2011-16632. Contractor Performance Information

AGENCY:

Environmental Protection Agency (EPA),

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency is issuing a final rule to amend the Environmental Protection Agency Acquisition Regulation (EPAAR) to establish new procedures for recording and maintaining contractor performance information. EPA is issuing a final rule because the changes are procedural in nature, and we do not anticipate any adverse comments.

DATES:

This rule is effective October 3, 2011 without further action, unless adverse comment is received by August 4, 2011. If adverse comment is received, the EPA will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OARM-2010-1032, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: EPA-HQ-OARM-2010-1032, OEI Docket, Environmental Protection Agency, 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of three (3) copies.
• Hand Delivery: EPA Docket Center-Attention OEI Docket, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OARM-2010-1032. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket, and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment, and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov,, or in hard copy at the Government Property-Contract Property Administration Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the EPA Docket Center is [phone]. This Docket Facility is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Staci Ramrakha, Policy, Training, and Oversight Division, Acquisition Policy and Training Service Center (3802R), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington DC 20460; telephone number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. General Information

1. Submitting Classified Business Information (CBI). Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI, and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket.

Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.

II. Background

The EPA recently transitioned from the National Institutes of Health's Contractor Performance System (CPS) to the Department of Defense's Contractor Performance Assessment Reporting System (CPARS). As a result, the requirement to use CPS is being removed from the EPAAR and applicable CPARs instructions are being added. In addition, all past performance requirements are being moved from subpart 1509 to 1542 in order to align with past performance information in the FAR.

III. Final Rule

This final rule makes the following changes: (1) Remove EPAAR 1509-170, Contractor Performance Evaluations; (2) Remove EPAAR clause 1552.209-76, Contractor Performance Evaluations; (3) Add EPAAR 1542.15, Contractor Performance Information; (4) Add EPAAR 1552.242-71, Contractor Performance Evaluations.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impact of today's proposed rule on small entities, “small entity” is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated, and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. Since documenting past performance is applicable to large and small entities, this rule will not have a significant economic impact on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Any private sector costs for this action relate to paperwork requirements and associated expenditures that are far below the level established for UMRA applicability. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA. This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed action from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this action. In the spirit of Executive Order 13175, and consistent with EPA policy to promote communication between EPA and Tribal governments, EPA specifically solicits additional comment on this proposed rule from Tribal officials.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment.

K. Congressional Review

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.

List of Subjects in 48 CFR Parts 1509, 1542 and 1552

• Environmental protection
• Contractor performance information
• Describing agency needs

Dated: June 27, 2011.

John R. Bashista,

Director, Office of Acquisition Management.

Therefore, 48 CFR Chapter 15 is amended as set forth below:

1. The authority citation for 48 CFR parts 1509, 1542 and 1552 continues to read as follows:

5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b

PART 1509—CONTRACTOR QUALIFICATIONS

Subpart 1509.170 [Removed]

2. Remove subpart 1509.170, consisting of 1509.170-1 through 1509.170-8.

PART 1542—CONTRACT ADMINISTRATION

3. Add subpart 1542.15, consisting of 1542.1500 and 1542.1502 through 1542.1504, to read as follows:

Subpart 1542.15—Contractor Performance Information

1542.1500

Scope of subpart.

1542.1502

Policy.

1542.1503

Procedures.

1542.1504

Clauses.

Subpart 1542.15—Contractor Performance Information

§ 1542.1500

Scope of subpart.

This subpart provides EPA policies and establishes responsibilities for recording and maintaining contractor performance information.

§ 1542.1502

Policy.

EPA contracting officers shall prepare an evaluation of contractor performance for all applicable contracts and orders with a total estimated value greater than the simplified acquisition threshold in accordance with FAR 42.1502. For acquisitions involving options, the total estimated value of the acquisition shall include the estimated base amount plus the option(s) amount(s). Evaluations shall be completed no later than 120 days after the end of the evaluation period.

§ 1542.1503

Procedures.

(a) Past Performance Database. EPA contracting officers shall use the Contractor Performance Assessment Reporting System (CPARS) which has connectivity with the Past Performance Information Retrieval System (PPIRS).

(b) Frequency and Types of Report. CPARS includes four types of reports: Initial, Intermediate, Final and Out-of-Cycle.

(1) An initial report is required for new contracts/orders meeting the thresholds in FAR 42.15 with a period of performance greater than 365 days. The initial CPAR must reflect evaluation of at least the first 180 days of performance and may include up to the first 365 days of performance.

(2) Intermediate reports are due every 12 months throughout the entire period of the contract after the initial report and up to the final report. While formal reports are only required every 12 months, contracting officers should discuss past performance with contractors on an ongoing basis.

(3) A final report shall be prepared upon contract completion. Contracts/orders with less than 365 days performance only require a final report. For contracts longer than 365 days, the final report is not cumulative and covers only the period of performance following the last intermediate report. Final past performance reports must be completed prior to contract closeout.

(4) An out-of-cycle report may be prepared when there is a significant change of performance that alters the assessment in one or more evaluation areas. The contractor may request an Out-of-cycle report be prepared; however, the decision of whether or not to do so is at the discretion of the contracting officer. An out-of-cycle report does not alter the annual intermediate reporting requirement.

(c) Preparing the Evaluation. The contracting officer's representative shall initiate all reviews and forward to the contracting officer for approval. The content of the evaluations shall be based on objective data supportable by program and contract management records. Remarks should be tailored to the contract type, size, content, and complexity. Contracting officers should provide their own input on the evaluation as applicable and obtain input from the program office, administrative contracting office, end users of the product or service, and any other technical or business advisor, as appropriate.

(d) Small Business Subcontracting Plan. 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 FAR 52.219-9, Small Business Subcontracting Plan.

(e) Novation Agreements/Name Changes. In cases of novations involving successors-in-interest, a final evaluation of the predecessor contractor's performance must be accomplished. The predecessor contractor's final past performance report shall cover the last 12 months (or less) of contract or order performance. In cases of change-of-name agreements, the system shall be changed to reflect the new contractor's name.

(f) File Documentation. Copies of the evaluation, contractor response, and review comments (if any) shall be retained as part of the evaluation, and hard copies shall be contained in contract files.

§ 1542.1504

Clauses.

EPA contracting officers shall insert the contract clause at 1552.242-71 in all solicitations, contracts, and orders requiring past performance reports in accordance with FAR Subpart 42.1502. For acquisitions involving options, the total estimated value of the acquisition shall include the estimated base amount plus the option(s) amount(s).

PART 1552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

§ 1552.209-76

[Removed]

4. Remove 1552.209-76.

5. Add 1552.242-71 to read as follows:

§ 1552.242-71

Contractor performance evaluations.

As prescribed in section 1542.1504, insert the following clause in all applicable solicitations and contracts.

Contractor Performance Evaluations

In accordance with Federal Acquisition Regulation (FAR) Subpart 42.15 and EPAAR 1542.15, the EPA will prepare and submit past performance evaluations to the Past Performance Information Retrieval System (PPIRS). Evaluation reports will be documented not later than 120 days after the end of an evaluation period by using the Contractor Performance Assessment Reporting System (CPARS) which has connectivity with PPIRS. Contractors must register in CPARS in order to view/comment on their past performance reports.