81 FR 11988 - Federal Acquisition Regulation; Information on Corporate Contractor Performance and Integrity
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 81, Issue 44 (March 7, 2016)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 81, Issue 44 (March 7, 2016)
| Page Range | 11988-11991 | |
| FR Document | 2016-04773 |
[Federal Register Volume 81, Number 44 (Monday, March 7, 2016)] [Rules and Regulations] [Pages 11988-11991] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-04773] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 4, 9, 22, and 52 [FAC 2005-87; FAR Case 2013-020; Item I; Docket 2013-0020, Sequence 1] RIN 9000-AM74 Federal Acquisition Regulation; Information on Corporate Contractor Performance and Integrity AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement section 852 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 to include in the Federal Awardee Performance and Integrity Information System (FAPIIS), to the extent practicable, identification of any immediate owner or subsidiary, and all predecessors of an offeror that held a Federal contract or grant within the last three years. The objective is to provide a more comprehensive understanding of the performance and integrity of the corporation before awarding a Federal contract. DATES: Effective: April 6, 2016. [[Page 11989]] FOR FURTHER INFORMATION CONTACT: Ms. Cecelia Davis, Procurement Analyst, at 202-219-0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-87, FAR Case 2013- 020. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA published a proposed rule in the Federal Register at 79 FR 71975 on December 4, 2014. The comment period closed on February 2, 2015. Two respondents submitted comments on the proposed rule. The final rule implements section 852 of the NDAA for FY 2013 (Pub. L. 112-239) with regard to Federal contracts. Section 852 requires that the FAPIIS include, to the extent practicable, information on any parent, subsidiary, or successor entities to a corporation in a manner designed to give the acquisition officials using the database a comprehensive understanding of the performance and integrity of the corporation in carrying out Federal contracts and grants. This final rule addresses the collection of information with regard to offerors that are responding to a solicitation for a Federal contract. The data on the immediate owner and direct subsidiaries of an entity will be available through FAPIIS, based on the data obtained from offerors in response to the FAR provision 52.204-17, Ownership or Control of Offeror, which was published in the Federal Register at 79 FR 31187 on May 30, 2014, as a final rule under FAR Case 2012-024. II. Discussion and Analysis The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows: A. Summary of Significant Changes There were no changes made in the final rule in response to the public comments received. B. Analysis of Public Comments Comment: One respondent commented that it would be helpful if the relevant FAR provisions and FAR clause 52.204-20 clarified whether the three year ``lookback'' period starts on the effective date of when the predecessor merged or was acquired by the successor or the date the contracts of the predecessor were novated from the predecessor to the successor. Response: The ``lookback'' period starts on the date the offeror signs the representation. If, within the three years prior to signing the representation, there was a merger or acquisition, it shall be reported. The date of novation is not relevant for purposes of this rule. Comment: One respondent supported the statute because it requires that information be provided to the contracting officers to aid in making responsibility determinations, and supported the position that the ``further the distance between entities, the less relevant the information is likely to be for establishing responsibility of the offeror.'' Response: Noted. Comment: One respondent commented that the proposed rule's requirement to report data on all predecessors of the offeror that received a Federal contract or grant within the last three years would apply an undue burden on prospective contractors and not achieve the Government's stated objective of providing a more comprehensive understanding of a potential contractor's performance and integrity. The respondent proposed that publicly traded companies subject to Securities and Exchange Commission requirements be exempt from this requirement because it instills a burden without benefit to the Government. Response: The statute does not allow for this exemption. Comment: One respondent commented that large multi-national organizations many times reorganize business units in order to effectively respond to changing needs of the marketplace. These reorganizations can include alternate legal structures. The assets of one legal entity may pass through three or four more before landing at the new entity. The respondent proposed that where the ultimate owner remains the same before and after a transaction, the contractor be exempted from providing information on predecessor entities. According to the respondent, this is consistent with the Government's exclusion of a ``new offices/divisions of the same company'' from the definition of ``successor''. Response: This recommendation does not meet the requirements of the statute. Comment: One respondent commented that contracting officers and their counsel perform a rigorous review and analysis to deal with the novation process and feels that there should be no requirement to identify prior owners within the FAPIIS because the required responsibility determination would have been conducted through novation. Response: The statute requires collection of information on predecessor, regardless of any novation action by the Government. Comment: The respondent commented that the reporting of the ultimate owners became effective on November 1, 2014, and believe that agencies should allow contractors and contracting officers time to implement and evaluate the results of this new requirement before adding more requirements that may not aid contracting officers in responsibility and integrity evaluations. Response: The statute does not allow the Government to delay the implementation of this Act. Comment: The respondent feels that commercially available off-the- shelf (COTS) items should be excluded from this requirement. Response: The Administrator of the Office of Federal Procurement Policy has determined that this rule applies to COTS items. C. Applicability Based on determinations by the FAR signatories (DoD, GSA, and NASA) and the Administrator for Federal Procurement Policy, in accordance with 41 U.S.C. 1905, 1906, and 1907, this rule applies to all solicitations and resultant contracts, including contracts and subcontracts for acquisitions in amounts not greater than the simplified acquisition threshold, and contracts and subcontracts for the acquisition of commercial items, (including commercially available off-the-shelf items). Because the emphasis of section 852 of the NDAA for FY 2013 (Pub. L. 112-239) is to provide acquisition officials using FAPIIS with a comprehensive understanding of the performance and integrity of the corporation in carrying out Federal contracts, it is not in the best interest of the Federal Government to waive the applicability of section 852 to contracts and subcontracts in amounts not greater than the simplified acquisition threshold, or for the acquisition of commercial items (including COTS items). III. Executive Order 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 [[Page 11990]] and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was 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. IV. Regulatory Flexibility Act DoD, GSA, and NASA do not expect this rule 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 the burden is minimal to provide the CAGE Code and the name of all predecessors that held a Federal contract or grant within the last three years. However, a Final Regulatory Flexibility Analysis has been performed and is summarized as follows: This case implements section 852 of the NDAA for FY 2013 (Pub. L. 112-239). The objective of this rule is to provide acquisition officials using the Federal Awardee Performance and Integrity Information System (FAPIIS) a comprehensive understanding of the performance and integrity of the corporation in carrying out Federal contracts. The legal basis for the rule is section 852 of the NDAA for FY 2013 (Pub. L. 112-239). No comments were received from the public relative to the initial regulatory flexibility analysis. It is not expected that this rule will 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 burden is minimal to provide the CAGE Code and the name of all predecessors that held a Federal contract or grant within the last three years. The data on immediate owner and direct subsidiaries of an entity will be available through FAPIIS, based on the data obtained from offerors in response to the FAR provision 52.204-17, Ownership or Control of Offeror, that requires this information for the CAGE code. The Federal Government received offers from approximately 413,800 unique vendors in FY 2011. Approximately 275,900 of these offers were from unique small businesses, which will be required to respond to the proposed provision. The rule requires approximately one submission per year, with an estimated average of .1 preparation hours per response. The response time will be less for most respondents, who will only be required to check a box. Only those respondents that check ``is'' will have to provide a minimal amount of information (CAGE Code and legal name of all predecessors that held a Federal contract or grant within the last three years). A mid-level professional skill would be required in some instances to know whether the entity is a successor, as defined in the rule. There are no exemptions from the rule for small entities, because the law does not provide for any such exemption. However, the final rule limits the review of predecessor entities to three years, and only requires information relating to the most recent predecessor, if any. DoD, GSA and NASA did not identify any significant alternatives that would reduce impact on small business and still accomplish the objectives of the statute and the polices. Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. V. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The rule contains information collection requirements. The Office of Management and Budget (OMB) has cleared this information collection requirement under OMB Control Number 9000-0189, titled: Identification of Predecessors. List of Subjects in 48 CFR Parts 1, 4, 9, 22, and 52 Government procurement. Dated: February 29, 2016. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 4, 9, 22, and 52 as set forth below: 0 1. The authority citation for 48 CFR parts 1, 4, 9, 22, and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 0 2. Amend section 1.106, in the table following the introductory text, by adding in numerical sequence, FAR segment ``52.204-20'' and its corresponding OMB Control No. ``9000-0189''. PART 4--ADMINISTRATIVE MATTERS 0 3. Amend section 4.1202 by redesignating paragraphs (a)(6) through (30) as paragraphs (a)(7) through (31), respectively, and adding paragraph (a)(6) to read as follows. 4.1202 Solicitation provision and contract clause. (a) * * * (6) 52.204-20, Predecessor of Offeror. * * * * * 0 4. Amend section 4.1804 by adding paragraph (d) to read as follows: 4.1804 Solicitation provisions and contract clause. * * * * * (d) Insert the provision at 52.204-20, Predecessor of Offeror, in all solicitations that include the provision at 52.204-16, Commercial and Government Entity Code Reporting. PART 9--CONTRACTOR QUALIFICATIONS 0 5. Amend section 9.104-6 by revising paragraphs (a) and (b) to read as follows: 9.104-6 Federal Awardee Performance and Integrity Information System. (a)(1) Before awarding a contract in excess of the simplified acquisition threshold, the contracting officer shall review the performance and integrity information available in the Federal Awardee Performance and Integrity Information System (FAPIIS), (available at www.ppirs.gov, then select FAPIIS), including FAPIIS information from the System for Award Management (SAM) Exclusions and the Past Performance Information Retrieval System (PPIRS). (2) In accordance with 41 U.S.C. 2313(d)(3), FAPIIS also identifies-- (i) An affiliate that is an immediate owner or subsidiary of the offeror, if any (see 52.204-17, Ownership or Control of Offeror); and (ii) All predecessors of the offeror that held a Federal contract or grant within the last three years (see 52.204-20, Predecessor of Offeror). (b)(1) When making a responsibility determination, the contracting officer shall consider all the information available through FAPIIS with regard to the offeror and any immediate owner, predecessor, or subsidiary identified for that offeror in FAPIIS, as well as other past performance information on the offeror (see subpart 42.15). (2) For evaluation of information available through FAPIIS relating to an affiliate of the offeror, see 9.104-3(c). (3) For source selection evaluations of past performance, see 15.305(a)(2). Contracting officers shall use sound judgment in determining the weight and relevance of the information contained in FAPIIS and how it relates to the present acquisition. (4) Since FAPIIS may contain information on any of the offeror's previous contracts and information covering a five-year period, some of that information may not be relevant to a determination of present responsibility, e.g., a prior administrative action such as debarment or suspension that has expired or otherwise been resolved, or [[Page 11991]] information relating to contracts for completely different products or services. (5) Because FAPIIS is a database that provides information about prime contractors, the contracting officer posts information required to be posted about a subcontractor, such as trafficking in persons violations, to the record of the prime contractor (see 42.1503(h)(1)(v)). The prime contractor has the opportunity to post in FAPIIS any mitigating factors. The contracting officer shall consider any mitigating factors posted in FAPIIS by the prime contractor, such as degree of compliance by the prime contractor with the terms of FAR clause 52.222-50. * * * * * 0 6. Amend section 9.105-1 by revising the introductory text of paragraph (c) to read as follows: 9.105-1 Obtaining information. * * * * * (c) In making the determination of responsibility, the contracting officer shall consider information available through FAPIIS (see 9.104- 6) with regard to the offeror and any immediate owner, predecessor, or subsidiary identified for that offeror in FAPIIS, including information that is linked to FAPIIS such as from SAM, and PPIRS, as well as any other relevant past performance information on the offeror (see 9.104- 1(c) and subpart 42.15). In addition, the contracting officer should use the following sources of information to support such determinations: * * * * * PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS 22.1006 [Amended] 0 7. Amend section 22.1006 by removing from paragraph (a)(2)(i)(C) ``52.204-8(c)(2)(iii) or (iv)'' and adding ``52.204-8(c)(2)'' in its place; removing from paragraph (e)(2)(i) ``52.204-8(c)(2)(iii)'' and adding ``52.204-8(c)(2)'' in its place; and removing from paragraph (e)(4)(i) ``52.204-8(c)(2)(iv)'' and adding ``52.204-8(c)(2)'' in its place. PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 8. Amend section 52.204-8 by-- 0 a. Revising the date of provision; 0 b. Redesignating paragraphs (c)(2)(ii) through (vii) as paragraphs (c)(2)(iii) through (viii), respectively; and 0 c. Adding paragraph (c)(2)(ii). The revision and addition read as follows: 52.204-8 Annual Representations and Certifications. * * * * * Annual Representations and Certifications (APR 2016) * * * * * (c) * * * (2) * * * ____ (ii) 52.204-20, Predecessor of Offeror. * * * * * 0 9. Add section 52.204-20 to read as follows: 52.204-20 Predecessor of Offeror. As prescribed in 4.1804(d), insert the following provision: Predecessor of Offeror (APR 2016) (a) Definitions. As used in this provision-- Commercial and Government Entity (CAGE) code means-- (1) An identifier assigned to entities located in the United States and its outlying areas by the Defense Logistics Agency (DLA) Contractor and Government Entity (CAGE) Branch to identify a commercial or government entity, or (2) An identifier assigned by a member of the North Atlantic Treaty Organization (NATO) or by NATO's Support Agency (NSPA) to entities located outside the United States and its outlying areas that DLA Contractor and Government Entity (CAGE) Branch records and maintains in the CAGE master file. This type of code is known as an NCAGE code. Predecessor means an entity that is replaced by a successor and includes any predecessors of the predecessor. Successor means an entity that has replaced a predecessor by acquiring the assets and carrying out the affairs of the predecessor under a new name (often through acquisition or merger). The term ``successor'' does not include new offices/divisions of the same company or a company that only changes its name. The extent of the responsibility of the successor for the liabilities of the predecessor may vary, depending on State law and specific circumstances. (b) The Offeror represents that it [square] is or [square] is not a successor to a predecessor that held a Federal contract or grant within the last three years. (c) If the Offeror has indicated ``is'' in paragraph (b) of this provision, enter the following information for all predecessors that held a Federal contract or grant within the last three years (if more than one predecessor, list in reverse chronological order): Predecessor CAGE code: ____ (or mark ``Unknown''). Predecessor legal name: ____. (Do not use a ``doing business as'' name). (End of provision) 0 10. Amend section 52.212-3 by-- 0 a. Revising the date of the provision; 0 b. Removing from the introductory text of the provision ``paragraphs (c) through (q)'' and adding ``paragraphs (c) through (r)'' in its place; 0 c. Adding to paragraph (a), in alphabetical order, the definitions ``Predecessor'' and ``Successor''; 0 d. Removing from the first undesignated paragraph following paragraph (b)(2) ``paragraphs (c) through (q)'' and adding ``paragraphs (c) through (r)'' in its place; and 0 e. Adding paragraph (r). The revision and additions read as follows: 52.212-3 Offeror Representations and Certifications--Commercial Items. * * * * * Offeror Representations and Certifications--Commerical Items (APR 2016) * * * * * (a) * * * Predecessor means an entity that is replaced by a successor and includes any predecessors of the predecessor. * * * * * Successor means an entity that has replaced a predecessor by acquiring the assets and carrying out the affairs of the predecessor under a new name (often through acquisition or merger). The term ``successor'' does not include new offices/divisions of the same company or a company that only changes its name. The extent of the responsibility of the successor for the liabilities of the predecessor may vary, depending on State law and specific circumstances. * * * * * (r) Predecessor of Offeror. (Applies in all solicitations that include the provision at 52.204-16, Commercial and Government Entity Code Reporting.) (1) The Offeror represents that it [square] is or [square] is not a successor to a predecessor that held a Federal contract or grant within the last three years. (2) If the Offeror has indicated ``is'' in paragraph (r)(1) of this provision, enter the following information for all predecessors that held a Federal contract or grant within the last three years (if more than one predecessor, list in reverse chronological order): Predecessor CAGE code: ____ (or mark ``Unknown''). Predecessor legal name: ____. (Do not use a ``doing business as'' name). * * * * * [FR Doc. 2016-04773 Filed 3-4-16; 8:45 am] BILLING CODE 6820-EP-P
![11988 Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Rules and Regulations
DEPARTMENT OF DEFENSE and National Aeronautics and Space DATES: For effective dates see the
Administration (NASA). separate documents, which follow.
GENERAL SERVICES
ADMINISTRATION ACTION: Summary presentation of final FOR FURTHER INFORMATION CONTACT: The
rules. analyst whose name appears in the table
NATIONAL AERONAUTICS AND below in relation to the FAR case.
SPACE ADMINISTRATION SUMMARY: This document summarizes Please cite FAC 2005–87 and the
the Federal Acquisition Regulation specific FAR case number. For
48 CFR Chapter 1 (FAR) rules agreed to by the Civilian information pertaining to status or
Agency Acquisition Council and the publication schedules, contact the
[Docket No. FAR 2016–0051, Sequence Defense Acquisition Regulations Regulatory Secretariat at 202–501–4755.
No. 1] Council (Councils) in this Federal
Acquisition Circular (FAC) 2005–87. A
Federal Acquisition Regulation;
Federal Acquisition Circular 2005–87; companion document, the Small Entity
Introduction Compliance Guide (SECG), follows this
FAC. The FAC, including the SECG, is
AGENCIES: Department of Defense (DoD), available via the Internet at http://
General Services Administration (GSA), www.regulations.gov.
RULES LISTED IN FAC 2005–87
Item Subject FAR case Analyst
I ................................. Information on Corporate Contractor Performance and Integrity ..................................... 2013–020 Davis
II ................................ Technical Amendments.
SUPPLEMENTARY INFORMATION: Dated: February 29, 2016. DEPARTMENT OF DEFENSE
Summaries for each FAR rule follow. William Clark,
For the actual revisions and/or Director, Office of Government-wide GENERAL SERVICES
amendments made by these rules, refer Acquisition Policy, Office of Acquisition ADMINISTRATION
to the specific item numbers and Policy, Office of Government-wide Policy.
subjects set forth in the documents NATIONAL AERONAUTICS AND
Federal Acquisition Circular (FAC) 2005– SPACE ADMINISTRATION
following these item summaries. FAC
87 is issued under the authority of the
2005–87 amends the FAR as follows: Secretary of Defense, the Administrator of 48 CFR Parts 1, 4, 9, 22, and 52
Item I—Information on Corporate General Services, and the Administrator for
Contractor Performance and Integrity the National Aeronautics and Space [FAC 2005–87; FAR Case 2013–020; Item
Administration. I; Docket 2013–0020, Sequence 1]
(FAR Case 2013–020)
Unless otherwise specified, all Federal
Acquisition Regulation (FAR) and other RIN 9000–AM74
This final rule amends the FAR to
implement a section of the National directive material contained in FAC 2005–87
Federal Acquisition Regulation;
Defense Authorization Act for Fiscal is effective March 7, 2016 except for item I
Information on Corporate Contractor
Year 2013 to include in the Federal which is effective April 6, 2016.
Performance and Integrity
Awardee Performance and Integrity Dated: February 25, 2016.
Information System, to the extent LeAntha D. Sumpter,
AGENCY: Department of Defense (DoD),
practicable, identification of any General Services Administration (GSA),
Acting Director, Defense Procurement and and National Aeronautics and Space
immediate owner or subsidiary, and all Acquisition Policy.
predecessors of an offeror that held a Administration (NASA).
Dated: February 26, 2016. ACTION: Final rule.
Federal contract or grant within the last
three years. The objective is to provide Jeffrey A. Koses,
Senior Procurement Executive/Deputy CAO, SUMMARY: DoD, GSA, and NASA are
a more comprehensive understanding of
Office of Acquisition Policy, U.S. General issuing a final rule amending the
the performance and integrity of the Federal Acquisition Regulation (FAR) to
corporation before awarding a Federal Services Administration.
implement section 852 of the National
contract. Dated: February 26, 2016. Defense Authorization Act (NDAA) for
This final rule will not have a William P. McNally, Fiscal Year (FY) 2013 to include in the
significant economic impact on a Assistant Administrator, Office of Federal Awardee Performance and
substantial number of small entities. Procurement, National Aeronautics and Integrity Information System (FAPIIS),
Space Administration. to the extent practicable, identification
Item II—Technical Amendments of any immediate owner or subsidiary,
[FR Doc. 2016–04772 Filed 3–4–16; 8:45 am]
Editorial changes are made at FAR and all predecessors of an offeror that
mstockstill on DSK4VPTVN1PROD with RULES3
BILLING CODE 6820–EP–P
4.1703(a)(1), 22.1904(b)(1), held a Federal contract or grant within
25.1102(d)(3), 36.607(b), 52.212–3(h), the last three years. The objective is to
provide a more comprehensive
52.212–3(p) and (q), and (p) and (q) of
understanding of the performance and
Alternate I, 52.212–5(c)(8), (e)(1)(xv),
integrity of the corporation before
(e)(1)(ii)(N) of Alternate II, and 52.213– awarding a Federal contract.
4(b)(1)(ix).
DATES: Effective: April 6, 2016.
VerDate Sep<11>2014 19:23 Mar 04, 2016 Jkt 238001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\07MRR3.SGM 07MRR3](https://thefederalregister.org/doc/81_FR_12032/page/1.svg)
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and benefits, of reducing costs, of provide for any such exemption. However, ■ 4. Amend section 4.1804 by adding
harmonizing rules, and of promoting the final rule limits the review of predecessor paragraph (d) to read as follows:
flexibility. This is not a significant entities to three years, and only requires
regulatory action and, therefore, was not information relating to the most recent 4.1804 Solicitation provisions and
predecessor, if any. contract clause.
subject to review under Section 6(b) of DoD, GSA and NASA did not identify any
E.O. 12866, Regulatory Planning and * * * * *
significant alternatives that would reduce (d) Insert the provision at 52.204–20,
Review, dated September 30, 1993. This impact on small business and still
rule is not a major rule under 5 U.S.C. Predecessor of Offeror, in all
accomplish the objectives of the statute and
804. the polices. solicitations that include the provision
at 52.204–16, Commercial and
IV. Regulatory Flexibility Act Interested parties may obtain a copy Government Entity Code Reporting.
DoD, GSA, and NASA do not expect of the FRFA from the Regulatory
this rule to have a significant economic Secretariat. The Regulatory Secretariat PART 9—CONTRACTOR
impact on a substantial number of small has submitted a copy of the FRFA to the QUALIFICATIONS
entities within the meaning of the Chief Counsel for Advocacy of the Small
Business Administration. ■ 5. Amend section 9.104–6 by revising
Regulatory Flexibility Act, 5 U.S.C. 601, paragraphs (a) and (b) to read as follows:
et seq., because the burden is minimal V. Paperwork Reduction Act
to provide the CAGE Code and the name 9.104–6 Federal Awardee Performance
The Paperwork Reduction Act (44 and Integrity Information System.
of all predecessors that held a Federal
U.S.C. chapter 35) applies. The rule
contract or grant within the last three (a)(1) Before awarding a contract in
contains information collection
years. However, a Final Regulatory excess of the simplified acquisition
requirements. The Office of
Flexibility Analysis has been performed threshold, the contracting officer shall
Management and Budget (OMB) has
and is summarized as follows: review the performance and integrity
cleared this information collection
This case implements section 852 of the information available in the Federal
requirement under OMB Control
NDAA for FY 2013 (Pub. L. 112–239). The Awardee Performance and Integrity
Number 9000–0189, titled:
objective of this rule is to provide acquisition Information System (FAPIIS), (available
Identification of Predecessors.
officials using the Federal Awardee at www.ppirs.gov, then select FAPIIS),
Performance and Integrity Information List of Subjects in 48 CFR Parts 1, 4, 9, including FAPIIS information from the
System (FAPIIS) a comprehensive 22, and 52 System for Award Management (SAM)
understanding of the performance and Exclusions and the Past Performance
integrity of the corporation in carrying out Government procurement.
Information Retrieval System (PPIRS).
Federal contracts. The legal basis for the rule Dated: February 29, 2016. (2) In accordance with 41 U.S.C.
is section 852 of the NDAA for FY 2013 (Pub. William Clark,
L. 112–239).
2313(d)(3), FAPIIS also identifies—
No comments were received from the Director, Office of Government-wide (i) An affiliate that is an immediate
public relative to the initial regulatory Acquisition Policy, Office of Acquisition owner or subsidiary of the offeror, if any
flexibility analysis. Policy, Office of Government-wide Policy. (see 52.204–17, Ownership or Control of
It is not expected that this rule will have Therefore, DoD, GSA, and NASA Offeror); and
a significant economic impact on a amend 48 CFR parts 1, 4, 9, 22, and 52 (ii) All predecessors of the offeror that
substantial number of small entities within as set forth below: held a Federal contract or grant within
the meaning of the Regulatory Flexibility Act, ■ 1. The authority citation for 48 CFR the last three years (see 52.204–20,
5 U.S.C. 601, et seq., because the burden is Predecessor of Offeror).
parts 1, 4, 9, 22, and 52 continues to
minimal to provide the CAGE Code and the (b)(1) When making a responsibility
name of all predecessors that held a Federal read as follows:
determination, the contracting officer
contract or grant within the last three years. Authority: 40 U.S.C. 121(c); 10 U.S.C. shall consider all the information
The data on immediate owner and direct chapter 137; and 51 U.S.C. 20113.
subsidiaries of an entity will be available available through FAPIIS with regard to
through FAPIIS, based on the data obtained PART 1—FEDERAL ACQUISITION the offeror and any immediate owner,
from offerors in response to the FAR REGULATIONS SYSTEM predecessor, or subsidiary identified for
provision 52.204–17, Ownership or Control that offeror in FAPIIS, as well as other
of Offeror, that requires this information for 1.106 [Amended] past performance information on the
the CAGE code. The Federal Government offeror (see subpart 42.15).
■ 2. Amend section 1.106, in the table
received offers from approximately 413,800 (2) For evaluation of information
unique vendors in FY 2011. Approximately following the introductory text, by
adding in numerical sequence, FAR available through FAPIIS relating to an
275,900 of these offers were from unique affiliate of the offeror, see 9.104–3(c).
small businesses, which will be required to segment ‘‘52.204–20’’ and its
(3) For source selection evaluations of
respond to the proposed provision. corresponding OMB Control No. ‘‘9000–
past performance, see 15.305(a)(2).
The rule requires approximately one 0189’’.
submission per year, with an estimated Contracting officers shall use sound
average of .1 preparation hours per response. PART 4—ADMINISTRATIVE MATTERS judgment in determining the weight and
The response time will be less for most relevance of the information contained
respondents, who will only be required to ■ 3. Amend section 4.1202 by in FAPIIS and how it relates to the
check a box. Only those respondents that redesignating paragraphs (a)(6) through present acquisition.
check ‘‘is’’ will have to provide a minimal (30) as paragraphs (a)(7) through (31), (4) Since FAPIIS may contain
amount of information (CAGE Code and legal respectively, and adding paragraph information on any of the offeror’s
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name of all predecessors that held a Federal previous contracts and information
(a)(6) to read as follows.
contract or grant within the last three years). covering a five-year period, some of that
A mid-level professional skill would be 4.1202 Solicitation provision and contract
required in some instances to know whether
information may not be relevant to a
clause. determination of present responsibility,
the entity is a successor, as defined in the
rule. (a) * * * e.g., a prior administrative action such
There are no exemptions from the rule for (6) 52.204–20, Predecessor of Offeror. as debarment or suspension that has
small entities, because the law does not * * * * * expired or otherwise been resolved, or
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![Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Rules and Regulations 11991
information relating to contracts for 52.204–8 Annual Representations and through (q)’’ and adding ‘‘paragraphs (c)
completely different products or Certifications. through (r)’’ in its place;
services. * * * * * ■ c. Adding to paragraph (a), in
(5) Because FAPIIS is a database that
Annual Representations and Certifications
alphabetical order, the definitions
provides information about prime
(APR 2016) ‘‘Predecessor’’ and ‘‘Successor’’;
contractors, the contracting officer posts
information required to be posted about * * * * * ■ d. Removing from the first
a subcontractor, such as trafficking in (c) * * * undesignated paragraph following
persons violations, to the record of the (2) * * * paragraph (b)(2) ‘‘paragraphs (c) through
prime contractor (see 42.1503(h)(1)(v)). llll (ii) 52.204–20, Predecessor of (q)’’ and adding ‘‘paragraphs (c) through
Offeror.
The prime contractor has the (r)’’ in its place; and
opportunity to post in FAPIIS any * * * * *
■ e. Adding paragraph (r).
mitigating factors. The contracting ■ 9. Add section 52.204–20 to read as
officer shall consider any mitigating follows: The revision and additions read as
factors posted in FAPIIS by the prime follows:
contractor, such as degree of compliance 52.204–20 Predecessor of Offeror.
52.212–3 Offeror Representations and
by the prime contractor with the terms As prescribed in 4.1804(d), insert the Certifications—Commercial Items.
of FAR clause 52.222–50. following provision:
* * * * *
* * * * * Predecessor of Offeror (APR 2016)
■ 6. Amend section 9.105–1 by revising Offeror Representations and Certifications—
(a) Definitions. As used in this provision—
the introductory text of paragraph (c) to Commerical Items (APR 2016)
Commercial and Government Entity
read as follows: (CAGE) code means— * * * * *
(1) An identifier assigned to entities (a) * * *
9.105–1 Obtaining information. located in the United States and its outlying Predecessor means an entity that is
* * * * * areas by the Defense Logistics Agency (DLA) replaced by a successor and includes any
(c) In making the determination of Contractor and Government Entity (CAGE) predecessors of the predecessor.
responsibility, the contracting officer Branch to identify a commercial or
government entity, or * * * * *
shall consider information available Successor means an entity that has
(2) An identifier assigned by a member of
through FAPIIS (see 9.104–6) with the North Atlantic Treaty Organization replaced a predecessor by acquiring the
regard to the offeror and any immediate (NATO) or by NATO’s Support Agency assets and carrying out the affairs of the
owner, predecessor, or subsidiary (NSPA) to entities located outside the United predecessor under a new name (often
identified for that offeror in FAPIIS, States and its outlying areas that DLA through acquisition or merger). The term
including information that is linked to Contractor and Government Entity (CAGE) ‘‘successor’’ does not include new offices/
FAPIIS such as from SAM, and PPIRS, Branch records and maintains in the CAGE divisions of the same company or a company
as well as any other relevant past master file. This type of code is known as an
that only changes its name. The extent of the
performance information on the offeror NCAGE code.
responsibility of the successor for the
(see 9.104–1(c) and subpart 42.15). In Predecessor means an entity that is
replaced by a successor and includes any liabilities of the predecessor may vary,
addition, the contracting officer should predecessors of the predecessor. depending on State law and specific
use the following sources of information Successor means an entity that has circumstances.
to support such determinations: replaced a predecessor by acquiring the * * * * *
* * * * * assets and carrying out the affairs of the (r) Predecessor of Offeror. (Applies in all
predecessor under a new name (often solicitations that include the provision at
PART 22—APPLICATION OF LABOR through acquisition or merger). The term
52.204–16, Commercial and Government
LAWS TO GOVERNMENT ‘‘successor’’ does not include new offices/
divisions of the same company or a company Entity Code Reporting.)
ACQUISITIONS (1) The Offeror represents that it b is or b
that only changes its name. The extent of the
22.1006 [Amended] responsibility of the successor for the is not a successor to a predecessor that held
liabilities of the predecessor may vary, a Federal contract or grant within the last
■ 7. Amend section 22.1006 by depending on State law and specific three years.
removing from paragraph (a)(2)(i)(C) circumstances. (2) If the Offeror has indicated ‘‘is’’ in
‘‘52.204–8(c)(2)(iii) or (iv)’’ and adding (b) The Offeror represents that it b is or b paragraph (r)(1) of this provision, enter the
‘‘52.204–8(c)(2)’’ in its place; removing is not a successor to a predecessor that held following information for all predecessors
from paragraph (e)(2)(i) ‘‘52.204– a Federal contract or grant within the last that held a Federal contract or grant within
8(c)(2)(iii)’’ and adding ‘‘52.204–8(c)(2)’’ three years. the last three years (if more than one
in its place; and removing from (c) If the Offeror has indicated ‘‘is’’ in
predecessor, list in reverse chronological
paragraph (e)(4)(i) ‘‘52.204–8(c)(2)(iv)’’ paragraph (b) of this provision, enter the
following information for all predecessors order):
and adding ‘‘52.204–8(c)(2)’’ in its Predecessor CAGE code: llll (or mark
that held a Federal contract or grant within
place. the last three years (if more than one ‘‘Unknown’’).
predecessor, list in reverse chronological Predecessor legal name: llll.
PART 52—SOLICITATION PROVISIONS order): (Do not use a ‘‘doing business as’’ name).
AND CONTRACT CLAUSES Predecessor CAGE code: llll (or mark * * * * *
‘‘Unknown’’).
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■ 8. Amend section 52.204–8 by— Predecessor legal name: llll. [FR Doc. 2016–04773 Filed 3–4–16; 8:45 am]
■ a. Revising the date of provision; (Do not use a ‘‘doing business as’’ name). BILLING CODE 6820–EP–P
■ b. Redesignating paragraphs (c)(2)(ii) (End of provision)
through (vii) as paragraphs (c)(2)(iii)
through (viii), respectively; and ■ 10. Amend section 52.212–3 by—
■ c. Adding paragraph (c)(2)(ii). ■ a. Revising the date of the provision;
The revision and addition read as ■ b. Removing from the introductory
follows: text of the provision ‘‘paragraphs (c)
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Document Created: 2018-02-02 15:07:30
Document Modified: 2018-02-02 15:07:30
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective: April 6, 2016. | |
| Contact | Ms. Cecelia Davis, Procurement Analyst, at 202-219-0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-87, FAR Case 2013- 020. | |
| FR Citation | 81 FR 11988 | |
| RIN Number | 9000-AM74 | |
| CFR Citation | 48
CFR
1 48 CFR 22 48 CFR 4 48 CFR 52 48 CFR 9 |
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