2011-10919. Responsibility; Suspension and Debarment

AGENCY:

National Aeronautics and Space Administration.

ACTION:

Proposed rule with request for comments.

SUMMARY:

NASA is revising the NASA FAR Supplement (NFS) to update internal processing procedures related to suspension and debarment. Although the procedures do not impact the public and will not be codified in the Code of Federal Regulations, one related change does impact the public and that is a new requirement for contracting officers to notify prospective contractors if they are found to be non-responsible. Notification provides the prospective contractor with the opportunity to take corrective action prior to future solicitations.

DATES:

Interested parties should submit comments to NASA at the address below on or before July 5, 2011 to be considered in formulation of the final rule.

ADDRESSES:

Interested parties may submit comments, identified by RIN number 2700-AD54, using either of the following methods: (1) Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by inputting RIN 2007-AD64 under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “RIN 2007-AD54.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “RIN 2700-AD54” on your attached document. (2) E-mail: [e-mail]. Include RIN 2007-AD54 in the subject line of the message.

Comments received generally will be posted without change to http://www.regulations.gov,, including any personal information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT:

Leigh Pomponio, NASA, Office of Procurement, [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Background

NASA is proposing to amend the NASA FAR Supplement to include a requirement for contracting officers to notify prospective contractors if they are found non-responsible for award. Such notification permits potential contractors to improve their opportunities for future awards by addressing the non-responsibility issues. This proposed rule is consistent with FAR 9.104-6, Federal Awardee Performance and Integrity Information System (FAPIIS). Because contracting officers use FAPIIS to obtain pre-award information, and to enter determinations of non-responsibility for public display, it is a good practice to personally notify contractors of non-responsibility findings and the basis of the finding in an effort to afford potential contractors an opportunity to improve the underlying causes for a non-responsibility determination and to promote maximum competition for future awards.

B. Executive Order 12866 and Executive Order 13563

Executive Orders 13563 and 12866 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 proposed rule has NOT been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. This is not a major rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

This final rule is not expected 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 it does not impose any new requirements on small entities. This rule only imposes requirements on Government personnel; the impact on the public, including small entities, is the receipt of additional information.

D. Paperwork Reduction Act

The Paperwork Reduction Act (Pub. L. 104-13) is not applicable because the NFS changes do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 1809

Government procurement.

William P. McNally,

Assistant Administrator for Procurement.

Accordingly, 48 CFR Part 1809 is amended as follows:

1. The authority citation for 48 CFR Part 1809 continues to read as follows:

Authority: 42 U.S.C. 2455(a), 2473(c)(1)

PART 1809—CONTRACTOR QUALIFICATIONS

2. Section 1809.105-2 is added to Subpart 1809.1 to read as follows:

1809.105-2

Determinations and documentation.

(a) The contracting officer shall provide written notification to a prospective contractor determined not responsible, which includes the basis for the determination. Notification provides the prospective contractor with the opportunity to take corrective action prior to future solicitations.