[Federal Register Volume 77, Number 173 (Thursday, September 6, 2012)]
[Proposed Rules]
[Pages 54864-54872]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21973]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 8, 12, 15, 17, 42, and 49
[FAR Case 2012-009; Docket 2012-0009; Sequence 1]
RIN 9000-AM34
Federal Acquisition Regulation; Documenting Contractor
Performance
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to provide Governmentwide standardized
past performance evaluation factors and performance rating categories
and require that past performance information be entered into the
Contractor Performance Assessment Reporting System (CPARS).
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before November 5, 2012 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR Case 2012-009 by any of
the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by searching for
``FAR Case 2012-009''. Select the link ``Send a Comment or Submission''
that corresponds with FAR Case 2012-009. Follow the instructions
provided to complete the ``Public Comment and Submission Form''. Please
include your name, company name (if any), and ``FAR Case 2012-009'' 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 FAR Case 2012-
009 in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement
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 2012-009.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 76 FR 37704 on June 28, 2011, under FAR Case 2009-042, to
implement recommendations from Government Accountability Office (GAO)
Report GAO-09-374, entitled ``Better Performance Information Needed to
[[Page 54865]]
Support Agency Contract Award Decisions,'' and Office of Federal
Procurement Policy (OFPP) memorandum entitled ``Improving the Use of
Contractor Performance Information'' (dated July 29, 2009). Two
amendments to the Federal Register notice were published (76 FR 48776,
dated August 9, 2011, and 76 FR 50714, dated August 16, 2011). The due
date for receipt of public comments was extended twice and was
ultimately set at September 29, 2011. Twentythree respondents submitted
comments on the proposed rule. This proposed rule addresses all
comments received in response to the proposed rule published in the
Federal Register at 76 FR 37704 on June 28, 2011. This proposed rule
also implements paragraphs (a), (b), and (d) of section 806 of the
National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-
81) which requires, at a minimum--
(1) Establishment of standards for the timeliness and completeness
of past performance submissions for purposes of databases;
(2) Assignment of responsibility and management accountability for
the completeness of past performance submissions for such purposes; and
(3) Assurance that past performance submissions are consistent with
award fee evaluations in cases where such evaluations have been
conducted.
The FAR Council is soliciting public comments on a proposal to
remove the appeal language at FAR 42.1503(d) to improve economy and
efficiency. This proposal was included in and consistent with the FAR
Council's Retrospective Plan and Analysis of Existing Rules as required
by Executive Order 13563. The FAR currently requires agencies to
provide for review of agency evaluations at a level above the
contracting officer to consider disagreements between the parties
regarding the evaluation. The Government is considering the merits of
modifying the FAR requirements governing the appeal process to evaluate
if this would improve or weaken the effectiveness of past performance
policies and associated principles of impartiality and accountability.
II. Discussion and Analysis of the Public Comments
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of this proposed rule. A discussion of the comments and the
changes made to the rule as a result of those comments are provided as
follows:
A. Summary of Significant Changes
1. The Councils amended FAR 42.1503 language in this proposed rule
to require the past performance report to include a clear, non-
technical description of the principal purpose of the contract;
2. FAR 42.1503(b)(4) is revised by adding two tables:
Table 42-1--Evaluation Ratings Definitions; and
Table 42-2--Evaluation Ratings Definitions (for the Small
Business Subcontracting Evaluation factor when the clause at 52.219-9
is used).
3. The Evaluation Ratings Definitions included in the Tables are
based upon guidance provided in the Department of Defense CPARS Policy
Guide currently available on the Web site. The U.S. Small Business
Administration provided recommendations to Table 42-2, and the revised
text is included in this proposed rule.
4. Evaluation descriptions are revised under FAR 42.1503(b)(2) to
the following:
Evaluation factors for each assessment shall include, at a minimum,
the following:
(i) Technical (quality of product or service.)
(ii) Cost control (not applicable for firm-fixed-price or fixed-
price with economic price adjustment arrangements).
(iii) Schedule/Timeliness.
(iv) Management or Business Relations.
(v) Small Business Subcontracting (as applicable, see Table 42-2).
(vi) Other (as applicable) (e.g., late or nonpayment to
subcontractors, trafficking violations, tax delinquency, failure to
report in accordance with contract terms and conditions, defective cost
and pricing data, terminations, suspension and debarments, etc.)
5. Architect-Engineer Contract Administration Support System
(ACASS) and Construction Contractor Appraisal Support System (CCASS)
are not changed at this time. There is an effort that will combine all
three systems into one, namely CPARS, and all evaluation rating scales
will be the same at that point. This issue will be resolved when the
systems are merged.
B. Support for the Rule
Comments: Seven respondents expressed support for the rule's
purpose of standardizing the collection and evaluation of past
performance information. One of these respondents deemed the proposed
rule a positive implementation of the Government Accountability Office
(GAO) recommendation.
Response: Noted.
C. OFPP Act Requirements
Comments: Two respondents expressed concern that including the past
performance categories and definitions in the CPARS Guide rather than
in the text of the FAR was effectively a violation of the Office of
Federal Procurement Policy Act (41 U.S.C. 1707 (formerly 41 U.S.C.
418b)) and the FAR 1.501-2 requirement to publish significant revisions
that affect the public for comment. The CPARS Guide has not been
published for public comment at this time. Both respondents recommended
that the proposed FAR rule be revised to include the past performance
ratings definitions in the FAR text and that the revised FAR rule be
published for public comment.
Response: The respondents' concerns have been addressed in FAR
42.1503(b)(4) and by this second proposed rule by adding Table 42-1 and
Table 42-2.
D. Alleged Weaknesses in CPARS System
Comments: Four comments were received alleging weaknesses in the
current CPARS system. One respondent noted the lack of standard,
reliable past performance ratings. Other issues raised concerned the
current high overdue rates Governmentwide for submission of past
performance ratings, the failure of the Government's ``chain of
command'' to ensure timely completion of past performance ratings, and
the need to make the CPARS system even simpler and less time consuming.
Response: The comment on the reliable past performance ratings
definitions is addressed under category C of this rule. The comments on
overdue rates and timely completion reflect issues related to
administration, which can be addressed by the respective contracting
officers. The comments related to the CPARS system have been provided
to the appropriate office for consideration.
E. Public Availability of Information/FAPIIS
Comments: Four comments were submitted. One respondent recommended
that the background section of the final rule explain how the Federal
Awardee Performance and Integrity Information System (FAPIIS) is
affected by the CPARS requirements and what role it will play in the
process. Another respondent recommended increased clarity for FAR
42.1503(d) because it could be read to allow release of past
performance information to third parties once the periods in FAR
[[Page 54866]]
42.1503(g) have expired. A third respondent advocated the wide release
of past performance evaluations, i.e., not requiring the marking of
such information ``Source Selection Information'' and releasing past
performance evaluation information in FAPIIS.
Response: The publication of past performance reviews in the public
version of FAPIIS is currently prohibited by law (section 3010 of Pub.
L. 111-212, enacted July 29, 2010). The relationship between FAPIIS and
CPARS is explained at the FAPIIS Web site as follows:
``FAPIIS is a distinct application that is accessed through the
Past Performance Information System (PPIRS) and is available to
federal acquisition professionals for their use in award and
responsibility determinations. FAPIIS provides users access to
integrity and performance information from the FAPIIS reporting
module in the Contractor Performance Assessment Reporting System
(CPARS), proceedings information from the Central Contractor
Registration (CCR) database, and suspension/disbarment information
from the Excluded Parties List system (EPLS).''
Regarding the release of past performance information, FAR
42.1503(d) reads as follows:
``The completed evaluation shall not be released to other than
Government personnel and the contractor whose performance is being
evaluated during the period the information may be used to provide
source selection information. Disclosure of such information could
cause harm both to the commercial interest of the Government and to
the competitive position of the contractor being evaluated as well
as impede the efficiency of Government operations.''
These sentences, which were not in any way limited by the time
periods in FAR 42.1503(g), were not changed by this proposed rule.
F. Exceptions/Applicability
Comment: One respondent recommended exempting all science and
technology contracts from the requirement to evaluate past performance.
Response: The Councils have determined that it is not in the
Government's best interest to exempt science and technology contracts
from past performance assessments.
Comment: Respondent asked that the final rule clarify (1) whether
past performance evaluations are required for individual task orders
and delivery orders or only for the base indefinite-delivery contract;
and (2) who is the responsible party for completing these evaluations.
Response: The requirement for past performance assessments for
individual task and delivery orders, and the parties responsible, are
addressed in FAR 42.1502(c) and (d) as follows:
(c) Multiple-agency orders. Agencies shall prepare an evaluation
of contractor performance for each order that exceeds the simplified
acquisition threshold placed against a Federal Supply Schedule
contract, or under a task-order contract or a delivery-order
contract awarded by another agency (i.e., Governmentwide acquisition
contract or multi-agency contract). This evaluation shall not
consider the requirements under paragraph (g) of this section.
Agencies are required to prepare an evaluation if a modification to
the order causes the dollar amount to exceed the simplified
acquisition threshold.
(d) Single-Agency orders. For single-agency task-order and
delivery-order contracts, the contracting officer may require
performance evaluations for each order in excess of the simplified
acquisition threshold when such evaluations would produce more
useful past performance for source selection officials than that
contained in the overall contract evaluation (e.g., when the scope
of the basic contract is very broad and the nature of individual
orders could be significantly different). This evaluation need not
consider the requirements under paragraph (g) of this section unless
the contracting officer deems it appropriate.
G. Rating Factors
Comments: One respondent suggested that a sixth rating category,
entitled ``Other,'' be added to the current five categories. Another
respondent recommended that each past performance evaluation should be
required to include an evaluation of the contractor's small business
subcontracting instead of the current requirement to do so only ``when
applicable.''
Response: The Councils agree that adding the evaluation factor
``Other'' at FAR 42.1503(b)(2) allows the Government to consider
contingencies not contemplated by factors (i) through (v) that are
unique to each contract award and are relevant to the contractor's
evaluation. FAR 42.1503(b)(2) is changed to add evaluation factor
``(vi) Other (as applicable) (e.g.; late or nonpayment to
subcontractors, trafficking violations, tax delinquency, failure to
report in accordance with contract terms and conditions, defective cost
and pricing data, terminations, suspension and debarments, etc.)''.
``Small Business Subcontracting'' may be included as a past-performance
factor ``as applicable.'' The Councils did not change this language
because there are instances where ``Small Business Subcontracting'' may
require a past performance assessment.
H. Interim Ratings and Frequency of Ratings
Comments: One respondent recommended revising FAR 42.1502(b) to
require more than one past performance evaluation a year for on-going
contracts. However, another respondent strongly urged a prohibition
against including interim ratings in final past performance
evaluations. The same respondent stated that problems can arise with
performance evaluations when the Government rater for an interim
evaluation is transferred before the contract is completed. This
respondent also noted that it has observed evaluation disparities among
various contracting entities.
Response: FAR 42.1502(a) requires a minimum of one evaluation a
year; however, agencies are not precluded from assessing past
performance on a more frequent basis. The comments regarding interim
evaluations and changes in Government personnel (rater) reflect issues
of administration, and can be discussed with the respective contracting
officer. The comment on observed evaluation disparities among various
contracting entities is noted but this, too, is not a policy issue.
I. Other Comments
Comments: One respondent submitted a draft for a new past
performance evaluation form. The respondent also asked whether
additional items could be added to the CPARS past performance
evaluation for comments from (1) Government quality assurance
personnel, (2) contractor quality control personnel, and (3) the
contracting officer's representative. Another respondent expressed
concern that allowing contractors to ``report to the CPARS system''
would have a negative impact on future competitiveness because all
contractors would give themselves a positive performance rating. A
third respondent stated its concern that the proposed rule was
``essentially a creation of several memorandums and not a direct result
of the traditional rulemaking process.''
Response: CPARS has a pre-established, electronic format for
assessment of past performance; therefore, a new form is not needed at
this time. FAR 42.1503(a) provides agencies the flexibility of
requesting and obtaining input from other Government representatives as
the contracting officer considers necessary. It may not be appropriate
to require past performance input from (1) Government quality assurance
personnel, (2) contractor quality control personnel, and (3) the
[[Page 54867]]
contracting officer's representative in every case. These individuals,
when requested by the Government past performance official, can provide
input under the ``Assessing Official Representative'' field.
Contractors have the opportunity to respond to the Government's past
performance assessment in every case. This material is in addition to,
not in lieu of, the Government's assessment. Therefore, a contractor's
tendency to give itself a positive performance rating in every case
will not have a negative impact on future competitiveness, the concern
expressed by one respondent. The Councils complied with all of the
drafting and approval requirements applicable to every FAR Case.
Comment: One respondent commented on the proposed FAR 42.1503(a)
statement that, if contracting officers' representatives and program
managers are not specifically tasked with preparing interim and final
past performance evaluations, then the contracting officer ``will
remain responsible'' for their preparation. The respondent asked where
past performance duties are assigned in the FAR as the responsibility
of the contracting officer.
Response: The Councils agree that FAR 42.1503 was not sufficiently
clear. FAR 42.1503(a) is changed to reflect that the contracting
officer ``is'' responsible for this function if agency procedures do
not specify a different responsible individual.
Comment: One respondent recommended that the duties of the CPARS
Focal Point, at FAR 42.1503(h)(3), would be more accurate if the
paragraph were revised to read as follows: ``The primary duties of the
CPARS Focal Point include administering CPARS and FAPIIS access,
monitoring CPARS compliance, and providing assistance, guidance, and
training to CPARS and FAPIIS users.''
Response: FAR 42.1503(h)(2) clarifies that only a CPARS Focal Point
has the authority to grant access to the information in the system. FAR
42.1503(h)(3) merely listed some of the Focal Point's key duties. Upon
reflection, the Councils decided that this information is not pertinent
to an acquisition regulation and belongs, rather, in a position
description. FAR 42.1503(h)(3) currently references the disclosure
exemption under the Freedom of Information Act.
Comment: One respondent proposed that FAR 42.1503 should be revised
to include ``ACASS/CCASS'' and requiring that the standardized five
ratings must be used in source selections.
Response: The second proposed rule already requires agencies to use
the standardized five ratings, with certain exceptions that were listed
at FAR 42.1502. These exceptions are retained in the second proposed
rule, e.g., for construction and architect-engineering contracts;
language is added to 42.1502(b) on reporting into ACASS and CCASS.
Comment: A respondent stated that FAR 42.1503(h)(1) was missing the
``vertical list that currently resides at FAR 42.1503(f).''
Response: The vertical list referred to by the respondent was added
to the previous proposed rule by the Federal Register notice
correction, published August 9, 2011, at 76 FR 48776. The respondent
submitted this comment prior to issuance of the correction.
Comment: One respondent asked that the word ``generally,'' at FAR
42.1503(a), be removed because it allows for exceptions to the broad
policy.
Response: The term ``generally'' is in the current FAR and was not
proposed for change in the previous proposed rule. The input of the
technical office, contracting office, and end-users of the products or
services is not always required in every case. Therefore, the requested
change is not made.
Comment: One respondent recommended revising FAR 42.1503(b)(1) to
read as follows:
``The report should include a clear description of the principal
purpose of the contract in plain English, a description of the
contractor's performance based on objective facts supported by
program, project, and contract performance data, and any unusual
circumstances affecting contractor performance, e.g., hazardous
location of performance. Ensure tailoring of each report to the
contract dollar value, visibility, complexity, and value.''
The respondent suggested that the revisions were needed because the
terms ``size'' and ``content'' were unclear.
Response: The Councils agree that the CPARS ratings will be more
useful to those using the system during source selection if the report
were to include a requirement to ``include a clear, non-technical
description of the principal purpose of the contract.'' This language
is added at FAR 42.1503(b)(1) in the second proposed rule.
The balance of the respondent's comment was not adopted because the
language proposed to be included at FAR 42.1503(b)(1) is considered to
be appropriately clear and descriptive.
Comment: At FAR 42.1503(b)(4), the respondent recommended revising
the paragraph as follows in order to increase clarity: ``Each
evaluation factor at paragraph (b)(2) of this section requires
narrative that clearly supports the rating assigned using the rating
definitions in the CPARS Policy Guide, http://www.cpars.gov/.''
Response: Given that the CPARS rating categories and definitions
are proposed to be added in this same paragraph by this proposed rule
(see section II.C. above), the respondent's intent has been addressed.
Comment: At FAR 42.1503(f), the respondent recommended that
additional clarity could be achieved by changing the wording to read:
``Agencies shall prepare all past performance reports electronically in
CPARS at http://www.cpars.gov/. All completed reports in CPARS transmit
to the Past Performance Information Retrieval System (PPIRS) at http://www.ppirs.gov for viewing by Government source selection officials.''
Response: Most of the material in the respondent's recommendation
is now in this proposed rule; the part of the recommendation that is
new is the addition of the phrase ``for viewing by Government source
selection officials''. However, this is not adopted because, while
access to the information in CPARS is limited, it is not limited in
every case only to source selection officials.
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 not a significant regulatory action and, therefore, was not
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 this rule codifies in the FAR existing guidelines and
practices. The evaluation factors and rating system language proposed
are currently used by Federal
[[Page 54868]]
agencies. There are no new requirements placed on small entities.
Therefore, an initial regulatory flexibility analysis was not
performed, and no comments on the expected impact of this rule on small
entities were received in response to the request for comments in the
Federal Register notice for the prior proposed rule. 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 (FAR Case 2012-009),
in correspondence.
V. Paperwork Reduction Act
The rule does not contain any 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). No public comments
were received on the information collection requirements in response to
the request in the proposed rule.
List of Subjects in 48 CFR parts 8, 12, 15, 17, 42, and 49
Government procurement.
Dated: August 31, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 8, 12,
15, 17, 42, and 49 as set forth below:
1. The authority citation for 48 CFR parts 8, 12, 15, 17, 42, and
49 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.
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
8.406-4 [Amended]
2. Amend section 8.406-4 by removing from paragraph (e)
``42.1503(f)'' and adding ``42.1503(h)'' in its place.
3. Revise section 8.406-7 to read as follows:
8.406-7 Contractor Performance Evaluation.
Ordering activities must prepare at least annually and at the time
the work under the order is completed, an evaluation of contractor
performance for each order that exceeds the simplified acquisition
threshold in accordance with 42.1502(c).
PART 12--ACQUISITION OF COMMERCIAL ITEMS
12.403 [Amended]
4. Amend section 12.403 by removing from paragraph (c)(4)
``42.1503(f)'' and adding ``42.1503(h)'' in its place.
PART 15--CONTRACTING BY NEGOTIATION
15.407-1 [Amended]
5. Amend section 15.407-1 by removing from paragraph (d)
``42.1503(f)'' and adding ``42.1503(h)'' in its place.
PART 17--SPECIAL CONTRACTING METHODS
6. Amend section 17.207 by adding paragraph (c)(6) to read as
follows:
17.207 Exercise of options.
* * * * *
(c) * * *
(6) The contractor's past performance evaluations have been
reviewed and the contractor's performance rated.
* * * * *
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
7. Revise sections 42.1500 and 42.1501 to read as follows:
42.1500 Scope of subpart.
This subpart provides policies and establishes responsibilities for
recording and maintaining contractor performance information. This
subpart does not apply to procedures used by agencies in determining
fees under award or incentive fee contracts. See subpart 16.4. However,
the fee amount paid to contractors should be reflective of the
contractor's performance and the past performance evaluation should
closely parallel and be consistent with the fee determinations.
42.1501 General.
(a) Past performance information (including the ratings and
supporting narratives) is relevant information, for future source
selection purposes, regarding a contractor's actions under previously
awarded contracts. It includes, for example, the contractor's record
of--
(1) Conforming to contract requirements and to standards of good
workmanship;
(2) Forecasting and controlling costs;
(3) Adherence to contract schedules, including the administrative
aspects of performance;
(4) Reasonable and cooperative behavior and commitment to customer
satisfaction;
(5) Reporting into databases (see subparts 4.14 and 4.15, and
reporting requirements in the solicitation provisions and clauses
referenced in 9.104-7);
(6) Integrity and business ethics; and
(7) Business-like concern for the interest of the customer.
(b) Agencies shall monitor their compliance with the past
performance evaluation requirements (see 42.1502), and use the CPARS
and PPIRS metric tools to measure the quality and timely reporting of
past performance information.
8. Amend section 42.1502 by revising paragraphs (a) through (d) and
(i) to read as follows:
42.1502 Policy.
(a) General. Past performance evaluations shall be prepared at
least annually and at the time the work under the contract or order is
completed. Past performance evaluations are required for contracts and
orders for supplies, services, and research and development, including
contracts and orders performed inside and outside the United States,
with the exception of architect-engineer and construction contracts or
orders, which will still be reported into ACAAS and CCASS databases.
Past performance information shall be entered into the Contractor
Performance Assessment Reporting System (CPARS), the Governmentwide
evaluation reporting tool for all past performance reports.
Instructions for submitting evaluations into CPARS are available at
http://www.cpars.gov/.
(b) Contracts. Except as provided in paragraphs (e), (f) and (h) of
this section, agencies shall prepare evaluations of contractor
performance for each contract or order that exceeds the simplified
acquisition threshold. Agencies are required to prepare an evaluation
if a modification to the contract causes the dollar amount to exceed
the simplified acquisition threshold.
(c) Multiple-agency orders. Agencies shall prepare an evaluation of
contractor performance for each order that exceeds the simplified
acquisition threshold placed against a Federal Supply Schedule
contract, or under a task-order contract or a delivery-order contract
awarded by another agency (i.e., Governmentwide acquisition contract or
multi-agency contract). This evaluation shall not consider the
requirements under paragraph (g) of this section. Agencies are required
to prepare an evaluation if a modification to the order
[[Page 54869]]
causes the dollar amount to exceed the simplified acquisition
threshold.
(d) Single-Agency orders. For single-agency task-order and
delivery-order contracts, the contracting officer may require
performance evaluations for each order in excess of the simplified
acquisition threshold when such evaluations would produce more useful
past performance for source selection officials than that contained in
the overall contract evaluation (e.g., when the scope of the basic
contract is very broad and the nature of individual orders could be
significantly different). This evaluation need not consider the
requirements under paragraph (g) of this section unless the contracting
officer deems it appropriate.
* * * * *
(i) Agencies shall promptly report other contractor information in
accordance with 42.1503(h).
9. Revise section 42.1503 to read as follows:
42.1503 Procedures.
(a) Agency procedures for the past performance evaluation system
shall--
(1) Generally provide for input to the evaluations from the
technical office, contracting office and, where appropriate, end users
of the product or service;
(2) Identify and assign past performance evaluation roles and
responsibilities to those individuals responsible for preparing and
reviewing interim evaluation, if prepared, and final evaluations (e.g.,
contracting officers, contracting officer representatives and program
managers); and
(3) Address management controls and appropriate management reviews
of past performance evaluations, to include accountability, for
documenting past performance on PPIRS. If agency procedures do not
specify the individuals responsible for past performance evaluation
duties, the contracting officer is responsible for this function. Those
individuals identified may obtain information for the evaluation of
performance from the program office, administrative contracting office,
audit office, end users of the product or service, and any other
technical or business advisor, as appropriate.
(b)(1) The evaluation should include a clear, non-technical
description of the principal purpose of the contract. The evaluation
should reflect how the contractor performed. The evaluation should
include clear relevant information that accurately depicts the
contractor's performance, and be based on objective facts supported by
program and contract performance data. The evaluations should be
tailored to the contract type, size, content, and complexity of the
contractual requirements.
(2) Evaluation factors for each assessment shall include, at a
minimum, the following:
(i) Technical (quality of product or service.)
(ii) Cost control (not applicable for firm-fixed-price or fixed-
price with economic price adjustment arrangements).
(iii) Schedule/Timeliness.
(iv) Management or Business Relations.
(v) Small Business Subcontracting (as applicable see Table 42-2).
(vi) Other (as applicable) (e.g., late or nonpayment to
subcontractors, trafficking violations, tax delinquency, failure to
report in accordance with contract terms and conditions, defective cost
and pricing data, terminations, suspension and debarments, etc.)
(3) Evaluation factors may include subfactors. Each factor and
subfactor used shall be evaluated and a supporting narrative provided.
(4) Each evaluation factor, as listed in paragraph (b)(2) of this
section, shall be rated in accordance with a five scale rating system
(e.g., exceptional, very good, satisfactory, marginal, and
unsatisfactory). Rating definitions shall reflect those in the tables
below:
Table 42-1--Evaluation Ratings Definitions
------------------------------------------------------------------------
Rating Definition Note
------------------------------------------------------------------------
Exceptional................... Performance meets To justify an
contractual Exceptional
requirements and rating, identify
exceeds many to multiple
the Government's significant events
benefit. The and state how they
contractual were of benefit to
performance of the the Government. A
element or sub- singular benefit,
element being however, could be
evaluated was of such magnitude
accomplished with that it alone
few minor problems constitutes an
for which Exceptional
corrective actions rating. Also,
taken by the there should have
contractor was been NO
highly effective. significant
weaknesses
identified.
Very Good..................... Performance meets To justify a Very
contractual Good rating,
requirements and identify a
exceeds some to significant event
the Government's and state how it
benefit. The was a benefit to
contractual the Government.
performance of the There should have
element or sub- been no
element being significant
evaluated was weaknesses
accomplished with identified.
some minor
problems for which
corrective actions
taken by the
contractor was
effective.
Satisfactory.................. Performance meets To justify a
contractual Satisfactory
requirements. The rating, there
contractual should have been
performance of the only minor
element or sub- problems, or major
element contains problems the
some minor contractor
problems for which recovered from
corrective actions without impact to
taken by the the contract/
contractor appear order. There
or were should have been
satisfactory. NO significant
weaknesses
identified. A
fundamental
principle of
assigning ratings
is that
contractors will
not be evaluated
with a rating
lower than
Satisfactory
solely for not
performing beyond
the requirements
of the contract/
order.
Marginal...................... Performance does To justify Marginal
not meet some performance,
contractual identify a
requirements. The significant event
contractual in each category
performance of the that the
element or sub- contractor had
element being trouble overcoming
evaluated reflects and state how it
a serious problem impacted the
for which the Government. A
contractor has not Marginal rating
yet identified should be
corrective supported by
actions. The referencing the
contractor's management tool
proposed actions that notified the
appear only contractor of the
marginally contractual
effective or were deficiency (e.g.,
not fully management,
implemented. quality, safety,
or environmental
deficiency report
or letter).
[[Page 54870]]
Unsatisfactory................ Performance does To justify an
not meet most Unsatisfactory
contractual rating, identify
requirements and multiple
recovery is not significant events
likely in a timely in each category
manner. The that the
contractual contractor had
performance of the trouble overcoming
element or sub- and state how it
element contains a impacted the
serious problem(s) Government. A
for which the singular problem,
contractor's however, could be
corrective actions of such serious
appear or were magnitude that it
ineffective. alone constitutes
an unsatisfactory
rating. An
Unsatisfactory
rating should be
supported by
referencing the
management tools
used to notify the
contractor of the
contractual
deficiencies
(e.g., management,
quality, safety,
or environmental
deficiency
reports, or
letters).
------------------------------------------------------------------------
Note 1: Plus or minus signs may be used to indicate an improving (+) or
worsening (-) trend insufficient to change the evaluation status.
Note 2: N/A (not applicable) should be used if the ratings are not going
to be applied to a particular area for evaluation.
Table 42-2--Evaluation Ratings Definitions
[For the Small Business Subcontracting Evaluation Factor, when 52.219-9
is used]
------------------------------------------------------------------------
Rating Definition Note
------------------------------------------------------------------------
Exceptional................... Exceeded all To justify an
statutory goals or Exceptional
goals as rating, identify
negotiated. Had multiple
exceptional significant events
success with and state how they
initiatives to were a benefit to
assist, promote, small business
and utilize small utilization. A
business (SB), singular benefit,
small however, could be
disadvantaged of such magnitude
business (SDB), that it
women-owned small constitutes an
business (WOSB), Exceptional
HUBZone small rating. Small
business, veteran- businesses should
owned small be given
business (VOSB) meaningful and
and service innovative work
disabled veteran directly related
owned small to the contract,
business (SDVOSB). and opportunities
Complied with FAR should not be
52.219-8, limited to
Utilization of indirect work such
Small Business as cleaning
Concerns. Exceeded offices, supplies,
any other small landscaping, etc.
business Also, there should
participation have been no
requirements significant
incorporated in weaknesses
the contract/ identified.
order, including
the use of small
businesses in
mission critical
aspects of the
program. Went
above and beyond
the required
elements of the
subcontracting
plan and other
small business
requirements of
the contract/
order. Completed
and submitted
Individual
Subcontract
Reports and/or
Summary
Subcontract
Reports in an
accurate and
timely manner.
Very Good..................... Met all of the To justify a Very
statutory goals or Good rating,
goals as identify a
negotiated. Had significant event
significant and state how they
success with were a benefit to
initiatives to small business
assist, promote utilization. Small
and utilize SB, businesses should
SDB, WOSB, be given
HUBZone, VOSB, and meaningful and
SDVOSB. Complied innovative
with FAR 52.219-8, opportunities to
Utilization of participate as
Small Business subcontractors for
Concerns. Met or work directly
exceeded any other related to the
small business contract, and
participation opportunities
requirements should not be
incorporated in limited to
the contract/ indirect work such
order, including as cleaning
the use of small offices, supplies,
businesses in landscaping, etc.
mission critical There should be no
aspects of the significant
program. weaknesses
Endeavored to go identified.
above and beyond
the required
elements of the
subcontracting
plan. Completed
and submitted
Individual
Subcontract
Reports and/or
Summary
Subcontract
Reports in an
accurate and
timely manner.
Satisfactory.................. Demonstrated a good To justify a
faith effort to Satisfactory
meet all of the rating, there
negotiated should have been
subcontracting only minor
goals in the problems, or major
various socio- problems the
economic contractor has
categories for the addressed or taken
current period. corrective action.
Complied with FAR There should have
52.219-8, been no
Utilization of significant
Small Business weaknesses
Concerns. Met any identified. A
other small fundamental
business principle of
participation assigning ratings
requirements is that
included in the contractors will
contract/order. not be assessed a
Fulfilled the rating lower than
requirements of Satisfactory
the subcontracting solely for not
plan included in performing beyond
the contract/ the requirements
order. Completed of the contract/
and submitted order.
Individual
Subcontract
Reports and/or
Summary
Subcontract
Reports in an
accurate and
timely manner.
Marginal...................... Deficient in To justify Marginal
meeting key performance,
subcontracting identify a
plan elements. significant event
Deficient in that the
complying with FAR contractor had
52.219-8, trouble overcoming
Utilization of and how it
Small Business impacted small
Concerns, and any business
other small utilization. A
business Marginal rating
participation should be
requirements in supported by
the contract/ referencing the
order. Did not actions taken by
submit Individual the government
Subcontract that notified the
Reports and/or contractor of the
Summary contractual
Subcontract deficiency.
Reports in an
accurate or timely
manner. Failed to
satisfy one or
more requirements
of a corrective
action plan
currently in
place; however,
does show an
interest in
bringing
performance to a
satisfactory level
and has
demonstrated a
commitment to
apply the
necessary
resources to do
so. Required a
corrective action
plan.
[[Page 54871]]
Unsatisfactory................ Noncompliant with To justify an
FAR 52.219-8 and Unsatisfactory
52.219-9, and any rating, identify
other small multiple
business significant events
participation that the
requirements in contractor had
the contract/ trouble overcoming
order. Did not and state how it
submit Individual impacted small
Subcontract business
Reports and/or utilization. A
Summary singular problem,
Subcontract however, could be
Reports in an of such serious
accurate or timely magnitude that it
manner. Showed alone constitutes
little interest in an Unsatisfactory
bringing rating. An
performance to a Unsatisfactory
satisfactory level rating should be
or is generally supported by
uncooperative. referencing the
Required a actions taken by
corrective action the government to
plan. notify the
contractor of the
deficiencies. When
an Unsatisfactory
rating is
justified, the
contracting
officer must
consider whether
the contractor
made a good faith
effort to comply
with the
requirements of
the subcontracting
plan required by
FAR 52.219-9 and
follow the
procedures
outlined in FAR
52.219-16,
Liquidated Damages-
Subcontracting
Plan.
------------------------------------------------------------------------
Note 1: Plus or minus signs may be used to indicate an improving (+) or
worsening (-) trend insufficient to change evaluation status.
Note 2: For subcontracting plans under the DoD Comprehensive Small
Business Subcontracting Plan (Test Program), DFARS 252.219-7004
(deviation), the ratings entered in CPARS shall mirror those assigned
by the Defense Contract Management Agency who is responsible for
monitoring such plans.
Note 3: Generally, zero percent is not a goal unless the Contracting
Officer determined when negotiating the subcontracting plan that no
subcontracting opportunities exist in a particular socio-economic
category. In such cases, the contractor shall be considered to have
met the goal for any socio-economic category where the goal negotiated
in the plan was zero.
(c)(1) When the contract provides for incentive fees, the
incentive-fee contract performance evaluation shall be entered into
CPARS.
(2) When the contract provides for award fee, the award fee-
contract performance adjectival rating as described in 16.401(e)(3)
shall be entered into CPARS.
(d) Agency evaluations of contractor performance, including both
negative and positive evaluations, prepared under this subpart shall be
provided to the contractor as soon as practicable after completion of
the evaluation. Contractor will receive a CPARS-system generated
notification when an evaluation is ready for comment. Contractors shall
be given a minimum of 30 days to submit comments, rebutting statements,
or additional information. Agencies shall provide for review at a level
above the contracting officer to consider disagreements between the
parties regarding the evaluation. The ultimate conclusion on the
performance evaluation is a decision of the contracting agency. Copies
of the evaluation, contractor response, and review comments, if any,
shall be retained as part of the evaluation. These evaluations may be
used to support future award decisions, and should therefore be marked
``Source Selection Information.'' Evaluation of Federal Prison
Industries (FPI) performance may be used to support a waiver request
(see 8.604) when FPI is a mandatory source in accordance with subpart
8.6. The completed evaluation shall not be released to other than
Government personnel and the contractor whose performance is being
evaluated during the period the information may be used to provide
source selection information. Disclosure of such information could
cause harm both to the commercial interest of the Government and to the
competitive position of the contractor being evaluated as well as
impede the efficiency of Government operations. Evaluations used in
determining award or incentive fee payments may also be used to satisfy
the requirements of this subpart. A copy of the annual or final past
performance evaluation shall be provided to the contractor as soon as
it is finalized.
(e) Agencies shall require frequent evaluation (e.g., quarterly) of
agency compliance with the reporting requirements in 42.1502, so
agencies can readily identify delinquent past performance reports and
monitor their reports for quality control.
(f) Agencies shall prepare and submit all past performance
evaluations electronically in the CPARS at http://www.cpars.gov/. These
evaluations are automatically transmitted to the Past Performance
Information Retrieval System (PPIRS) at http://www.ppirs.gov. 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).
(g) Agencies shall use the past performance information in PPIRS
that is within three years (six for construction and architect-engineer
contracts) and information contained in the Federal Awardee Performance
and Integrity Information System (FAPIIS), e.g., terminations for
default or cause.
(h) Other contractor performance information. (1) Agencies shall
ensure information is accurately reported in the FAPIIS module of CPARS
within 3 calendar days after a contracting officer--
(i) Issues a final determination that a contractor has submitted
defective cost or pricing data;
(ii) Makes a subsequent change to the final determination
concerning defective cost or pricing data pursuant to 15.407-1(d);
(iii) Issues a final termination for cause or default notice; or
(iv) Makes a subsequent withdrawal or a conversion of a termination
for default to a termination for convenience.
(2) Agencies shall establish CPARS Focal Points who will register
users to report data into the FAPIIS module of CPARS (available at
http://www.cpars.gov/, then select FAPIIS).
(3) With regard to information that may be covered by a disclosure
exemption under the Freedom of Information Act, the contracting officer
shall follow the procedures at 9.105-2(b)(2)(iv).
[[Page 54872]]
PART 49--TERMINATION OF CONTRACTS
49.402-8 [Amended]
10. Amend section 49.402-8 by removing ``42.1503(f)'' and adding
``42.1503(h)'' in its place.
[FR Doc. 2012-21973 Filed 9-5-12; 8:45 am]
BILLING CODE 6820-EP-P