2011-23952. 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:

Final rule.

SUMMARY:

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove the requirement to use DoD-unique forms to prepare contractor performance evaluations for construction and architect-engineer services.

DATES:

Effective Date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT:

Mr. Manuel Quinones, telephone, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

This rule removes the requirement to use DoD-unique forms to document contractor past performance for construction and Architect-Engineer services. On April 19, 2011, DoD published a proposed rule in the Federal Register at 75 FR 21851 to delete outdated procedures and references to obsolete DD forms. No public comments were received in response to the proposed rule.

One editorial change is being made to the final rule. The references to “A-E” are revised to read “architect-engineer” in sections 236.102, 236.602-70, 236.606-70, and in 236.609-70.

II. 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, is 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.

III. Regulatory Flexibility Act

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows.

DoD is amending the DFARS to reflect the current automated process being used by and delete outdated procedures and references to obsolete DD forms. The objective of this rule is to remove the requirement to use DD Form 2626, Performance Evaluation (Construction), and DD Form 2631, Performance Evaluation (Architect-Engineer), to evaluate contractor performance.

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 forms to collect the data. Accordingly, this rule removes the requirement to use DD forms 2626 and 2631 from the DFARS.

On April 19, 2011, DoD published a proposed rule at 75 FR 21851. The period for public comments closed on June 20, 2011. DoD made no changes to the proposed rule because public comments were not received in response to the initial regulatory flexibility analysis.

There are no reporting, recordkeeping, or other compliance requirements associated with this rule. Thus, there are no professional skills necessary on the part of small businesses. In a like manner, there are no direct costs to small entities to comply with this rule other than the cost of internet access should small entities choose to comment on their past performance evaluation entered into CPARS by Government personnel.

There are no known relevant Federal rules that may duplicate, overlap or conflict with this rule. Instead, the rule aligns the DFARS to the Federal Acquisition Regulation (FAR) ensuring that agencies submit past performance reports electronically per FAR 42.15 eliminating the need for paper reports.

No mitigation steps were taken, since the rule does not have a significant adverse economic impact on small entities.

IV. Paperwork Reduction Act

This rule does not impose 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).

List of subjects in 48 CFR Part 236

• Government procurement

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 236 is amended as follows:

PART 236—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

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.

236.102

[Amended]

2. Amend section 236.102 by—

(a) Removing paragraph designations (1) through (4);

(b) Redesignating paragraphs (i) and (ii) in the definitions of “Construction activity” as paragraphs (1) and (2); and

(c) Removing the definition of “A-E”.

236.201

[Removed]

3. Section 236.201 is removed.

236.602-70

[Amended]

4. Amend section 236.602-70 by removing “A-E” and adding in its place “architect-engineer”.

5. 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 architect-engineer contractor's performance.

236.606-70

Statutory fee limitation. [Amended]

6. Amend section 236.606-70(a) to remove “A-E” and add in its place “architect-engineer”.

236.609-70

[Amended]

7. Amend section 236.609-70 as follows—

(a) In paragraph (a)(1) introductory text remove “A-E” and add in its place “architect-engineer”.

(b) In paragraph (a)(1)(ii) remove “A-E” and add in its place “architect-engineer contractor”.

(c) In paragraph (b) introductory text remove “A-E” and add in its place “architect-engineer”.