(1)(B)(ii) is for an administrative action or investigation involving an agency against specific individuals or entities. In my opinion, the decision to award or not award an individual agency contract action amongst a relatively small group of private entities appears to meet this exemption definition.

Thoughts?

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PhiSig615,

The term "collection of information" is more completely defined at 5 CFR 1320.3( c ). In relevant part--

A “collection of information” may be in any form or format, including the use of report forms; application forms; schedules; questionnaires; surveys; reporting or recordkeeping requirements; contracts; agreements; policy statements; plans; rules or regulations; planning requirements; circulars; directives; instructions; bulletins; requests for proposal or other procurement requirements; interview guides; oral communications; posting, notification, labeling, or similar disclosure requirements; telegraphic or telephonic requests; automated, electronic, mechanical, or other technological collection techniques; standard questionnaires used to monitor compliance with agency requirements; or any other techniques or technological methods used to monitor compliance with agency requirements. A “collection of information” may implicitly or explicitly include related collection of information requirements.

[bold added].

As such, there's no doubt that the PRA applies to conducting acquisitions.

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Don,

Sorry for the late comment. Could it be that the Councils envisioned that offerors, rather than the Government, would provide questionnaires to potential references? Under such a theory, could it be that the Councils believed either (1) the past performance information is already covered under an existing OMB control number; or (2) that such an approach would not qualify as "sponsoring" a collection of information under 5 CFR 1320.3(d)?

Whatever the merits of the arguments, it seems clear to me that the FAR acknowledges the possibility of obtaining past performance data (e.g., FAR 13.106-2( b )(3)(ii)( B ) and obtaining it from sources outside the Federal Government (e.g., FAR 12.206). It also seems to me that a contracting officer should be allowed to take some comfort from FAR 1.106, which states in part, "The information collection and recordkeeping requirements contained in this regulation have been approved by the OMB." In other words, an individual PCO does not need to reinvent the wheel with every solicitation issued.

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