81 FR 3087 - Federal Acquisition Regulations: FAR Case 2014-004, Payment of Subcontractors
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION Federal Register Volume 81, Issue 12 (January 20, 2016)
GENERAL SERVICES ADMINISTRATION
Federal Register Volume 81, Issue 12 (January 20, 2016)
| Page Range | 3087-3093 | |
| FR Document | 2016-00950 |
[Federal Register Volume 81, Number 12 (Wednesday, January 20, 2016)] [Proposed Rules] [Pages 3087-3093] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-00950] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 19, 42, and 52 [FAR Case 2014-004; Docket No. 2014-0004; Sequence No. 1] RIN 9000-AM98 Federal Acquisition Regulations: FAR Case 2014-004, Payment of Subcontractors AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the Small Business Jobs Act of 2010. This statute requires contractors to notify the contracting officer in writing if the contractor pays a reduced price to a small business subcontractor, or if the contractor's payment to a small business contractor is more than 90 days past due. DATES: Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before March 21, 2016 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FAR Case 2014-004 by any of the following methods:Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ``FAR Case 2014-004''. Select the link ``Comment Now'' that corresponds with FAR Case 2014-004. Follow the instructions provided on the screen. Please include your name, company name (if any), and ``FAR Case 2014-004'' in all attached documents. Mail: General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW., Second floor, ATTN: Ms. Flowers, Washington, DC 20405. Instructions: Please submit comments only and cite FAR Case 2014- 004, Payment of Subcontractors in all correspondence related to this case. Comments received generally will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448 for clarification of content. Please cite FAR case 2014-004. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA are proposing to implement section 1334 of the Small Business Jobs Act of 2010 (Pub. L. 111-240) and the Small Business Administration's (SBA's) implementation of section 1334 with its final rule, Small Business Subcontracting, published in the Federal Register at 78 FR 42391, on July 16, 2013, and effective August 15, 2013. This statute requires the prime contractor to self-report to the contracting officer when the prime contractor makes late or reduced payments to small business subcontractors. In addition, the contracting officer is required to record the identity of contractors with a history of late or reduced payments to small business subcontractors in the Federal Awardee Performance and Integrity Information System (FAPIIS). The FAR is proposed to be amended as follows to implement the requirements of section 1334: FAR 19.701 is revised to add definitions for ``reduced payment'' and ``untimely payment.'' FAR 19.704(a)(12) and 52.219-9(d)(12) are added to require that the offeror will pay its small business subcontractors on time and in accordance with the terms and conditions of the subcontract, and notify the contracting officer when the prime contractor pays a reduced or an untimely payment to a small business subcontractor. FAR 42.1502(g) is revised to include in the past performance evaluation reduced or untimely payments reported to the contracting officer by the prime contractor in accordance with the clause at 52.242-XX, Payments to Small Business Subcontractors, that are determined by the contracting officer to be unjustified. FAR 42.1503(b)(2)(v) is revised by including ``reduced or untimely payments to small business subcontractors when a subcontracting plan is required in accordance with 19.702(a)'' to the list of ``Small business subcontracting'' past performance evaluation factors. FAR 42.1503(h)(1)(vi) is added to the list of ``other contractor performance information'' that will be reported to FAPIIS and considered by contracting officers in evaluating contractor past performance to include a contracting officer's determination that a contractor has a history of unjustified reduced or untimely payments to small business subcontractors. FAR table 42-2, ``Evaluation Ratings Definitions (for the Small Business Subcontracting Evaluation Factor, When 52.219-9 is Used)'' is revised to include the contracting officer's evaluation of a prime contractor's self-reported unjustified reduced or untimely payments (history of three or more) to small business subcontractors. FAR 42.1504 is added to require contracting officers to insert the clause at 52.242-XX, Payment to Small Business Subcontractors, in all solicitations and contracts containing the clause at 52.219-9, Small Business Subcontracting Plan. FAR clause 52.219-9, Small Business Subcontracting Plan, is revised to add definitions for ``reduced payment'' and ``untimely payment.'' FAR clause 52.242-XX, Payment to Small Business Subcontractors, is added [[Page 3088]] to FAR part 52 to require the contractor to provide a written notice to the contracting officer if it makes a payment to a small business subcontractor that is for less than the amount agreed upon in a subcontract in accordance with its terms and conditions for supplies and services for which the Government has paid the prime contractor, or if payment to a subcontractor that is more than 90 days past due under the terms and conditions of a subcontract for supplies and services for which the Government has paid the prime contractor. In accordance with the SBA final rule, this proposed rule would apply to prime contracts that require small business subcontracting plans. For the reasons explained in section II, below, the proposed rule would cover acquisitions for commercial items, including acquisitions for commercial-off-the-shelf (COTS) items. II. Determinations The FAR Council has made the following preliminary determinations with respect to the rule's application of section 1334 of the Small Business Jobs Act of 2010, entitled ``Payment of Subcontractors,'' to contracts for the acquisition of commercial items: A. Applicability to Contracts for the Acquisition of Commercial Items 41 U.S.C. 1906 governs the applicability of laws to the acquisition of commercial items (other than COTS items). This statute limits the applicability of laws to the acquisition of commercial items. However, section 1906 provides that the acquisition of commercial items will not be exempt from a provision of law if-- The law contains criminal or civil penalties; The law specifically refers to 41 U.S.C. 1906 and states that the law applies to the acquisition of commercial items; or The FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt the acquisition of commercial items from the provision of law. Section 1334 of the Small Business Jobs Act of 2010 is silent on the applicability of the requirements set forth above to contracts for commercial items and does not provide for criminal or civil penalties. Therefore, under 41 U.S.C. 1906, section 1334 does not apply to acquisitions for commercial items unless the FAR Council makes a written determination that such application is in the best interest of the Federal Government. In making its initial determination of whether application of section 1334 to commercial items is in the best interest of the Federal Government, the FAR Council considered the following factors: (i) The benefits of the policy in furthering Administration goals, (ii) the extent to which the benefits of the policy would be reduced if an exemption is provided for commercial items, and (iii) the burden on contractors if the policy is applied to acquisitions for commercial items. With respect to the first factor, this Administration has taken a number of steps to ensure that the government promptly and efficiently pays small businesses when they contract to provide goods and services to the government. These steps are part of the Administration's strong commitment to supporting small business growth and prosperity, as an engine to drive economic activity and job creation throughout the country. On September 14, 2011, the Office of Management and Budget (OMB) issued Memorandum M 11-32, titled: ``Accelerating Payments to Small Businesses for Goods and Services.'' That memorandum established ``the Executive Branch policy that, to the full extent permitted by law, agencies shall make their payments to small business contractors as soon as practicable, with the goal of making payments within 15 days'' of receipt of relevant documents. OMB explained that such acceleration helps to improve cash flow for small businesses, increases liquidity, unlocks capital for the purposes of investment and growth, and increases small business participation in Federal contracting. To further preserve and increase small business participation in all levels of federal contracting through improved cash flow, OMB broadened the policy to reach small business subcontractors. Memorandum M-12-16, ``Providing Prompt Payment to Small Business Subcontractors,'' established the Executive Branch policy that, to the full extent permitted by law, agencies shall take certain steps to accelerate payments to all prime contractors, in order to allow them to provide prompt payments to small business subcontractors. The policy was extended by OMB Memoranda M-13-15 and M-14-10. In 2014, the FAR Council finalized FAR changes to implement this policy and provide a clause (see FAR clause 52.232-40) to support the acceleration of payments to subcontractors. By instilling accountability for untimely payment to subcontractors, section 1334, SBA's implementing regulation, and this rule further the benefits and policies goals described above. Specifically, the proposed rule helps to create greater cash flow certainty, which is critical for small business subcontractors and reduces a potential barrier to their participation in federal contracting. With respect to the second factor (the impact of excluding commercial item acquisitions on the overall benefits of the underlying policy), the FAR Council believes based on an analysis of Fiscal Year 2014 Federal Procurement Data System (FPDS) data that less than one- third of spending on new contracts over $650,000 (i.e., the threshold for the applicability of this rule) are for commercial item acquisitions, so exclusion could have a material impact on these benefits. With respect to the third factor, burden on contractors selling commercial items, the initial analysis under the Paperwork Reduction Act (PRA) suggests that the total number of unique entities in Fiscal Year (FY) 2014 that are covered under this requirement (selling either commercial or non-commercial items) is 2,279 and the estimated reporting time per respondent is 2 hours. See the discussion on the PRA at Section VI, below. The FAR Council further estimates that the number of covered entities selling commercial items is not more than 40 percent of this stated total, and some of these entities may only sell COTs items, which as explained below are covered by the rule pursuant to the requirements of 41 U.S.C. 1907. Based on the above benefit and burden considerations, the FAR Council has made a preliminary determination that it is in the best interest of the government to apply section 1334 to commercial item acquisitions: covering commercial items helps to further an important ongoing Administration initiative to help ensure effective cash flow to small business subcontractors, which in turn helps to strengthen their participation in federal contracting, whereas exclusion of commercial item acquisitions would remove a significant amount of contracting activity from the accountability that this rule imposes on prime contractors to meet their payment commitments to their small business subcontractors. The limited information currently available to the FAR Council on reporting in accordance with the requirements of this rule suggests the burdens are not expected to be significant. Moreover, the relief provided by an exemption would be limited, since COTS are covered for the reason explained below. The Council welcomes public feedback on its initial analysis and preliminary determination to cover commercial items, including additional [[Page 3089]] insight on the need for and cost of retrofitting payment systems to meet the requirements in the rule. This feedback will be considered before the FAR Council finalizes its analysis of benefits and burdens and makes a final determination on the scope of the final rule. B. Applicability to Contracts for the Acquisition of COTS Items 41 U.S.C. 1907 governs the applicability of laws to the acquisition of COTS items. This statute limits the applicability of laws when agencies are acquiring COTS items. However, section 1907 provides similar requirements for a law to be applied to COTS items where the law contains criminal or civil penalties, refers to section 1907 and states the law applies to COTS, or where the Administrator for Federal Procurement Policy determines it would not be in the best interest of the Federal Government to exempt the acquisition of COTS items from the provision of law. Of particular relevance to the instant rulemaking, section 1907 further provides that the acquisition of COTS items will not be exempt from a provision of law if the law concerns-- Authorities or responsibilities under section 15 of the Small Business Act (15 U.S.C. 644); or Bid protest procedures developed under the authority of 31 U.S.C. 3551 et seq.; 10 U.S.C. 2305(e) and (f); or 41 U.S.C. 3706 and 3707. Section 1334 amends section 8(d) of the Small Business Act (15 U.S.C. 637(d)) to establish the requirement for a prime contractor for a covered contract to provide written notification to the contracting officer if the contractor pays a reduced price to a subcontractor for goods and services upon completion of the responsibilities of the subcontractor or the payment to a subcontractor is more than 90 days past due for goods or services provided for the covered contract for which the Federal agency has paid the prime contractor. Section 1334 requires a contracting officer of a covered contract to consider unjustified untimely or reduced payments to a small business subcontractor of the covered contract in the prime contractor's past performance evaluation. The statute defines a ``covered contract'' as a contract under which a prime contractor is required to develop a subcontracting plan. Pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)), as implemented at FAR 19.702(a), a small business subcontracting plan is required in acquisitions expected to exceed $700,000 that have subcontracting opportunities. Contracts for COTS items in amounts greater than $700,000 that have subcontracting opportunities meet the definition of a ``covered contract'' provided in the statute. The law furthers the Administration's goal of supporting small business and advances the interests of small business subcontractors by encouraging prime contractors to comply with their stated subcontracting objectives. Increased compliance with subcontracting objectives will expand opportunities for small business subcontractors. Exclusion of a large segment of Federal contracting, such as acquisitions for COTS items, will limit the full implementation of these subcontracting-related objectives. Further, one of the primary FAR clauses implementing Federal procurement policies governing subcontracting with small business, 52.219-9, Small Business Subcontracting Plan, are currently prescribed for use in solicitations for COTS items. This rule merely revises FAR clause 52.219-9 to implement the new requirements for a prime contractor for a covered contract to provide written notification to the contracting officer if the contractor pays a reduced price to a subcontractor for goods and services upon completion of the responsibilities of the subcontractor or the payment to a subcontractor is more than 90 days past due for goods or services provided for the covered contract for which the Federal agency has paid the prime contractor. A further example that the rule should apply to COTS items is FAR clause 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, which is required in all solicitations and contracts. Exclusion of acquisitions for COTS items from these requirements would create confusion among contractors and the Federal contracting workforce. The burden on contractors is not expected to increase significantly if the new requirements of section 1334 were applied to acquisitions for COTS items. Under the FAR clause 52.219-9, which is noted above, contractors are already required to commit to objectives for subcontracting with small business concerns under contracts for COTS items above the subcontracting plan threshold. The effort required for contractors to comply with the new requirements should be relatively small. The Council welcomes public feedback on its initial analysis and preliminary determination to cover COTS items, including additional insight on the need for and cost of retrofitting payment systems to meet the requirements in the rule. This feedback will be considered before the FAR Council finalizes its analysis of benefits and burdens and makes a final determination on the scope of the final rule. III. Executive Orders 12866 and 13563 Executive Orders 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). Executive Order 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, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This proposed rule is not a major rule under 5 U.S.C. 804. IV. Regulatory Flexibility Act DoD, GSA, and NASA expect that this proposed rule may 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.. Therefore, an Initial Regulatory Flexibility Analysis (IRFA) has been prepared consistent with 5 U.S.C. 603 and is summarized as follows: Section 1334 of the Small Business Jobs Act of 2010 (Public Law 111-240) and the Small Business Administration's final rule, Small Business Subcontracting, published in the Federal Register at 78 FR 42391, on July 16, 2013, require that the prime contractor self- report when the prime contractor makes reduced or untimely payments to small business subcontractors. Section 1334 also requires the contracting officer to record the identity of contractors with a history of unjustified reduced or untimely payments in FAPIIS. This proposed rule implements the self-reporting requirements of section 1334 by amending FAR 42.1504 to require contracting officers to include FAR clause 52.242-XX, Payments to Small Business Subcontractors, in all solicitations and contracts containing the clause at 52.219-9, Small Business Subcontracting Plan. The new FAR clause requires prime contractors to notify the contracting officer of reduced or untimely payments to small business subcontractors. The proposed rule also amends FAR 42.1503(h) to require contracting officers to report to FAPIIS a contractor that has a history of three or more reduced or untimely payments to small business subcontractors within a 12-month period under a single contract that are unjustified. Table 42-2 is also amended to include unjustified reduced or untimely payments to small business [[Page 3090]] subcontractors as part of the definition of ratings for the ``small business subcontracting'' past performance evaluation factors. The proposed rule would apply to payments made to small businesses that are first-tier subcontractors to prime government contractors. There will be no burden on small businesses, as small businesses do not have subcontracting plans. This regulation will benefit small business subcontractors by encouraging large business prime contractors to pay small business subcontractors in a timely manner and the agreed upon contractual price. The rule does not duplicate, overlap, or conflict with any other Federal rules. The specifics of the statutory requirement and the SBA final rule do not allow for alternative implementation strategies. The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2014-004) in correspondence. V. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The proposed rule contains information collection requirements. OMB has cleared this information collection requirement under OMB Control Number 9000-XXXX, titled: Payments to Small Business Subcontractors. FPDS for Fiscal Year (FY) 2014 lists 794 new commercial item contracts over $650,000 where the size determination was other than small and a subcontracting plan was required. FPDS for FY 2014 also lists 1,485 new non-commercial item contracts over $650,000 where the size determination was other than small and a subcontracting plan was required. It is estimated that no more than twenty percent of contractors with new commercial and non-commercial contracts where the size determination was other than small and where a subcontracting plan was required would have to notify the contracting officer that the prime contractor paid a reduced or an untimely payment to a small business subcontractor. It is also estimated that the average time required for a contractor to prepare the information for this collection is two hours. It is estimated also that the responses per respondent would be one. The annual reporting burden is estimated as follows: Respondents: 456. Responses per respondent: 1. Total annual responses: 456. Preparation hours per response: 2. Total response burden hours: 912. List of Subject in 48 CFR Parts 19, 42 and 52 Government procurement. Dated: January 11, 2016. William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Therefore, the DoD, GSA, and NASA propose amending 48 CFR parts 19, 42, and 52 as set forth below: 0 1. The authority citation for 48 CFR parts 19, 42, 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 19--SMALL BUSINESS PROGRAMS 0 2. Amend section 19.701 by adding, in alphabetical order, the definitions ``Reduced payment'' and ``Untimely payment'' to read as follows: 19.701 Definitions. * * * * * Reduced payment means a payment that is for less than the amount agreed upon in a subcontract in accordance with its terms and conditions, for supplies and services for which the Government has paid the prime contractor. * * * * * Untimely payment means a payment to a subcontractor that is more than 90 days past due under the terms and conditions of a subcontract, for supplies and services for which the Government has paid the prime contractor. 0 3. Amend section 19.704 by removing the period from the end of paragraph (a)(11)and adding ''; and'' in its place; and adding paragraph (a)(12) to read as follows: 19.704 Subcontracting plan requirements. (a) * * * (12) Assurances that the offeror will pay its small business subcontractors on time and in accordance with the terms and conditions of the subcontract, and notify the contracting officer when the prime contractor pays a reduced or an untimely payment to a small business subcontractor. * * * * * PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES 0 4. Amend section 42.1502 by revising paragraph (g) to read as follows: 42.1502 Policy. * * * * * (g) Past performance evaluations shall include an assessment of the contractor's-- (1) Performance against, and efforts to achieve, the goals identified in the small business subcontracting plan when the contract includes the clause at 52.219-9, Small Business Subcontracting Plan; and (2) Reduced or untimely payments (see 19.701) determined by the Contracting Officer to be unjustified to small business subcontractors. (i) The contracting officer shall consider and evaluate a contractor's written explanation for a reduced or an untimely payment when determining whether the reduced or untimely payment is justified. (ii) The contracting officer determines that a history of unjustified reduced or untimely payments has occurred when the contractor has reported three or more occasions of unjustified reduced or untimely payments under a single contract within a 12 month period (see 42.1503(h)(1)(vi) and the evaluation factors in Table 42-2). * * * * * 0 5. Amend section 42.1503 by-- 0 a. Revising paragraph (b)(2)(v); 0 b. Removing from paragraph (b)(2)(vi) the phrase ``late or nonpayment to subcontractors,''; 0 c. Revising the introductory text of paragraph (h)(1); 0 d. Removing from paragraph (h)(1)(iv) ``; or'' and adding a semicolon in its place; 0 e. Removing the period from the end of paragraph (h)(1)(v) and adding ``; or'' in its place; 0 f. Adding paragraph (h)(1)(vi); and 0 g. Revising table 42-2. The revisions and additions reads as follows: 42.1503 Procedures. * * * * * (b) * * * (2) * * * (v) Small business subcontracting, including reduced or untimely payments to small business subcontractors when 19.702(a) requires [[Page 3091]] a subcontracting plan (as applicable, see Table 42-2). * * * * * (h) * * * (1) Agencies shall ensure information is accurately reported in the FAPIIS or any successor thereto module of CPARS within 3 calendar days after a contracting officer-- * * * * * (vi) Determines that a contractor has a history of three or more unjustified reduced or untimely payments to small business subcontractors within a 12 month period (see 42.1502(g)(2)). * * * * * Table 42-2--Evaluation Ratings Definitions [For the Small Business Subcontracting Evaluation Factor, when 52.219-9 is used] ------------------------------------------------------------------------ Rating Definition Note ------------------------------------------------------------------------ (a) Exceptional............. Exceeded all To justify an statutory goals or Exceptional rating, goals as identify multiple negotiated. Had significant events exceptional success and state how they with initiatives to were a benefit to assist, promote, small business and utilize small utilization. A business (SB), singular benefit, small disadvantaged however, could be business (SDB), of such magnitude women-owned small that it constitutes business (WOSB), an Exceptional HUBZone small rating. Small business, veteran- businesses should owned small be given meaningful business (VOSB), and innovative work and service directly related to disabled veteran the contract, and owned small opportunities business (SDVOSB). should not be Complied with FAR limited to indirect 52.219-8, work such as Utilization of cleaning offices, Small Business supplies, Concerns. Exceeded landscaping, etc. any other small Also, there should business have been no participation significant requirements weaknesses incorporated in the identified. contract/order, including the use of small businesses in mission critical aspects of the program. Went above and beyond the required elements of the subcontracting plan and other small business requirements of the contract/order. Completed and submitted Individual Subcontract Reports and/or Summary Subcontract Reports in an accurate and timely manner. Did not have a history of three or more unjustified reduced or untimely payments to small business subcontractors within a 12 month period. (b) Very Good............... Met all of the To justify a Very statutory goals or Good rating, goals as identify a negotiated. Had significant event significant success and state how it with initiatives to was a benefit to assist, promote and small business utilize SB, SDB, utilization. Small WOSB, HUBZone, businesses should VOSB, and SDVOSB. be given meaningful Complied with FAR and innovative 52.219-8, opportunities to Utilization of participate as Small Business subcontractors for Concerns. Met or work directly exceeded any other related to the small business contract, and participation opportunities requirements should not be incorporated in the limited to indirect contract/order, work such as including the use cleaning offices, of small businesses supplies, in mission critical landscaping, etc. aspects of the There should be no program. Endeavored significant to go above and weaknesses beyond the required identified. elements of the subcontracting plan. Completed and submitted Individual Subcontract Reports and/or Summary Subcontract Reports in an accurate and timely manner. Did not have a history of three or more unjustified reduced or untimely payments to small business subcontractors within a 12 month period. (c) Satisfactory............ Demonstrated a good To justify a faith effort to Satisfactory meet all of the rating, there negotiated should have been subcontracting only minor goals in the problems, or major various socio- problems the economic categories contractor has for the current addressed or taken period. Complied corrective action. with FAR 52.219-8, There should have Utilization of been no significant Small Business weaknesses Concerns. Met any identified. A other small fundamental business principle of participation assigning ratings requirements is that contractors included in the will not be contract/order. assessed a rating Fulfilled the lower than requirements of the Satisfactory solely subcontracting plan for not performing included in the beyond the contract/order. requirements of the Completed and contract/order. submitted Individual Subcontract Reports and/or Summary Subcontract Reports in an accurate and timely manner. Did not have a history of three or more unjustified reduced or untimely payments to small business subcontractors within a 12 month period. [[Page 3092]] (d) Marginal................ Deficient in meeting To justify Marginal key subcontracting performance, plan elements. identify a Deficient in significant event complying with FAR that the contractor 52.219-8, had trouble Utilization of overcoming and how Small Business it impacted small Concerns, and any business other small utilization. A business Marginal rating participation should be supported requirements in the by referencing the contract/order. Did actions taken by not submit the Government that Individual notified the Subcontract Reports contractor of the and/or Summary contractual Subcontract Reports deficiency. in an accurate or timely manner. Failed to satisfy one or more requirements of a corrective action plan currently in place; however, does show an interest in bringing performance to a satisfactory level and has demonstrated a commitment to apply the necessary resources to do so. Required a corrective action plan. Did not have a history of three or more unjustified reduced or untimely payments to small business subcontractors within a 12 month period. (e) Unsatisfactory.......... Noncompliant with To justify an FAR 52.219-8 and Unsatisfactory 52.219-9, and any rating, identify other small multiple business significant events participation that the contractor requirements in the had trouble contract/order. Did overcoming and not submit state how it Individual impacted small Subcontract Reports business and/or Summary utilization. A Subcontract Reports singular problem, in an accurate or however, could be timely manner. of such serious Showed little magnitude that it interest in alone constitutes bringing an Unsatisfactory performance to a rating. An satisfactory level Unsatisfactory or is generally rating should be uncooperative. supported by Required a referencing the corrective action actions taken by plan. Had a history the Government to of three or more notify the unjustified reduced contractor of the or untimely deficiencies. When payments to small an Unsatisfactory business rating is subcontractors justified, the within a 12 month contracting officer period. must consider whether the contractor made a good faith effort to comply with the requirements of the subcontracting plan required by FAR 52.219-9 and follow the procedures outlined in FAR 52.219-16, Liquidated Damages- Subcontracting Plan. ------------------------------------------------------------------------ Note 1: Plus or minus signs may be used to indicate an improving (+) or worsening (-) trend insufficient to change the evaluation status. Note 2: N/A (not applicable) should be used if the ratings are not going to be applied to a particular area for evaluation. 0 6. Add section 42.1504 to Subpart 42.15--CONTRACTOR PERFORMANCE INFORMATION to read as follows: 42.1504 Contract clause. Insert the clause at 52.242-XX, Payments to Small Business Subcontractors, in all solicitations and contracts containing the clause at 52.219-9, Small Business Subcontracting Plan. PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 7. Amend section 52.212-5 by revising the date of the clause and paragraph (b)(17)(i) to read as follows: 52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Items. * * * * * Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Items (Date) * * * * * (b) * * * __(17)(i) 52.219-9, Small Business Subcontracting Plan (DATE) (15 U.S.C. 637(d)(4)). 0 8. Amend section 52.219-9 by-- 0 a. Revising the date of the clause; 0 b. Adding to paragraph (b), in alphabetical order, the definitions ``Reduced payment'' and ``Untimely payment''; and 0 c. Adding paragraph (d)(12). The revisions and additions read as follows: 52.219-9 Small Business Subcontracting Plan. * * * * * Small Business Subcontracting Plan (Date) * * * * * (b) * * * Reduced payment means a payment that is for less than the amount agreed upon in a subcontract in accordance with its terms and conditions, for supplies and services for which the Government has paid the prime contractor. * * * * * Untimely payment means a payment to a subcontractor that is more than 90 days past due under the terms and conditions of a subcontract, for supplies and services for which the Government has paid the prime contractor. * * * * * (d) * * * (12) The offeror shall provide assurances that the offeror will pay its small business subcontractors on time, make payments in accordance with the terms and conditions of the underlying subcontract, and notify the contracting officer when the prime contractor makes either a reduced or an untimely payment to a small business subcontractor (see 52.242-XX). * * * * * 0 9. Add section 52.242-XX to read as follows: 52.242-XX Payments to Small Business Subcontractors As prescribed in 42.1504, insert the following clause: Payments to Small Business Subcontractors (Date) (a) Definitions. Reduced payment means a payment that is for less than the amount agreed upon in a subcontract in accordance with its terms and conditions, for supplies and services for which the Government has paid the prime contractor. Untimely payment means a payment to a subcontractor that is more than 90 days past due under the terms and conditions of a subcontract, for supplies [[Page 3093]] and services for which the Government has paid the prime contractor. (b) Notice. The Contractor shall notify the Contracting Officer in writing if-- (1) A small business subcontractor is entitled to payment under the terms and conditions of the subcontract; and (2) The Prime contractor makes a payment that is either reduced or untimely to the small business subcontractor, or if the Contractor failed to make a payment which is now untimely. (c) Content of Notice. The Contractor shall include the reason(s) for making the reduced or untimely payment in any notice required under paragraph (b). (End of clause) [FR Doc. 2016-00950 Filed 1-19-16; 8:45 am] BILLING CODE 6820-EP-P
![Federal Register / Vol. 81, No. 12 / Wednesday, January 20, 2016 / Proposed Rules 3087
Synopsis DATES: Interested parties should submit of late or reduced payments to small
In Section IV.B of the Further Notice written comments to the Regulatory business subcontractors in the Federal
of Proposed Rule Making (FNPRM) Secretariat at one of the addresses Awardee Performance and Integrity
accompanying the Data Collection shown below on or before March 21, Information System (FAPIIS).
Order, adopted on December 11, 2012, 2016 to be considered in the The FAR is proposed to be amended
the Commission sought comment on formulation of a final rule. as follows to implement the
possible changes to its rules for the ADDRESSES: Submit comments requirements of section 1334:
business data services. The Commission identified by FAR Case 2014–004 by any FAR 19.701 is revised to add
set the comment deadlines on this of the following methods: definitions for ‘‘reduced payment’’ and
portion of the Special Access FNPRM, • Regulations.gov: http:// ‘‘untimely payment.’’
www.regulations.gov. Submit comments FAR 19.704(a)(12) and 52.219–
78 FR 2600, several months beyond the
via the Federal eRulemaking portal by 9(d)(12) are added to require that the
document’s release date to allow
searching for ‘‘FAR Case 2014–004’’. offeror will pay its small business
interested parties opportunity to review
the data and information collected Select the link ‘‘Comment Now’’ that subcontractors on time and in
before filing comments. The Bureau has corresponds with FAR Case 2014–004. accordance with the terms and
extended these deadlines, upon request Follow the instructions provided on the conditions of the subcontract, and notify
and in consideration of oppositions screen. Please include your name, the contracting officer when the prime
filed in response to the request for company name (if any), and ‘‘FAR Case contractor pays a reduced or an
extensions of time, to allow interested 2014–004’’ in all attached documents. untimely payment to a small business
parties adequate time to access and • Mail: General Services subcontractor.
Administration, Regulatory Secretariat FAR 42.1502(g) is revised to include
review the data and information
collected. Accordingly, the deadline for Division (MVCB), 1800 F Street NW., in the past performance evaluation
filing comments is extended to January Second floor, ATTN: Ms. Flowers, reduced or untimely payments reported
22, 2016, and the deadline for reply Washington, DC 20405. to the contracting officer by the prime
comments is extended to February 19, Instructions: Please submit comments contractor in accordance with the clause
2016. only and cite FAR Case 2014–004, at 52.242–XX, Payments to Small
Payment of Subcontractors in all Business Subcontractors, that are
Federal Communications Commission. determined by the contracting officer to
Pamela Arluk,
correspondence related to this case.
Comments received generally will be be unjustified.
Chief, Pricing Policy Division. FAR 42.1503(b)(2)(v) is revised by
posted without change to http://
[FR Doc. 2016–01082 Filed 1–19–16; 8:45 am]
www.regulations.gov, including any including ‘‘reduced or untimely
BILLING CODE 6712–01–P
personal and/or business confidential payments to small business
information provided. To confirm subcontractors when a subcontracting
receipt of your comment(s), please plan is required in accordance with
DEPARTMENT OF DEFENSE check www.regulations.gov, 19.702(a)’’ to the list of ‘‘Small business
approximately two to three days after subcontracting’’ past performance
GENERAL SERVICES evaluation factors.
submission to verify posting (except
ADMINISTRATION FAR 42.1503(h)(1)(vi) is added to the
allow 30 days for posting of comments
list of ‘‘other contractor performance
submitted by mail).
NATIONAL AERONAUTICS AND information’’ that will be reported to
SPACE ADMINISTRATION FOR FURTHER INFORMATION CONTACT: Mr. FAPIIS and considered by contracting
Curtis E. Glover, Sr., Procurement officers in evaluating contractor past
48 CFR Parts 19, 42, and 52 Analyst, at 202–501–1448 for performance to include a contracting
clarification of content. Please cite FAR officer’s determination that a contractor
[FAR Case 2014–004; Docket No. 2014– case 2014–004. For information
0004; Sequence No. 1] has a history of unjustified reduced or
pertaining to status or publication untimely payments to small business
RIN 9000–AM98 schedules, contact the Regulatory subcontractors.
Secretariat at 202–501–4755. FAR table 42–2, ‘‘Evaluation Ratings
Federal Acquisition Regulations: FAR SUPPLEMENTARY INFORMATION: Definitions (for the Small Business
Case 2014–004, Payment of Subcontracting Evaluation Factor, When
Subcontractors I. Background
52.219–9 is Used)’’ is revised to include
AGENCY: Department of Defense (DoD), DoD, GSA, and NASA are proposing the contracting officer’s evaluation of a
General Services Administration (GSA), to implement section 1334 of the Small prime contractor’s self-reported
and National Aeronautics and Space Business Jobs Act of 2010 (Pub. L. 111– unjustified reduced or untimely
Administration (NASA). 240) and the Small Business payments (history of three or more) to
ACTION: Proposed rule.
Administration’s (SBA’s) small business subcontractors.
implementation of section 1334 with its FAR 42.1504 is added to require
SUMMARY: DoD, GSA, and NASA are final rule, Small Business contracting officers to insert the clause
proposing to amend the Federal Subcontracting, published in the at 52.242–XX, Payment to Small
Acquisition Regulation (FAR) to Federal Register at 78 FR 42391, on July Business Subcontractors, in all
implement a section of the Small 16, 2013, and effective August 15, 2013. solicitations and contracts containing
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Business Jobs Act of 2010. This statute This statute requires the prime the clause at 52.219–9, Small Business
requires contractors to notify the contractor to self-report to the Subcontracting Plan.
contracting officer in writing if the contracting officer when the prime FAR clause 52.219–9, Small Business
contractor pays a reduced price to a contractor makes late or reduced Subcontracting Plan, is revised to add
small business subcontractor, or if the payments to small business definitions for ‘‘reduced payment’’ and
contractor’s payment to a small business subcontractors. In addition, the ‘‘untimely payment.’’
contractor is more than 90 days past contracting officer is required to record FAR clause 52.242–XX, Payment to
due. the identity of contractors with a history Small Business Subcontractors, is added
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a subcontracting plan (as applicable, see any successor thereto module of CPARS reduced or untimely payments to small
Table 42–2). within 3 calendar days after a business subcontractors within a 12
* * * * * contracting officer— month period (see 42.1502(g)(2)).
(h) * * * * * * * * * * * * *
(1) Agencies shall ensure information (vi) Determines that a contractor has
is accurately reported in the FAPIIS or a history of three or more unjustified
TABLE 42–2—EVALUATION RATINGS DEFINITIONS
[For the Small Business Subcontracting Evaluation Factor, when 52.219–9 is used]
Rating Definition Note
(a) Exceptional ..................... Exceeded all statutory goals or goals as negotiated. To justify an Exceptional rating, identify multiple signifi-
Had exceptional success with initiatives to assist, cant events and state how they were a benefit to
promote, and utilize small business (SB), small dis- small business utilization. A singular benefit, how-
advantaged business (SDB), women-owned small ever, could be of such magnitude that it constitutes
business (WOSB), HUBZone small business, vet- an Exceptional rating. Small businesses should be
eran-owned small business (VOSB), and service dis- given meaningful and innovative work directly related
abled veteran owned small business (SDVOSB). to the contract, and opportunities should not be lim-
Complied with FAR 52.219–8, Utilization of Small ited to indirect work such as cleaning offices, sup-
Business Concerns. Exceeded any other small busi- plies, landscaping, etc. Also, there should have been
ness participation requirements incorporated in the no significant weaknesses identified.
contract/order, including the use of small businesses
in mission critical aspects of the program. Went
above and beyond the required elements of the sub-
contracting plan and other small business require-
ments of the contract/order. Completed and sub-
mitted Individual Subcontract Reports and/or Sum-
mary Subcontract Reports in an accurate and timely
manner. Did not have a history of three or more un-
justified reduced or untimely payments to small busi-
ness subcontractors within a 12 month period.
(b) Very Good ...................... Met all of the statutory goals or goals as negotiated. To justify a Very Good rating, identify a significant
Had significant success with initiatives to assist, pro- event and state how it was a benefit to small busi-
mote and utilize SB, SDB, WOSB, HUBZone, VOSB, ness utilization. Small businesses should be given
and SDVOSB. Complied with FAR 52.219–8, Utiliza- meaningful and innovative opportunities to participate
tion of Small Business Concerns. Met or exceeded as subcontractors for work directly related to the con-
any other small business participation requirements tract, and opportunities should not be limited to indi-
incorporated in the contract/order, including the use rect work such as cleaning offices, supplies, land-
of small businesses in mission critical aspects of the scaping, etc. There should be no significant weak-
program. Endeavored to go above and beyond the nesses identified.
required elements of the subcontracting plan. Com-
pleted and submitted Individual Subcontract Reports
and/or Summary Subcontract Reports in an accurate
and timely manner. Did not have a history of three or
more unjustified reduced or untimely payments to
small business subcontractors within a 12 month pe-
riod.
(c) Satisfactory ..................... Demonstrated a good faith effort to meet all of the ne- To justify a Satisfactory rating, there should have been
gotiated subcontracting goals in the various socio- only minor problems, or major problems the con-
economic categories for the current period. Complied tractor has addressed or taken corrective action.
with FAR 52.219–8, Utilization of Small Business There should have been no significant weaknesses
Concerns. Met any other small business participation identified. A fundamental principle of assigning rat-
requirements included in the contract/order. Fulfilled ings is that contractors will not be assessed a rating
the requirements of the subcontracting plan included lower than Satisfactory solely for not performing be-
in the contract/order. Completed and submitted Indi- yond the requirements of the contract/order.
vidual Subcontract Reports and/or Summary Sub-
contract Reports in an accurate and timely manner.
Did not have a history of three or more unjustified re-
duced or untimely payments to small business sub-
contractors within a 12 month period.
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![3092 Federal Register / Vol. 81, No. 12 / Wednesday, January 20, 2016 / Proposed Rules
TABLE 42–2—EVALUATION RATINGS DEFINITIONS—Continued
[For the Small Business Subcontracting Evaluation Factor, when 52.219–9 is used]
Rating Definition Note
(d) Marginal .......................... Deficient in meeting key subcontracting plan elements. To justify Marginal performance, identify a significant
Deficient in complying with FAR 52.219–8, Utilization event that the contractor had trouble overcoming and
of Small Business Concerns, and any other small how it impacted small business utilization. A Marginal
business participation requirements in the contract/ rating should be supported by referencing the actions
order. Did not submit Individual Subcontract Reports taken by the Government that notified the contractor
and/or Summary Subcontract Reports in an accurate of the contractual deficiency.
or timely manner. Failed to satisfy one or more re-
quirements of a corrective action plan currently in
place; however, does show an interest in bringing
performance to a satisfactory level and has dem-
onstrated a commitment to apply the necessary re-
sources to do so. Required a corrective action plan.
Did not have a history of three or more unjustified re-
duced or untimely payments to small business sub-
contractors within a 12 month period.
(e) Unsatisfactory ................. Noncompliant with FAR 52.219–8 and 52.219–9, and To justify an Unsatisfactory rating, identify multiple sig-
any other small business participation requirements nificant events that the contractor had trouble over-
in the contract/order. Did not submit Individual Sub- coming and state how it impacted small business uti-
contract Reports and/or Summary Subcontract Re- lization. A singular problem, however, could be of
ports in an accurate or timely manner. Showed little such serious magnitude that it alone constitutes an
interest in bringing performance to a satisfactory level Unsatisfactory rating. An Unsatisfactory rating should
or is generally uncooperative. Required a corrective be supported by referencing the actions taken by the
action plan. Had a history of three or more unjustified Government to notify the contractor of the defi-
reduced or untimely payments to small business sub- ciencies. When an Unsatisfactory rating is justified,
contractors within a 12 month period. the contracting officer must consider whether the
contractor made a good faith effort to comply with the
requirements of the subcontracting plan required by
FAR 52.219–9 and follow the procedures outlined in
FAR 52.219–16, Liquidated Damages-Subcontracting
Plan.
Note 1: Plus or minus signs may be used to indicate an improving (+) or worsening (¥) trend insufficient to change the evaluation status.
Note 2: N/A (not applicable) should be used if the ratings are not going to be applied to a particular area for evaluation.
■ 6. Add section 42.1504 to Subpart ■ a. Revising the date of the clause; (12) The offeror shall provide
42.15—CONTRACTOR PERFORMANCE ■ b. Adding to paragraph (b), in assurances that the offeror will pay its
INFORMATION to read as follows: alphabetical order, the definitions small business subcontractors on time,
‘‘Reduced payment’’ and ‘‘Untimely make payments in accordance with the
42.1504 Contract clause.
payment’’; and terms and conditions of the underlying
Insert the clause at 52.242–XX, ■ c. Adding paragraph (d)(12). subcontract, and notify the contracting
Payments to Small Business The revisions and additions read as officer when the prime contractor makes
Subcontractors, in all solicitations and follows: either a reduced or an untimely
contracts containing the clause at payment to a small business
52.219–9, Small Business 52.219–9 Small Business Subcontracting
Plan.
subcontractor (see 52.242–XX).
Subcontracting Plan.
* * * * * * * * * *
PART 52—SOLICITATION PROVISIONS ■ 9. Add section 52.242–XX to read as
Small Business Subcontracting Plan
AND CONTRACT CLAUSES (Date) follows:
■ 7. Amend section 52.212–5 by * * * * * 52.242–XX Payments to Small Business
revising the date of the clause and (b) * * * Subcontractors
paragraph (b)(17)(i) to read as follows: Reduced payment means a payment As prescribed in 42.1504, insert the
that is for less than the amount agreed following clause:
52.212–5 Contract Terms and Conditions upon in a subcontract in accordance
Required to Implement Statutes or
Payments to Small Business
with its terms and conditions, for Subcontractors (Date)
Executive Orders-Commercial Items.
supplies and services for which the (a) Definitions.
* * * * * Government has paid the prime Reduced payment means a payment
Contract Terms and Conditions contractor. that is for less than the amount agreed
Required to Implement Statutes or * * * * * upon in a subcontract in accordance
Executive Orders-Commercial Items Untimely payment means a payment with its terms and conditions, for
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(Date) to a subcontractor that is more than 90 supplies and services for which the
* * * * * days past due under the terms and Government has paid the prime
(b) * * * conditions of a subcontract, for supplies contractor.
__(17)(i) 52.219–9, Small Business and services for which the Government Untimely payment means a payment
Subcontracting Plan (DATE) (15 U.S.C. has paid the prime contractor. to a subcontractor that is more than 90
637(d)(4)). * * * * * days past due under the terms and
■ 8. Amend section 52.219–9 by— (d) * * * conditions of a subcontract, for supplies
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![Federal Register / Vol. 81, No. 12 / Wednesday, January 20, 2016 / Proposed Rules 3093
and services for which the Government (2) The Prime contractor makes a (c) Content of Notice. The Contractor
has paid the prime contractor. payment that is either reduced or shall include the reason(s) for making
(b) Notice. The Contractor shall notify untimely to the small business the reduced or untimely payment in any
the Contracting Officer in writing if— subcontractor, or if the Contractor failed notice required under paragraph (b).
(1) A small business subcontractor is to make a payment which is now (End of clause)
entitled to payment under the terms and untimely. [FR Doc. 2016–00950 Filed 1–19–16; 8:45 am]
conditions of the subcontract; and BILLING CODE 6820–EP–P
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Document Created: 2016-01-19 23:43:42
Document Modified: 2016-01-19 23:43:42
| 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 | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Interested parties should submit written comments to the | |
| Contact | Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448 for clarification of content. Please cite FAR case 2014-004. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. | |
| FR Citation | 81 FR 3087 | |
| RIN Number | 9000-AM98 | |
| CFR Citation | 48
CFR
19 48 CFR 42 48 CFR 52 |
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