Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Defense

###### General Services Administration

###### National Aeronautics and Space Administration

          - 48 CFR Parts 8, 12, 15, 42, and 49
          - [FAR Case 2008-016; Docket 2009-0032, Sequence 1]
          - RIN 9000-AL45

# AGENCIES:

                        Department of Defense (DoD), General Services Administration (GSA),                               ( print page 45395)                            and National Aeronautics and Space Administration (NASA).                    

# ACTION:

Proposed rule.

# SUMMARY:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to establish procedures for contracting officers to provide contractor information into the Past Performance Information System (PPIRS). This case sets forth requirements for reporting defective cost or pricing data and terminations for cause or default. Evaluation of past performance information, especially terminations, manages risks associated with timely, effective and cost efficient completion of contracts, a key objective of the President's March 4, 2009, Memorandum on Government Contracting.

# DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before November 2, 2009 to be considered in the formulation of a final rule.

# ADDRESSES:

Submit comments identified by FAR case 2008-016 by any of the following methods:
      - Regulations.gov: http://www.regulations.gov .                    

Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2008-016” into the field “Keyword”. Select the link that corresponds with FAR Case 2008-016. Follow the instructions provided to submit your comment. Please include your name, company name (if any), and “FAR Case 2008-016” on your attached document.
      - Fax: 202-501-4067.
      - Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, DC 20405.

*Instructions*: Please submit comments only and cite FAR case 2008-016 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:

Ms. Beverly Cromer, 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 2008-016.

# SUPPLEMENTARY INFORMATION:

## A. Background

                    This proposed case is subsequent to and supplements FAR Case 2006-022, Contractor Performance Information, that was published in the                     **Federal Register**                     as a final rule on July 1, 2009 (74 FR 31557). FAR Case 2006-022 provided requirements for contractor performance information to be entered into PPIRS. This case, at the request of the Office of Federal Procurement Policy (OFPP), expands on FAR Case 2006-022 by adding requirements for other contractor information to be entered into PPIRS, such as defective cost or pricing data and terminations for cause or default.                

                    The Councils further considered the memorandum issued by the Office of the Under Secretary of Defense, subject Termination Notification dated July 23, 2008, in drafting this proposed rule. (See                     *www.acq.osd.mil/​dpap/​ops/​policy_​vault_​archive.html.*)                

This proposed FAR rule includes the following:

1. Addition of language in FAR 8.406-8, Reporting, for the ordering activity contracting officer, in accordance with agency procedures, to ensure that information related to termination for cause notices and any amendments are included in PPIRS, and in the event the termination for cause is subsequently converted to a termination for convenience, or is otherwise withdrawn, the contracting officer shall ensure that a notice of the conversion or withdrawal is included in PPIRS.

2. Addition of language in FAR 12.403(c)(4) for the contracting officer, in accordance with agency procedures, to ensure that information related to termination for cause notices and any amendments are included in PPIRS in accordance with FAR 42.1503(f), and, in the event the termination for cause is subsequently converted to a termination for convenience, or is otherwise withdrawn, the contracting officer shall ensure that a notice of the conversion or withdrawal is included in PPIRS.

3. Addition of language in FAR 15.407-1(d) for the contracting officer, in accordance with agency procedures, to ensure that information relating to a determination that the contractor submitted defective cost or pricing data is provided for inclusion in PPIRS.

4. Addition of language in FAR 42.1503(f) setting forth the procedure for contracting officers within 10 days after determining that a contractor has submitted defective cost or pricing data, or a termination for cause or default notice has been issued or any subsequent conversions or withdrawals have been issued, to ensure information related to these issues are provided for inclusion in PPIRS.

5. Addition of language in FAR 49.402-8, Reporting Information, for the contracting officer, in accordance with agency procedures, to ensure that information relating to the termination for default notice and any subsequent conversions or withdrawals are provided for inclusion in PPIRS.

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.

## B. Regulatory Flexibility Act

                    The Councils 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 the rule does not impose any additional requirements on small businesses. The collection and reporting of contractor information is an internal process to the Government. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The Councils will consider comments from small entities concerning the affected FAR Parts 8, 12, 15, 42, and 49 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601,                     *et seq.*                     (FAR case 2008-016), in correspondence.                

## C. Paperwork Reduction Act

                    The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Chapter 35,                     *et seq.*

# List of Subjects in 48 CFR Parts 8, 12, 15, 42, and 49

      - Government procurement

Dated: August 27, 2009.

Al Matera,

Director, Acquisition Policy Division.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 8, 12, 15, 42, and 49 as set forth below:

1. The authority citation for 48 CFR parts 8, 12, 15, 42, and 49 continues to read as follows:

Authority:40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

      ( print page 45396)    

# PART 8—REQUIRED SOURCES OF SUPPLIES AND SERVICES

2. Add section 8.406-8 to read as follows:

8.406-8 

An ordering activity contracting officer, in accordance with agency procedures, shall ensure that information related to termination for cause notices and any amendments are included in PPIRS in accordance with 42.1503(f). In the event the termination for cause is subsequently converted to a termination for convenience, or is otherwise withdrawn, the contracting officer shall ensure that a notice of the conversion or withdrawal is included in PPIRS.

# PART 12—ACQUISITION OF COMMERCIAL ITEMS

3. Amend section 12.403 by adding paragraph (c)(4) to read as follows:

12.403 

* * * * *

(c) * * *

(4) The contracting officer, in accordance with agency procedures, shall ensure that information related to termination for cause notices and any amendments are included in PPIRS in accordance with 42.1503(f). In the event the termination for cause is subsequently converted to a termination for convenience, or is otherwise withdrawn, the contracting officer shall ensure that a notice of the conversion or withdrawal is included in PPIRS.

* * * * *

# PART 15—CONTRACTING BY NEGOTIATION

4. Amend section 15.407-1 by adding a new sentence to the end of paragraph (d) to read as follows:

15.407-1

* * * * *

(d) * * * When the contracting officer determines that the contractor submitted defective cost or pricing data, the contracting officer, in accordance with agency procedures, shall ensure that information relating to the determination is provided for inclusion in PPIRS in accordance with 42.1503(f).

* * * * *

# PART 42—CONTRACT ADMINISTRATION AND AUDIT SERVICES

5. Amend section 42.1502 by adding paragraph (i) to read as follows:

42.1502 

* * * * *

(i) Agencies shall promptly provide other contractor information for inclusion in PPIRS in accordance with 42.1503(f).

6. Amend section 42.1503 by removing from paragraph (a) the words “office, end” and adding “office, audit office, end” in its place; and adding paragraph (f) to read as follows:

42.1503 

* * * * *

                            (f)                             *Other contractor information*. Within 10 days after a contracting officer determines that a contractor has submitted defective cost or pricing data, or a termination for cause or default notice has been issued or any subsequent conversions or withdrawals have been issued, agencies shall ensure information related to these issues are provided for inclusion in PPIRS.                        

# PART 49—TERMINATION OF CONTRACTS

7. Add section 49.402-8 to read as follows:

49.402-8 

The contracting officer, in accordance with agency procedures, shall ensure that information relating to the termination for default notice and any subsequent conversions or withdrawals are provided for inclusion in PPIRS in accordance with 42.1503(f).

[FR Doc. E9-21176 Filed 9-1-09; 8:45 am]

BILLING CODE 6820-EP-S