Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31557 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 8, 9, 13, 17, 36, 42, and 

53 

[FAC 2005–34; FAR Case 2006–022; Item 

I; Docket 2008–0002; Sequence 2] 

RIN 9000–AK99 

Federal Acquisition Regulation; FAR 

Case 2006–022, Contractor 

Performance Information 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to revise the 

contractor performance information 

process. This change primarily 

emphasizes the use of a standard 

performance information reporting 

system, the Past Performance 

Information Retrieval System (PPIRS). 

This change aligns with the President’s 

March 4, 2009 Memorandum on 

Government Contracting specifically 

with regards to managing the 

Government’s risk associated with the 

goods and services being procured and 

ensuring projects are completed 

effectively and efficiently. 

DATES: Effective Date: July 1, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Jeritta Parnell, Procurement Analyst, at 

(202) 501–4082. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–34, FAR case 2006–022. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Past performance information (PPI) 

can decrease the Government’s risk in 

contracting by rating, at a minimum, 

quality of work, timeliness, cost, and 

business relations of contractors for 

projects above a specified threshold. PPI 

incentivizes contractors to perform well 

in order to be rewarded with future 

contracts. 

The Office of Federal Procurement 

Policy (OFPP) and the Chief Acquisition 

Officer’s Acquisition Council for E-GOV 

(ACE) established a working group to 

review regulations, policies, and 

guidance associated with contractor 

performance information. The working 

group proposed changes to a number of 

FAR parts. The Councils have agreed to 

some, but not all the changes under this 

final rule. 

The purpose of the final rule is to 

ensure that the FAR clearly reflects the 

use of the Governmentwide 

performance information repository, 

Past Performance Information Retrieval 

System (PPIRS) at http://www.ppirs.gov; 

requires the evaluation of past 

performance for orders exceeding the 

simplified acquisition threshold placed 

against Federal Supply Schedule 

contracts, or under a task order or 

delivery order against a contract 

awarded by another Federal agency (i.e. 

Governmentwide acquisition contract or 

multi-agency contract); recommends 

past performance information for orders 

under single agency contracts; 

consolidates the collection of past 

performance guidance in FAR Part 42; 

and, clarifies that the Agency shall 

identify those responsible for preparing 

interim and final evaluations. 

The Councils published a proposed 

rule with request for comments in the 

Federal Register at 73 FR 17945, April 

2, 2008. Forty comments from ten 

respondents were received. 

B. Discussion of Public Comments 

The comments received were grouped 

under five general topics. A summary of 

these topics and a discussion of the 

comments and the changes made to the 

proposed rule as a result of those 

comments are provided below: 

Miscellaneous Comments 

Comment: One Respondent 

recommended adding a definition for 

‘‘completed contracts’’ under FAR 

2.101. 

Response: The definition of past 

performance is revised from ‘‘completed 

contracts’’ to ‘‘physically completed 

contracts.’’ 

Comment: One respondent disagreed 

with the revisions as written in the third 

person. 

Response: In this particular instance, 

third person is appropriate. There was 

no change made to the final rule as a 

result of this comment. 

Comment: Two respondents suggested 

adding language to include the FAR 

clause 52.219–8, Utilization of Small 

Business Concerns, as well as the FAR 

clause 52.219–9, Small Business 

Subcontracting Plan, which requires an 

assessment of the other nine elements of 

a subcontracting plan and utilizing 

small businesses. 

Response: This case addresses goals 

as required by FAR 52.219–9. This case 

continues the current FAR focus on 

compliance with the goals. There was 

no change made to the final rule as a 

result of this comment. 

Comment: One respondent 

recommended that past performance 

assessments should address small 

business utilization as a whole in 

addition to subcontracting plan 

requirements by referencing FAR 

52.219–8 and 52.219–16. 

Response: It is not beneficial to 

further reference FAR 52.219–8, 

Utilization of Small Business Concerns, 

as addressed in the preceding comment 

and response. Furthermore, it is not 

beneficial to include a reference to FAR 

52.219–16, Liquidated Damages— 

Subcontracting Plan, since this clause 

establishes procedures for the payment 

of liquidated damages in the event that 

the contractor failed to meet the 

requirements established under FAR 

52.219–9, and does not set forth 

contractual performance requirements 

that may be assessed. There was no 

change made to the final rule as a result 

of this comment. 

Comment: One respondent suggested 

that the requirement for the inclusion of 

FAR 52.219–9, Small Business 

Subcontracting, be excepted for delivery 

or task orders against Federal Supply 

Schedules or Governmentwide 

contracts. 

Response: Contractor subcontracting 

plans under Federal Supply Schedules 

and Governmentwide contracts are 

established on a contract level, not task 

order level. The Councils agree that it 

would be inappropriate to require an 

evaluation of contractor performance for 

individual task orders against a small 

business subcontracting plan that has 

been established on a contract level for 

Federal Supply Schedules and 

Governmentwide contracts. Contracting 

officers may include such an assessment 

on single agency task order and delivery 

order contracts when deemed 

appropriate. FAR 42.1502(c) and (d) are 

revised to reflect this change. 

Comment: One respondent indicated 

support for the proposed rule as written. 

Response: The Councils have noted 

this comment. 

Past Performance Information Retrieval 

System (PPIRS) 

Comment: One respondent 

recommended two changes - changing 

from the ‘‘Government wide Past 

Performance Information Retrieval 

System (PPIRS)’’ to the ‘‘Government 

wide past Performance Information 

Retrieval System-Report Card (PPIRSRC),’’ and adding an additional 

31558 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

paragraph to reference the PPIRS-Report 

Card. 

Response: PPIRS is the universally 

accepted database used by all agencies. 

The FAR does not preclude the usage of 

additional systems. There was no 

change made to the final rule as a result 

of this comment. 

Comment: One respondent suggested 

revising the performance information 

system to improve access to provide 

more timely, accurate and detailed 

performance assessments for acquisition 

personnel. 

Response: These kinds of 

improvements to the past performance 

system are outside the scope of this 

case. This rule, however, will improve 

the contractor performance information 

process. There was no change made to 

the final rule as a result of this 

comment. 

Comment: Two respondents suggested 

including a reference to PPIRS in FAR 

15.305(a)(2). 

Response: There was no intent to 

change the evaluation criteria set forth 

in FAR 15.305. There was no change 

made to the final rule as a result of this 

comment. 

Comment: One respondent 

recommended moving the language 

from FAR 42.1503(e) to FAR Part 15 

since this language appears to be 

information regarding source selection. 

Response: This language deals with 

retention of past performance 

information rather than required 

procedures to be utilized in a source 

selection, and is therefore a post award 

function that is appropriately retained 

in FAR 42.1503(e). There was no change 

made to the final rule as a result of this 

comment. 

Comment: One respondent 

recommended clarification for 

information retention. The respondent 

suggested the following language: 

‘‘Agencies shall not retain past 

performance information longer than 

three years (six years for construction 

and architect engineer contracts.)’’ 

Response: These documents are part 

of the official contract file and must be 

retained. The intent of this language is 

to ensure that past performance data is 

current and relevant. The use of the past 

performance information that may be 

obtained from PPIRS for acquisition 

evaluations is limited to the 3-year 

timeframe (six years for construction 

and architect engineer contracts). PPIRS 

archives past performance data three 

years after the data is input into PPIRS. 

There was no change made to the final 

rule as a result of this comment. 

Comment: One respondent questioned 

the period of retention of past 

performance information for 

construction. 

Response: This language was merely 

consolidated and relocated under FAR 

Part 42 without change. Due to the 

nature of construction and A&E 

contracts, retention of such past 

performance information is necessarily 

longer than for contracts for other 

products/services. There was no change 

made to the final rule as a result of this 

comment. 

Comment: One respondent suggested 

the wording is unclear in FAR 

42.1503(e). 

Response: The language was revised 

to delete ‘‘For source selection 

purposes’’ to clarify that this is a post 

award function rather than a source 

selection function. 

Comment: One respondent suggested 

adding another paragraph to FAR 

42.1503 to address information 

retention. 

Response: Previous FAR language 

regarding retaining records is outdated. 

Rather than being destroyed, PPIRS 

electronic records will be retained 

through archiving beyond the specified 

3 and 6 year timeframes. The language 

was revised at the time of the proposed 

rule to reflect timeframes for access and 

use of this information. There was no 

change made to the final rule as a result 

of this comment. 

Past Performance Reporting 

Comment: One respondent 

recommended changing the term 

‘‘evaluation’’ to ‘‘assessment’’ or ‘‘report 

card.’’ 

Response: The terms ‘‘evaluation’’ 

and ‘‘assessment’’, as used in FAR Part 

42, are synonymous in this context. 

There was no change made to the final 

rule as a result of this comment. 

Comment: One respondent would like 

a clarification to the language that states 

that agencies shall submit past 

performance reports electronically to 

PPIRS in accordance with agency 

procedures. 

Response: The intent of the language 

is to require submission of past 

performance evaluations to PPIRS in a 

method prescribed under agency 

procedures. The language at FAR 

42.1503(c) has been revised to clarify 

that the process for submitting such 

reports to PPIRS shall be in accordance 

with agency procedures. 

Comment: One respondent 

recommended additional language in 

the last sentence of FAR 42.1502(a) as 

follows: ‘‘The content and format of 

performance evaluations shall be 

established in accordance with agency 

procedures and should be tailored to the 

size, content, and complexity of the 

requirements.’’ 

Response: The Councils interpret the 

intent of the comment was to obtain 

greater detail in the evaluations. The 

language is sufficient as proposed. 

There was no change made to the final 

rule as a result of this comment. 

Comment: One respondent suggested 

expanding the case to cover 

responsibilities for negative past 

performance information received from 

surveys or questionnaires. 

Response: The FAR already has 

sufficient provisions allowing 

contracting officers to discuss negative 

past performance information with 

offerors. There was no change made to 

the final rule as a result of this 

comment. 

Comment: One respondent suggested 

that some form of incentive or other 

documented means be provided to 

encourage and ensure that information 

is timely provided into the system. 

Response: This is a requirement of 

agencies in the normal course of duties 

assigned to their designated personnel 

as required in FAR 42.1502 and 

42.1503. As such, an additional 

incentive would be inappropriate. There 

was no change made to the final rule as 

a result of this comment. 

Comment: Three respondents 

suggested that the identification of an 

‘‘individual’’ responsible for preparing 

evaluations is too restrictive and 

recommended flexibility for each 

agency to determine the responsible 

individual or individuals by title or 

organizational element. 

Response: The Councils agree with 

the comment. The language at FAR 

42.1503(a) is revised to read ‘‘Agency 

procedures shall identify those 

responsible for preparing interim and 

final evaluations.’’ 

Comment: One respondent 

recommended that past performance 

evaluations should be required for all 

contracts that are terminated for default. 

Response: The Councils have noted 

this comment and will consider this 

issue under a separate rule. There was 

no change made to the final rule as a 

result of this comment. 

Past Performance Evaluation 

Comment: One respondent 

recommended that evaluations over the 

simplified acquisition threshold be 

submitted when ‘‘an extraordinary event 

or occurrence takes place.’’ 

Furthermore, the respondent questioned 

the value of performance evaluations on 

each order over the simplified 

acquisition threshold. 

Response: The information is 

necessary and required. There was no 

change made to the final rule as a result 

of this comment. 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31559 

Comment: One respondent suggested 

a change to the mandatory evaluation of 

orders over the simplified acquisition 

threshold from ‘‘shall’’ to ‘‘may.’’ 

Response: The Councils do not agree 

with changing ‘‘shall’’ to ‘‘may.’’ It is the 

intent of this rule to capture the 

universe of contracts which includes 

task orders against basic contracts. 

Likewise, nothing prevents prudent 

contracting officers from addressing 

extraordinary circumstances on 

contracts under the simplified 

acquisition threshold where a past 

performance evaluation may be 

warranted. There was no change made 

to the final rule as a result of this 

comment. 

Comment: Two respondents 

recommended revising FAR 13.106– 

2(b)(3)(ii) to read ‘‘May be based on one 

or more of the following:’’ to encourage 

contracting officers to use more than 

one tool in identifying offerors’ past 

performance information. 

Response: The Councils agree with 

this comment. FAR 13.106–2(b)(3)(ii) is 

revised to read ‘‘May be based on one 

or more of the following:’’ 

Comment: One respondent suggested 

that PPIRS is not a mandatory source of 

information and that other sources are 

available. 

Response: PPIRS is the universally 

accepted database used by all agencies. 

PPIRS is not the only source for past 

performance information that may be 

utilized in source selection evaluations. 

However, under this rule, agencies are 

now required to submit past 

performance information to PPIRS. 

Agencies will establish procedures to 

effect these electronic submissions. 

There was no change made to the final 

rule as a result of this comment. 

Comment: One respondent suggested 

amending FAR 13.106–2(b)(3)(ii) to 

include other available sources as 

previously addressed. 

Response: FAR 13.106–2(b)(3)(ii) is 

revised to read ‘‘May be based on one 

or more of the following:’’ 

Comment: Two respondents 

recommended defining ‘‘relevant past 

performance information.’’ 

Response: Relevancy is subjective and 

should be left to the contracting officer’s 

discretion on a case by case basis. There 

was no change made to the final rule as 

a result of this comment. 

Comment: One respondent suggested 

providing objective criteria and weights 

for acquisition officials. 

Response: This requirement is 

addressed in FAR 15.305(a)(2)(i). These 

past performance evaluations are 

subjective based on the current 

acquisition. Assigning weighted values 

to evaluation criteria, including past 

performance, is the purview of the 

Source Selection Authority. There was 

no change made to the final rule as a 

result of this comment. 

Thresholds 

Comment: One respondent 

recommended that the reference to the 

Simplified Acquisition Threshold (SAT) 

should be limited to the lowest dollar 

value for the SAT in the definition of 

FAR 2.1. 

Response: Due to the extraordinary 

nature of the performance under 

contracts that qualify for higher 

simplified acquisition thresholds, it 

would not be appropriate to require the 

preparation of evaluations at the lowest 

SAT for each contract. Agency 

designated personnel have the 

discretion to prepare and submit to 

PPIRS an evaluation of contractor 

performance at any threshold when they 

deem it appropriate. There was no 

change made to the final rule as a result 

of this comment. 

Comment: One respondent suggested 

that the threshold specific to orders 

placed against an FSS, GWAC, or other 

multi-agency contract be raised to 

$550,000 rather than all orders 

exceeding the SAT. 

Response: It is the intent of this rule 

to capture the universe of contracts that 

includes task orders against basic 

contracts. There was no change made to 

the final rule as a result of this 

comment. 

Comment: Two respondents 

recommended changing the language in 

FAR 42.1502(c) and 42.1502(d) as 

follows: ‘‘task order contract or a 

delivery order contract’’ to ‘‘indefinitedelivery contract.’’ 

Response: The phrase ‘‘task order 

contract or delivery order contract’’ is 

more specific. This change was not 

intended to cover definite quantity 

contracts as proposed by the 

commenter. There was no change made 

to the final rule as a result of this 

comment. 

Summary of Changes to the Proposed 

Rule 

The Councils made the following 

changes to the proposed rule as a result 

of the public comments and Council 

deliberations. The final rule reflects the 

following changes: 

FAR 2.101 

The definition of past performance 

was revised to clarify the term 

‘‘completed contract’’ as one that is 

physically completed in accordance 

with FAR 4.804–4. 

FAR 8.406–7 

The addition of language to advise 

ordering activities that past performance 

evaluations required in FAR 42.1502(c) 

are applicable to orders. 

FAR 13.106–2 

Language was revised to encourage 

contracting officers to utilize more than 

one tool in identifying offerors’ past 

performance information. 

FAR 42.1502(c) and (d) 

Language was added to clarify the 

consideration of small business goals in 

past performance evaluations for 

Governmentwide acquisition contracts, 

multi-agency contracts, and singleagency task order and delivery order 

contracts. 

FAR 42.1503(a) 

Language was revised to clarify that 

agency procedures shall identify those 

responsible for preparing interim and 

final evaluations. 

FAR 42.1503(c) 

Language was revised to clarify that 

agencies shall be responsible for 

establishing procedures for reporting 

past performance information to PPIRS. 

FAR 42.1503(e) 

Language was revised to delete the 

phrase ‘‘For source selection purposes’’ 

in order to clarify that this language 

deals with retention of past performance 

information rather than required 

procedures to be utilized in a source 

selection. 

C. Regulatory Analyses 

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 

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

D. Regulatory Flexibility Act 

The Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration certify that this final 

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 

rule does not impose any additional 

requirements on small businesses. The 

collection and reporting of past 

performance information is an internal 

process to the Government. The rule 

merely puts into effect the current 

practices of prudent contracting officers. 

In addition, the rule provides clearer 

instruction to contracting officers by 

restating in a better format the current 

language. 

E. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the 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. 

31560 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

List of Subjects in 48 CFR Parts 2, 8, 9, 

13, 17, 36, 42, and 53 

Government procurement. 

Dated: June 25, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 2, 8, 9, 13, 17, 36, 

42, and 53 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 2, 8, 9, 13, 17, 36, 42, and 53 

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). 

PART 2—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Amend section 2.101 in paragraph 

(b)(2) by adding, in alphabetical order, 

the definition ‘‘Past performance’’ to 

read as follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

Past performance means an offeror’s 

or contractor’s performance on active 

and physically completed contracts (see 

4.804–4). 

* * * * * 

PART 8—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

■ 3. Add section 8.406–7 to read as 

follows: 

8.406–7 Contractor Performance 

Evaluation. 

Ordering activities must prepare an 

evaluation of contractor performance for 

each order that exceeds the simplified 

acquisition threshold in accordance 

with 42.1502(c). 

PART 9—CONTRACTOR 

QUALIFICATIONS 

■ 4. Amend section 9.105–1 by revising 

the second sentence of the introductory 

text of paragraph (c); and removing 

paragraph (c)(7). The revised text reads 

as follows: 

9.105–1 Obtaining information. 

* * * * * 

(c) * * * In addition to the 

Governmentwide performance 

information repository, Past 

Performance Information Retrieval 

System (PPIRS) (at www.ppirs.gov), the 

contracting officer should use the 

following sources of information to 

support such determinations: 

* * * * * 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 5. Amend section 13.106–2 by 

revising paragraph (b)(3)(ii) to read as 

follows: 

13.106–2 Evaluation of quotations or 

offers. 

* * * * * 

(b) * * * 

(3) * * * 

(ii) May be based on one or more of 

the following: 

(A) The contracting officer’s 

knowledge of and previous experience 

with the supply or service being 

acquired; 

(B) Customer surveys, and past 

performance questionnaire replies; 

(C) The Governmentwide Past 

Performance Information Retrieval 

System (PPIRS) at www.ppirs.gov; or 

(D) Any other reasonable basis. 

* * * * * 

PART 17—SPECIAL CONTRACTING 

METHODS 

■ 6. Amend section 17.207 by removing 

from the end of paragraph (c)(3) the 

word ‘‘and’’; removing the period from 

the end of paragraph (c)(4) and adding 

‘‘; and’’ in its place; and adding 

paragraph (c)(5) to read as follows: 

17.207 Exercise of options. 

* * * * * 

(c) * * * 

(5) The contractor is not listed on the 

Excluded Parties List System (EPLS) 

(see FAR 9.405–1). 

* * * * * 

PART 36—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

■ 7. Revise section 36.201 to read as 

follows: 

36.201 Evaluation of contractor 

performance. 

See 42.1502(e) for the requirements 

for preparing past performance 

evaluations for construction contracts. 

36.602–3 [Amended] 

■ 8. Amend section 36.602–3 by 

removing from paragraph (a) ‘‘36.604’’ 

and adding ‘‘36.603’’ in its place. 

■ 9. Amend section 36.603 by revising 

paragraph (d)(4); and removing from 

paragraph (d)(5) ‘‘36.604(c)’’ and adding 

‘‘42.1502(f)’’ in its place. The revised 

text reads as follows: 

36.603 Collecting data on and appraising 

firms qualifications. 

* * * * * 

(d) * * * 

(4) Assuring that the file contains a 

copy of each pertinent performance 

evaluation (see 42.1502(f)). 

* * * * * 

■ 10. Revise section 36.604 to read as 

follows: 

36.604 Performance evaluation. 

See 42.1502(f) for the requirements for 

preparing past performance evaluations 

for architect-engineer contracts. 

36.701 [Amended] 

■ 11. Amend section 36.701 by 

removing paragraph (d). 

36.702 [Amended] 

■ 12. Amend section 36.702 by 

removing paragraph (c). 

PART 42—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

■ 13. Revise section 42.1502 to read as 

follows: 

42.1502 Policy. 

(a) Past performance evaluations shall 

be prepared as specified in paragraphs 

(b) through (g) of this section at the time 

the work under the contract or order is 

completed. In addition, interim 

evaluations shall be prepared as 

specified by the agencies to provide 

current information for source selection 

purposes, for contracts or orders with a 

period of performance, including 

options, exceeding one year. These 

evaluations are generally for the entity, 

division, or unit that performed the 

contract or order. The content of the 

evaluations should be tailored to the 

size, content, and complexity of the 

contractual requirements. 

(b) Except as provided in paragraphs 

(e), (f) and (h) of this section, agencies 

shall prepare an evaluation of contractor 

performance for each contract that 

exceeds the simplified acquisition 

threshold. 

(c) 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. 

(d) 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 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31561 

information 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. 

(e) Past performance evaluations shall 

be prepared for each construction 

contract of $550,000 or more, and for 

each construction contract terminated 

for default regardless of contract value. 

Past performance evaluations may also 

be prepared for construction contracts 

below $550,000. 

(f) Past performance evaluations shall 

be prepared for each architect-engineer 

services contract of $30,000 or more, 

and for each architect-engineer services 

contract that is terminated for default 

regardless of contract value. Past 

performance evaluations may also be 

prepared for architect-engineer services 

contracts below $30,000. 

(g) Past performance evaluations shall 

include an assessment of contractor 

performance against, and efforts to 

achieve, the goals identified in the small 

business subcontracting plan when the 

contract includes the clause at 52.219– 

9, Small Business Subcontracting Plan. 

(h) Agencies shall not evaluate 

performance for contracts awarded 

under Subpart 8.7. 

■ 14. Amend section 42.1503 by 

revising paragraphs (a), (c), (d), and (e) 

to read as follows: 

42.1503 Procedures. 

(a) Agency procedures for the past 

performance evaluation system shall 

generally provide for input to the 

evaluations from the technical office, 

contracting office and, where 

appropriate, end users of the product or 

service. Agency procedures shall 

identify those responsible for preparing 

interim and final evaluations. Those 

individuals identified may obtain 

information for the evaluation of 

performance from the program office, 

administrative contracting office, end 

users of the product or service, and any 

other technical or business advisor, as 

appropriate. Interim evaluations shall be 

prepared as required. 

* * * * * 

(c) Agencies shall submit past 

performance reports electronically to 

the Past Performance Information 

Retrieval System (PPIRS) at 

www.ppirs.gov. The process for 

submitting such reports to PPIRS shall 

be in accordance with agency 

procedures. 

(d) Any past performance information 

systems used for maintaining contractor 

performance information and/or 

evaluations should include appropriate 

management and technical controls to 

ensure that only authorized personnel 

have access to the data. 

(e) Agencies shall use the past 

performance information in PPIRS that 

is within three years (six for 

construction and architect-engineer 

contracts) of the completion of 

performance of the evaluated contract or 

order. 

PART 53—FORMS 

53.236–1 Construction. 

■ 15. Amend section 53.236–1 by 

removing and reserving paragraph (a). 

■ 16. Amend section 53.236–2 by 

revising the section heading as set forth 

below; and removing paragraph (c). The 

revised text reads as follows: 

53.236–2 Architect-engineer services (SF’s 

252 and 330). 

* * * * * 

53.301–1420 and 53.301–1421 [Removed] 

■ 17. Remove sections 53.301–1420 and 

53.301–1421. 

[FR Doc. E9–15436 Filed 6–30–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 4, 9, and 52 

[FAC 2005–34; FAR Case 2008–009; Item 

II; Docket 2009–0020, Sequence 1] 

RIN 9000–AL28 

Federal Acquisition Regulation; FAR 

Case 2008–009, Prohibition on 

Contracting with Inverted Domestic 

Corporations 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to implement Section 

743 of Division D of the Omnibus 

Appropriations Act, 2009 (Public Law 

111–8). Section 743 of Division D of this 

Act prohibits the award of contracts 

using appropriated funds to any foreign 

incorporated entity that is treated as an 

inverted domestic corporation or to any 

subsidiary of one. 

The Department of Homeland 

Security (DHS) has had its own rule 

prohibiting contracting with inverted 

domestic corporations since December 

2003 (see 48 CFR Subpart 3009.1). The 

DHS rule implements section 835 of the 

Homeland Security Act of 2002 (P.L. 

107–296, 6 U.S.C. 395). 

DATES: Effective Date: July 1, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

August 31, 2009 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2008–009, by 

any of the following methods: 

•Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2008–009’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with FAR Case 2008– 

009. Follow the instructions provided to 

complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘FAR Case 2008–009’’ 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 FAC 2005–34, FAR case 

2008–009, 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: Ms. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925 for 

clarification of content. Please cite FAC 

2005–34, FAR case 2008–009. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat at (202) 501– 

4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This rule implements section 743 of 

Division D of the Omnibus 

Appropriations Act, 2009 (Public Law 

111–8). Although this is effective for 

Fiscal Year 2009 funds, the Councils