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Proposed Rules Intended to Bolster Past Performance Information

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have proposed two rules to amend the Federal Acquisition Regulation's requirements for reporting and verifying contractor performance. Both rules further the objectives of the President's March 4, 2009, Memorandum on Government Contracting. One rule (FAR Case 2008-016) would establish procedures requiring contracting officers to enter contractor information into the Past Performance Information System. The second rule (FAR Case 2008-027) would establish and maintain a data system containing specific information on the integrity and performance of covered contractors.
 
PPIRS

The FAR Case 2008-016 proposed rule stresses the importance of evaluating past performance information, especially terminations, and managing risks associated with timely, effective, and cost efficient completion of contracts. This rule supplements the FAR Case 2006-022 final rule, Contractor Performance Information, published in FAC 2005-34. That rule provided requirements for entering contractor performance information into PPIRS. This rule expands on the final rule by adding requirements for other contractor information in PPIRS, including defective cost or pricing data and terminations for cause or default. The rule would add a new provision at FAR 8.406-8 to ensure 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and in the event the termination for cause is subsequently converted to a termination for convenience, or is otherwise withdrawn, the contracting officer must ensure a notice of the conversion or withdrawal is included in PPIRS. Language added to FAR 12.403(c)(4) instructs COs to ensure information related to termination for cause notices and any amendments are included in PPIRS in accordance with FAR 42.1503(f). The amendment to FAR 15.407-1(d) provides for the inclusion of information regarding a contractor's submission of defective cost or pricing data. Revised FAR 42.1503(f) sets forth the procedures a CO must follow to include the relevant information in the PPIRS. A new provision, FAR 49.402-8, would contain similar language pertaining to termination for default notices. Comments on the proposed rule, identified by its FAR case number, are due November 2, 2009. For the text of the rule, see 70,006.234.

Performance Integrity

The FAR Case 2008-027 proposed rule would implement Section 872 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (PL 110-417), which requires the General Services Administration to establish and maintain a data system containing specific information on the integrity and performance of covered contractors and grantees. Section 872 also requires awarding officials to review the data system and consider other past performance information when making any past performance evaluation or responsibility determination. The rule would amend FAR Subpart 9.1, Responsible Prospective Contractors, FAR Subpart 9.4, Debarment, Suspension, and Ineligibility, and solicitation provisions and contract clauses in FAR Part 52, as well as making conforming changes in FAR Part 12, Acquisition of Commercial Items. For a full listing of the provisions impacted by this proposed rule, see the Regulation Table below. Comments on the rule, identified by its FAR case number, are due October 5, 2009. The text of the proposed rule appears at 70,006.235.
 

 

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )

     
  
 

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