Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 21851 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 236 

RIN 0750–AG91 

Defense Federal Acquisition 

Regulation Supplement; Construction 

and Architect-Engineer Services 

Performance Evaluation (DFARS Case 

2010–D024) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

remove the requirement to use DoDunique forms to prepare contractor 

performance evaluations for 

construction and architect-engineer 

services. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before June 

20, 2011, to be considered in the 

formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2010–D024, 

using any of the following methods: 

Regulations.gov, http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘DFARS Case 2010–D024’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2010– 

D024.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2010– 

D024’’ on your attached document. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2010–D024 in the subject 

line of the message. 

FAX: 703–602–0350. 

Mail: Defense Acquisition Regulations 

System, Attn: Mr. Manuel Quinones, 

OUSD (AT&L) DPAP (DARS), Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

regulations.gov, including any personal 

information provided. To confirm 

receipt of your comment, please check 

http://www.regulations.gov 

approximately two to three days after 

submission to verify posting, except 

allow 30 days for posting of comments 

submitted by mail. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Manuel Quinones, telephone 703–602– 

8383. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This case removes the requirement to 

use DoD-unique forms to document 

contractor past performance for 

construction and Architect-Engineer 

(A&E) services. Historically, the Federal 

Government collected past performance 

data for construction and A&E services 

on specific standard forms (SF 1420 and 

SF 1421, respectively). DoD collected 

the data on DD Form 2626, Performance 

Evaluation (Construction), and DD Form 

2631, Performance Evaluation 

(Architect-Engineer), in lieu of the 

standard forms. The Federal Acquisition 

Regulation (FAR) has been updated to 

remove the standard forms in their 

entirety, as well as the procedures that 

accompanied them, and now points 

solely to the requirements of FAR 

subpart 42.15 for past-performance 

reporting for construction and A&E 

contracts. 

Earlier in 2010, consistent with the 

Office of Federal Procurement Policy 

memorandum dated July 29, 2008, 

Improving the Use of Contractor 

Performance Information, the Contractor 

Performance Assessment Reporting 

System (CPARS) was named as the sole 

system for collecting past-performance 

information. As such, CPARS will 

support Governmentwide data 

collection requirements for contractor 

past performance reporting, to include 

construction and A&E contracts, and 

DFARS is being updated to delete the 

outdated procedures and references to 

the obsolete DD forms. 

II. Executive Order 12866 and 

Executive Order 13563 

Executive Orders 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). Executive Order 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 Executive Order 

12866, Regulatory Planning and Review, 

dated September 30, 1993. This rule is 

not a major rule under 5 U.S.C. 804. 

III. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

This proposed rule addresses the 

removal of the procedures for use of and 

references to DD Forms 2626 and 2631 

from DFARS. DFARS part 236 

supplemented the language previously 

included in the Federal Acquisition 

Regulation (FAR) that specified certain 

procedures and forms be used to 

document contractor performance for 

construction and A&E services. The 

FAR has been updated to remove those 

procedures and standard forms; FAR 

36.201 and FAR 36.604 now refer to 

FAR 42.1502(e) for the requirements for 

preparing past performance evaluations. 

The objective of this rule is to remove 

the requirement to use DD Forms 2626, 

Performance Evaluation (Construction), 

and 2631, Performance Evaluation 

(Architect-Engineer), to evaluate 

contractor past performance. Since the 

Contractor Performance Assessment 

Report System (CPARS) is now the 

Governmentwide system for 

electronically collecting past 

performance data, there is no need to 

specify separate DoD-unique forms to 

collect the data. 

The number of small entities to be 

impacted by this proposed rule is 

unknown, however, due to the low 

dollar thresholds currently in place for 

reporting, it is expected that a large 

number of small entities will require 

past performance evaluations to be 

completed by Government personnel. 

Past performance evaluations are 

required for each construction contract 

of $650,000 or more and for each 

construction contract terminated for 

default regardless of contract value. For 

Architect and Engineer (A&E) services, 

past performance evaluations are 

required for contracts of $30,000 or 

more, and for each A&E contract that is 

terminated for default regardless of 

contract value. 

The rule will not 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 the 

clarifications proposed require no 

additional effort by contractors as the 

changes simply update the DFARS to 

reflect the current automated process 

being used. CPARS is already being 

used by DoD personnel to report 

construction and A&E services 

contractor past performance, and the 

DFARS is merely being updated to 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1
21852 Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 

remove references to obsolete forms and 

procedures and reflect the current 

process. No start-up costs are expected 

as only Internet access is required 

should small entities elect to comment 

on their past performance rating in 

CPARS. This rule will not duplicate, 

overlap, or conflict with any other 

known Federal rule. There are no 

known alternatives to this proposed 

rule. 

DoD invites comments from small 

businesses and other interested parties 

on the expected impact of this rule on 

small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2010–D024), in 

correspondence. 

IV. Paperwork Reduction Act 

The proposed rule does not impose 

additional 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.). 

List of Subjects in 48 CFR Part 236 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 236 is 

proposed to be amended as follows: 

1. The authority citation for 48 CFR 

part 236 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 236—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

236.201 [Removed] 

2. Section 236.201 is removed. 

3. Revise section 236.604 to read as 

follows: 

236.604 Performance evaluation. 

Prepare a separate performance 

evaluation after actual construction of 

the project. Ordinarily, the evaluating 

official should be the person most 

familiar with the A–E’s performance. 

[FR Doc. 2011–8962 Filed 4–18–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 245 

Defense Federal Acquisition 

Regulation Supplement; Responsibility 

and Liability for Government Property 

(DFARS Case 2010–D018) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is issuing a proposed 

rule to amend the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to extend the Government selfinsurance policy to Government 

property provided under negotiated 

fixed-price contracts that are awarded 

on a basis other than submission of 

certified cost or pricing data. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before June 

20, 2011, to be considered in the 

formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2010–D018, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting 

‘‘DFARS Case 2010–D018’’ under the 

heading ‘‘Enter keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘DFARS Case 2010–D018.’’ Follow 

the instructions provided at the ‘‘Submit 

a Comment’’ screen. Please include your 

name, company name (if any), and 

‘‘DFARS Case 2010–D018’’ on your 

attached document. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2010–D018 in the subject 

line of the message. 

Æ FAX: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Mrs. Jennifer 

Abi-Najm, OUSD (AT&L) DPAP (DARS), 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

regulations.gov, including any personal 

information provided. To confirm 

receipt of your comment, please check 

http://www.regulations.gov 

approximately two to three days after 

submission to verify posting, except 

allow 30 days for posting of comments 

submitted by mail. 

FOR FURTHER INFORMATION CONTACT: Mrs. 

Jennifer Abi-Najm, 703–602–1013. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This proposed rule will amend the 

DFARS to extend the Federal 

Acquisition Regulation (FAR) 

Government self-insurance policy for 

loss of Government property to 

negotiated fixed-price contracts 

awarded on a basis other than 

submission of certified cost or pricing 

data. FAR 45.104, Responsibility and 

liability for Government property, 

provides that contractors are not held 

liable for loss of Government property 

occurring under the following types of 

contracts: 

(1) Cost-reimbursement contracts. 

(2) Time-and-materials contracts. 

(3) Labor-hour contracts. 

(4) Fixed-price contracts awarded on 

the basis of submission of certified cost 

or pricing data. 

An exception to the FAR 45.104 

policy for Government assumption of 

risk of loss is for negotiated fixed-price 

contracts awarded on a basis other than 

submission of certified cost or pricing 

data. This rule proposes that DoD 

contractors not be held liable for loss of 

Government property under such 

contracts, and eliminates the use of 

Alternate I of the FAR clause at 52.245– 

1, Government Property. Use of 

Alternate I requires contractors to 

assume the risk and be responsible for 

loss of Government property. 

II. Executive Order 12866 and 

Executive Order 13563 

Executive Orders 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). Executive Order 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 Executive Order 

12866, Regulatory Planning and Review, 

dated September 30, 1993. This rule is 

not a major rule under 5 U.S.C. 804. 

III. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 

5 U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 


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