81 FR 93481 - Federal Acquisition Regulations; Payment of Subcontractors
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 81, Issue 244 (December 20, 2016)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 81, Issue 244 (December 20, 2016)
| Page Range | 93481-93488 | |
| FR Document | 2016-30221 |
[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)] [Rules and Regulations] [Pages 93481-93488] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30221] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 19, 42, and 52 [FAC 2005-94; FAR Case 2014-004; Item II; Docket No. 2014-0004; Sequence No. 1] RIN 9000-AM98 Federal Acquisition Regulations; Payment of Subcontractors 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 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 subcontractor is more than 90 days past due. DATES: Effective: January 19, 2017. FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-94, FAR Case 2014-004. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA are issuing a final rule to implement section 1334 of the Small Business Jobs Act of 2010 (Pub. L. 111-240, 15 U.S.C. 637(d)(12)) and the Small Business Administration (SBA) final rule published in the Federal Register on July 16, 2013 at 78 FR 42391, which require prime contractors to self-report late or reduced payments to their small business subcontractors. The rule also requires contracting officers 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 System (FAPIIS). DoD, GSA, and NASA published a proposed rule in the Federal Register on January 20, 2016 at 81 FR 3087. Seven respondents [[Page 93482]] submitted comments on the proposed rule. II. Discussion and Analysis The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comments in the development of the final rule. A discussion of the comments and changes made to the rule as a result of those comments are provided as follows: A. Summary of Significant Changes From the Proposed Rule 1. A reporting window of 14 days is added to FAR clause 52.242-5, Payments to Small Business Contractors, for prime contractors to report to the contracting officer an untimely or reduced payment, as defined in the rule, made to their small business subcontractors. 2. The following examples of payment and nonpayment situations not considered to be unjustified are added at FAR 42.1502(g)(2)(ii):There is a contract dispute on performance. Partial payment is made for amounts not in dispute. A payment is reduced due to past overpayments. There is an administrative mistake. Late performance by the subcontractor leads to later payment by the prime contractor. 3. A reference to FAR clause 52.242-5 was added to paragraph (b) of the clause at FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items. B. Analysis of Public Comments 1. Definitions. Multiple respondents commented on the definitions included in the proposed rule. a. Location of Definitions Comment: One respondent requested the location of the definitions for ``reduced payment'' and ``untimely payment'' be moved to either FAR subpart 2.1 or included within a new definitions section in FAR subpart 42.15. The respondent also stated that the parenthetical ``see 19.701'' was contrary to FAR drafting conventions. Response: The two definitions included in the rule are not used substantially throughout the FAR and have only an indirect connection to FAR part 42. Accordingly, the definitions are not added to either FAR part 2 or FAR part 42; they are instead retained in FAR part 19 and section 52.242-5 (as presented in the proposed rule). The reference in the proposed rule to FAR part 19 (``see 19.701'') does not run contrary to FAR drafting conventions; however, the language is changed to ``as defined in 19.701'' versus ``see 19.701.'' b. Revise Definitions Comment: One respondent recommended that the definitions for ``reduced payment'' and ``untimely payment'' be revised to include information regarding the statutorily-mandated standards set forth in FAR 52.232-27(c) relating to payment of construction subcontractors and suppliers. Response: The statutorily-mandated standards set forth in FAR 52.232-27(c) stand on their own, are not integral to the explanation or meaning of the terms ``reduced payment'' and ``untimely payment,'' and need not be repeated in their respective definitions. Comment: A number of respondents recommended that the definitions of ``reduced payment'' and ``untimely payment'' be revised to reflect those instances where the subcontractor has not completed their obligations under the contract. One respondent stated that the SBA rule made this abundantly clear, that the prime contractor should be required to report only those events that arise when the small business subcontractor is otherwise entitled to full and prompt payment (as assessed by the prime contractor), but the prime contractor is unable or unwilling to make such payments. Another respondent stated that under both of these definitions, the determination of whether a prime contractor payment is either reduced or untimely ultimately hinges upon ``the terms and conditions of a subcontract.'' The terms and conditions concerning how much and when a subcontractor is paid under a subcontract can vary greatly between such contracts. Still, another respondent believed that the proposed rule should contain additional clarification that a payment should not be considered past due if the payment is delayed by the late performance of the subcontractor. According to the respondent, contractors often accept late performance of subcontracts and then accordingly pay later according to the payment terms of the subcontract, but do not necessarily modify the subcontract to reflect the later performance date. Another respondent believed that the proposed rule, as written, provides unclear guidance to contracting officers because the definition of ``unjustified reduced or untimely payments'' is vague, and asked the FAR Council to provide a more complete definition of what constitutes an unjustified payment. For example, the rule should clarify the impact of systems errors, third- party errors, or administrative errors. Still another respondent recommended that the Councils define ``unjustifiable'' late or reduced payments as a material breach of the terms and conditions of the subcontract and provide examples of what constitutes a material breach under Federal case law. Response: The definitions of ``reduced payment'' and ``untimely payment'' are meant to convey a reasonable explanation and meaning of those terms. No additional language is necessary in the definition; however, the final rule at FAR 42.1502(g)(2)(ii) includes examples of payment and nonpayment situations that are not considered to be unjustified. Due to privity of contract it is generally not the contracting officer's responsibility to determine if a material breach of a subcontract has occurred. 2. Existing statutory and regulatory requirements. Comment: One respondent stated that existing statutory and regulatory requirements governing prime contractor and subcontractor payments already satisfy the intent of this regulation. Response: In accordance with section 1334 of the Small Business Jobs Act of 2010, the rule offers additional protections for the small business community in regard to payments from prime contractors and is required by statute. Accordingly, there is no reasonable basis for withdrawing the rule. 3. Reporting requirements. Multiple respondents commented on the reporting requirements of the proposed rule. Comment: One respondent asked if there was guidance on the time period for the prime contractor to report a late or reduced payment to the contracting officer. Response: The final rule requires the prime contractor to report within 14 days any occurrences of untimely or reduced payments to their small business subcontractors. Comment: Several respondents stated that a different methodology should be used to determine the number of occurrences of late or reduced payments that are reportable in the FAPIIS system. For example, one prime contractor makes 10,000 payments a year, but another makes 10. The history of unjustified payments should not be set at ``three'', but should be scalable, proportional to the number of payments made. Response: The final rule is consistent with SBA's final rule published on July [[Page 93483]] 16, 2013, which defines a history of unjustified untimely or reduced payments as three incidents within a 12-month period. This final rule clarifies at FAR 42.1502(g)(2)(ii) that the incidents are under a single contract. 4. Subcontracting plan dollar threshold. Comment: One respondent commented the small business subcontracting plan threshold cited in the analysis for application of the rule was inconsistent (e.g., $650,000 versus $700,000). Response: Concur. 5. Applicability (subcontractor tiers). Comment: One respondent asked if the proposed rule applied to subcontractor payments at all tiers. Response: The rule applies to prime contractor payments made to first-tier small business subcontractors. 6. Contracting officer's responsibilities. Several respondents commented on the additional contracting officer responsibilities and offered alternate procedures. Comment: Two respondents requested that the agency counsel and not the contracting officer determine whether a late or reduced payment conforms to the terms and conditions of the contract. Response: It is the contracting officer's responsibility to ensure compliance with the terms of the contract; however, per FAR 1.602-2(c), contracting officers can request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate, when making a determination regarding a late or reduced payment. 7. Additional guidance to contracting officers. Comment: Two respondents stated the rule should provide more guidance to contracting officers in regards to issues that may arise when dealing with the reduced or late payments situation in contracts. Response: This type of additional guidance would largely be non- regulatory, falling under agency procedures and training, which are outside the scope of this rule. As stated previously, per FAR 1.602- 2(c), contracting officers can request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate, when making a determination regarding a late or reduced payment. Comment: One respondent commented that adding additional responsibilities to the contracting officer while the Government is focused on ensuring the timely submittal of past performance evaluations will only lead to lesser quality evaluations. Response: There is no basis for concluding that the requirements of this rule will impact the timely submittal of past performance evaluations. 8. Government-caused delays. Comment: One respondent requested language to note situations in which the Government causes delays in subcontractor payments by changing the scope of the contract, by making late payments to the prime contractor, etc. Response: The FAR already contains adequate policy on Government- caused delays and changes to contract terms and conditions. In addition, as stated previously, the final rule includes the specific examples of payment and nonpayment situations that are not considered to be unjustified. 9. Penalties. Comment: One respondent asked what penalties prime contractors will face for failing to self-report instances of non-compliance. Response: Government penalties are beyond the scope of this rule. However, the requirements of this rule (in addition to other Government rights and remedies) permit the contracting officer to issue an adverse past performance assessment for noncompliance with FAR 52.219-9(a)(15), based upon individual circumstances. 10. Incentivizing prime contractor compliance. Comment: One respondent commented that prime contractors should be incentivized to make reduced payments to small business subcontractors, rather than withhold payments when a dispute arises between the prime contractor and small business subcontractor. Unlike a late payment, the proposed rule does not expressly grant a 90-day window in which to resolve a reduced payment that may arise for a legitimate reason (i.e., substandard performance or nonconforming parts). According to the respondent, because the rule does not address when a prime contractor must report a reduced payment to the contracting officer, one might interpret the rule to require an immediate report by the prime contractor to the contracting officer upon making a reduced payment. However, requiring the prime contractor to report a reduced payment immediately creates a disincentive for prime contractors to make a reduced rather than late payment, as the obligation to report a late payment does not arise for a minimum of 90 days past the original due date. Response: Reduced payments as a result of a dispute on performance between a prime contractor and a small business contractor would not fall within the definition of ``reduced payment.'' However, the rule does contain a reporting window of 14 days for prime contractors to report to the contracting officer untimely or reduced payments, as defined in the rule, made to their small business subcontractors. This 14-day reporting timeline was added to the rule as a result of public comments. Moreover, the rule does not prohibit prime contractors from making reduced payments to their small business subcontractors. 11. Commercial items and commercially available off-the-shelf items. Comment: Several respondents commented that the FAR Council should reconsider the application of this rule to commercial and COTS item providers. One respondent commented that given the Government's stated preference for ``commercial plans'' in FAR 52.219-9(g) for commercial item contractors (including commercially available off-the-shelf (COTS) contractors), it is likely that most commercial item and COTS contractors have commercial subcontracting plans. These commercial plans apply to the contractor's entire commercial organization, which in many cases, includes only a minimal amount of sales to the Federal Government. These commercial plans apply to virtually every subcontractor or supplier from which a contractor purchases supplies or services, whether or not those supplies or services are used in the performance of government contracts. Another respondent commented that over the last decade, the procurement community has seen the erosion of commercial item contracting (in accordance with 41 U.S.C. 1906) and the benefits attendant thereto, as well as layering onto the commercial item contracting process Government unique requirements that have increased costs and raised barriers to entry into the Federal marketplace. Another respondent stated that applying the rule to commercial and COTS item providers would not be in the best interests of the Government, and would run contrary to ongoing attempts by Government policy makers to streamline the acquisition process for the acquisition of commercial and COTS items to reduce the number of unique government rules applicable to large and small businesses providing commercial and COTS supplies and services, and to introduce more commercial innovation and [[Page 93484]] technology into the federal business market. Response: The FAR Council has determined that the rule should, as a matter of policy, apply to contracts for the acquisition of commercial items and COTS items. See section III of this preamble. Comment: One respondent commented that FAR clause 52.242-5 was not added to the list of clauses in FAR 52.212-5 regarding commercial items. Response: The final rule adds FAR clause 52.242-5 to the list of clauses in FAR 52.212-5 regarding application to commercial items. 12. Public burden. Comment: Two respondents stated that the Councils had underestimated the public burden in regards to the proposed rule. One respondent commented that the FAR Council has greatly underestimated the implementation burden on commercial item and COTS item contractors, especially considering the broad definition of ``subcontractor'' that applies to the proposed rule. The other respondent believed that the estimate of reporting time of only two hours per respondent is grossly underestimated. This negligible amount of time assumes that all contractors can easily identify from their payment systems which subcontractors are small businesses. The respondent believed that this is often not the case, and that the small business size status of a subcontractor may be unknown to the contractor's other accounting systems. The other respondent commented that since the Small Business Jobs Act of 2010 does not specifically require that the subcontractor payment clause apply to commercial contracts, the respondent recommended that the FAR Council seek additional information about the burden on contractors before a determination is made to apply the payment of subcontractor requirements to commercial item acquisitions. The respondent did not find that the availability of limited information indicated that the burden may not be significant, as described in the proposed rule. Rather, initial feedback from contractors suggested that the burdens associated with reporting under the rule will have a significant impact. Response: The respondents do not offer data with which to support changing the current estimated public burden hours. However, since this is a new rule without an empirical frame of reference, the public reporting burden is reviewed every three years and can be adjusted as necessary. 13. Convene industry working group. Comment: One respondent commented that the FAR Council should convene an industry working group in order to gain a better understanding of some of the more nuanced aspects of the subcontractor payment requirement. Response: The Councils do not concur that such a working group is necessary at this time. C. Other Changes The following changes were made, not as a result of public comments: 1. FAR 1.106 was amended to add the OMB Control Number associated with FAR clause 52.242-5. 2. Minor editorial changes were made for grammatical reasons or to conform to FAR drafting conventions. III. Applicability to Contracts for Commercial Items and Commercially Available Off-the-Shelf Items The Federal Acquisition Regulatory (FAR) Council has made the following determinations with respect to the rule's application of Section 1334 of the Small Business Jobs Act of 2010, to contracts for the acquisition of commercial items and contracts for the acquisition of commercially available off-the-shelf (COTS) items. A. Applicability to Contracts for the Acquisition of Commercial Items Pursuant to 41 U.S.C. 1906, acquisitions of commercial items (other than acquisitions of COTS items, which are addressed in 41 U.S.C. 1907) are exempt from a provision of law unless the law (i) contains criminal or civil penalties; (ii) specifically refers to 41 U.S.C. 1906 and states that the law applies to acquisitions of commercial items; or (iii) the FAR Council makes a written determination and finding that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of commercial items from the provision of law. If none of these conditions are met, the FAR is required to include the statutory requirement(s) on a list of provisions of law that are inapplicable to acquisitions of commercial items. The purpose of this rule is to implement section 1334 of the Small Business Jobs Act of 2010. Section 1334 requires prime contractors to self-report late or reduced payments to their small business subcontractors. The rule also requires contracting officers 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 System (FAPIIS). The statutory requirements are reflected in the Small Business Administration's (SBA's) final rule published at 78 FR 42391 on July 16, 2013, which did not exempt acquisitions of commercial items. The law is silent on the applicability of these requirements to acquisitions of commercial items and does not independently provide for criminal or civil penalties; nor does it include terms making express reference to 41 U.S.C. 1906 and its application to acquisitions of commercial items. Therefore, it does not apply to acquisitions of commercial items unless the FAR Council makes a written determination as provided in 41 U.S.C. 1906. The law furthers the administration's goal of supporting small business and advances the interests of small business subcontractors by discouraging reduced or untimely payments to small business subcontractors. Exclusion of acquisitions for commercial items from these requirements will limit the full implementation of these subcontracting-related objectives. Further, the primary FAR clauses implementing Federal procurement policies governing subcontracting with small business, FAR 52.219-8, Utilization of Small Business Concerns, and 52.219-9, Small Business Subcontracting Plan, are currently prescribed for use in solicitations for commercial items. Exclusion of acquisitions for commercial items from these requirements would create confusion among contractors and the Federal contracting workforce. Moreover, the rule may also increase the timeliness of payments to small business subcontractors. For these reasons, it is in the best interest of the Federal Government to apply the requirements of the rule to the acquisition of commercial items. B. Applicability of Contracts for the Acquisition of COTS Items Pursuant to 41 U.S.C. 1907, acquisitions of COTS items will be exempt from a provision of law unless the law (i) contains criminal or civil penalties; (ii) specifically refers to 41 U.S.C. 1907 and states that the law applies to acquisitions of COTS items; (iii) concerns authorities or responsibilities under 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; or (iv) the Administrator for Federal Procurement Policy makes a written determination and finding that would not be in the best interest of the Federal Government to exempt contracts [[Page 93485]] for the procurement of COTS items from the provision of law. If none of these conditions are met, the FAR is required to include the statutory requirement(s) on a list of provisions of law that are inapplicable to acquisitions of COTS items. The purpose of this rule is to implement section 1334 of the Small Business Jobs Act of 2010. Section 1334 requires prime contractors to self-report late or reduced payments to their small business subcontractors. The rule also requires contracting officers to record the identity of contractors with a history of late or reduced payments to small business subcontractors in FAPIIS. These statutory requirements are reflected in the SBA final rule published at 78 FR 42391 on July 16, 2013, which did not exempt acquisitions of COTS items. The law is silent on the applicability of these requirements to acquisitions of COTS items and does not independently provide for criminal or civil penalties; nor does it include terms making express reference to 41 U.S.C. 1907 and its application to acquisitions of COTS items. Therefore, it does not apply to acquisitions of COTS items unless the Administrator for Federal Procurement Policy makes a written determination as provided in 41 U.S.C. 1907. The law furthers the Administration's goal of supporting small business and advances the interests of small business subcontractors by discouraging reduced or untimely payments to 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, the primary FAR clauses implementing Federal procurement policies governing subcontracting with small business, FAR 52.219-8, Utilization of Small Business Concerns, and 52.219-9, Small Business Subcontracting Plan, are currently prescribed for use in solicitations for COTS items. Exclusion of acquisitions for COTS items from these requirements would create confusion among contractors and the Federal contracting workforce. Moreover, the rule may also increase the timeliness of payments to small business subcontractors. For these reasons, it is in the best interest of the Federal Government to apply the subcontracting requirements to the acquisition of COTS items. IV. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was 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. V. Regulatory Flexibility Act DoD, GSA, and NASA have prepared a final regulatory flexibility analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows: Section 1334 of the Small Business Jobs Act of 2010 (Pub. L. 111-240) and the Small Business Administration's final rule at 78 FR 42391, Small Business Subcontracting, published 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 the Federal Awardee Performance and Integrity System (FAPIIS). This final rule implements the self-reporting requirements of section 1334 by requiring contracting officers to include FAR clause 52.242-5, 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 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. FAR 42.1503, Table 42-2 is also amended to include unjustified reduced or untimely payments to small business subcontractors as part of the definition of ratings for the ``small business subcontracting'' past performance evaluation factors. There were no public comments received on the initial regulatory flexibility analysis. The final rule applies 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. This rule imposes new recordkeeping and reporting requirements and contains information collection requirements. Small businesses are not required to report under this information collection because it only applies to prime contractors whose contracts contain the clause 52.219-9, Small Business Subcontracting Plan, which is not applicable to small businesses. The rule does not duplicate, overlap, or conflict with any other Federal rules. Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. VI. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The rule contains information collection requirements. OMB has cleared this information collection requirement under OMB Control Number 9000-0196, titled: ``Payments to Small Business Subcontractors.'' List of Subjects in 48 CFR Parts 1, 19, 42, and 52. Government procurement. Dated: December 9, 2016. William F. Clark, Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy. Therefore, DoD, GSA, and NASA are amending 48 CFR parts 1, 19, 42, and 52 as set forth below: 0 1. The authority citation for 48 CFR parts 1, 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 0 2. Amend section 1.106 by adding to the table, in numerical sequence, FAR segment ``52.242-5'' and its corresponding OMB Control No. ``9000- 0196''. PART 19--SMALL BUSINESS PROGRAMS 0 3. Amend section 19.701 by adding, in alphabetical order, the definitions of ``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 [[Page 93486]] 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 4. Amend section 19.704 by-- 0 a. Removing from paragraph (a)(13) ``completion; and'' and adding ``completion;'' in its place; 0 b. Removing from paragraph (a)(14) ``subcontractor.'' and adding ``subcontractor; and'' in its place; and 0 c. Adding paragraph (a)(15). The addition reads as follows: 19.704 Subcontracting plan requirements. (a) * * * (15) 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 if the offeror pays a reduced or an untimely payment to a small business subcontractor (see 52.242-5). * * * * * 19.705-4 [Amended] 0 5. Amend section 19.705-4 by removing from paragraphs (b) and (c) the number ``14'' and adding ``15'' in both places. PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES 0 6. 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 (as defined in 19.701), made to small business subcontractors, determined by the contracting officer to be unjustified. The contracting officer shall-- (i) 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; and (ii) Determine 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 ratings in Table 42-2). The following payment or nonpayment situations are not considered to be unjustified: (A) There is a contract dispute on performance. (B) A partial payment is made for amounts not in dispute. (C) A payment is reduced due to past overpayments. (D) There is an administrative mistake. (E) Late performance by the subcontractor leads to later payment by the prime contractor. * * * * * 0 7. Amend section 42.1503 by-- 0 a. Revising paragraphs (b)(2)(v) and (b)(2)(vi); 0 b. Revising paragraph (h)(1) introductory text; 0 c. Revising paragraphs (h)(1)(iv) and (h)(1)(v); 0 d. Adding paragraph (h)(1)(vi); and 0 e. Revising Table 42-2. The revisions and addition read as follows: 42.1503 Procedures. * * * * * (b)(1) * * * (2) * * * (v) Small business subcontracting, including reduced or untimely payments to small business subcontractors when 19.702(a) requires a subcontracting plan (as applicable, see Table 42-2). (vi) Other (as applicable) (e.g., trafficking violations, tax delinquency, failure to report in accordance with contract terms and conditions, defective cost or pricing data, terminations, suspension and debarments). * * * * * (h) * * * (1) Agencies shall ensure information is accurately reported in the FAPIIS module of CPARS within 3 calendar days after a contracting officer-- * * * * * (iv) Makes a subsequent withdrawal or a conversion of a termination for default to a termination for convenience; (v) Receives a final determination after an administrative proceeding, in accordance with 22.1704(d)(1), that substantiates an allegation of a violation of the trafficking in persons prohibitions in 22.1703(a) and 52.222-50(b); or (vi) Determines that a contractor has a history of three or more unjustified reduced or untimely payments to small business subcontractors under a single contract within a 12-month period (see 42.1502(g)(2)). * * * * * [[Page 93487]] 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 and innovative work service disabled directly related to veteran owned small the contract, and business (SDVOSB). opportunities Complied with FAR should not be 52.219-8, limited to indirect Utilization of work such as Small Business cleaning offices, Concerns. Exceeded supplies, any other small landscaping, etc. business Also, there should participation have been no requirements significant incorporated in the weaknesses contract/order, identified 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. (d) Marginal................ Deficient in meeting To justify a key subcontracting Marginal rating, 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. [[Page 93488]] (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. ------------------------------------------------------------------------ 0 8. Add section 42.1504 to read as follows: 42.1504 Contract clause. Insert the clause at 52.242-5, Payments to Small Business Subcontractors, in all solicitations and contracts containing the clause at 52.219-9, Small Business Subcontracting Plan. PART 52--SOLICITATION AND PROVISIONS AND CONTRACT CLAUSES 0 9. Amend section 52.212-5 by-- 0 a. Revising the date of the clause; 0 b. Revising the introductory text of paragraph (b)(17)(i); 0 c. Redesignating paragraph (b)(60) as (b)(61); and 0 d. Adding a new paragraph (b)(60). The revisions and addition 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 (JAN 2017) (b) * * * _(17)(i) 52.219-9, Small Business Subcontracting Plan (JAN 2017) (15 U.S.C. 637(d)(4)). * * * * * _(60) 52.242-5, Payments to Small Business Subcontractors (JAN 2017)(15 U.S.C. 637(d)(12)). * * * * * 0 10. Amend section 52.219-9 by-- 0 a. Revising the date of the clause; 0 b. Adding in paragraph (b), in alphabetical order, the definitions of ``Reduced payment'' and ``Untimely payment''; 0 c. Adding paragraph (d)(15); 0 d. In Alternate III-- 0 1. Revising the date of the Alternate; and 0 2. Removing from the introductory paragraph of Alternate III ``clause;'' and adding ``clause:'' in its place; and 0 e. In Alternate IV-- 0 1. Revising the date of the Alternate; and 0 2. Adding paragraph (d)(15). The revisions and additions read as follows: 52.219-9 Small Business Subcontracting Plan. * * * * * Small Business Subcontracting Plan (JAN 2017) (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) * * * (15) Assurances that the offeror will pay its small business subcontractors on time and 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 52.242-5). * * * * * Alternate III (JAN 2017). * * * * * * * * Alternate IV (JAN 2017). * * * (d) * * * (15) Assurances that the offeror will pay its small business subcontractors on time and 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 52.242-5). 0 11. Add section 52.242-5 to read as follows: 52.242-5 Payments to Small Business Subcontractors. As prescribed in 42.1504, insert the following clause: Payments to Small Business Subcontractors (JAN 2017) (a) Definitions. As used in this clause-- 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 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. (b) Notice. The Contractor shall notify the Contracting Officer, in writing, not later than 14 days after-- (1) A small business subcontractor was entitled to payment under the terms and conditions of the subcontract; and (2) The Contractor-- (i) Made a reduced or untimely payment to the small business subcontractor; or (ii) 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) of this clause. (End of clause) [FR Doc. 2016-30221 Filed 12-19-16; 8:45 am] BILLING CODE 6820-EP-P
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(2) * * * (e) The Contractor shall not allow any DEPARTMENT OF DEFENSE
(viii) 52.244–6, Subcontracts for employee access to a system of records, or
Commercial Items (JAN 2017). permit any employee to create, collect, use, GENERAL SERVICES
* * * * * process, store, maintain, disseminate, ADMINISTRATION
■ 7. Add section 52.224–3 to read as
disclose, dispose or otherwise handle
follows: personally identifiable information, or to NATIONAL AERONAUTICS AND
design, develop, maintain, or operate a SPACE ADMINISTRATION
52.224–3 Privacy Training. system of records unless the employee has
As prescribed in 24.302(a), insert the completed privacy training, as required by 48 CFR Parts 1, 19, 42, and 52
following clause: this clause.
(f) The substance of this clause, including [FAC 2005–94; FAR Case 2014–004; Item
Privacy Training (JAN 2017) this paragraph (f), shall be included in all II; Docket No. 2014–0004; Sequence No. 1]
(a) Definition. As used in this clause, subcontracts under this contract, when
personally identifiable information means subcontractor employees will— RIN 9000–AM98
information that can be used to distinguish (1) Have access to a system of records;
or trace an individual’s identity, either alone (2) Create, collect, use, process, store,
Federal Acquisition Regulations;
or when combined with other information maintain, disseminate, disclose, dispose, or
Payment of Subcontractors
that is linked or linkable to a specific
otherwise handle personally identifiable AGENCY: Department of Defense (DoD),
individual. (See Office of Management and
Budget (OMB) Circular A–130, Managing information; or General Services Administration (GSA),
Federal Information as a Strategic Resource). (3) Design, develop, maintain, or operate a and National Aeronautics and Space
(b) The Contractor shall ensure that initial system of records. Administration (NASA).
privacy training, and annual privacy training
ACTION: Final rule.
thereafter, is completed by contractor (End of clause)
employees who— SUMMARY: DoD, GSA, and NASA are
(1) Have access to a system of records; Alternate I (JAN 2017). As prescribed
(2) Create, collect, use, process, store, in 24.302(b), if the agency specifies that issuing a final rule amending the
maintain, disseminate, disclose, dispose, or only its agency-provided training is Federal Acquisition Regulation (FAR) to
otherwise handle personally identifiable acceptable, substitute the following implement a section of the Small
information on behalf of an agency; or paragraph (c) for paragraph (c) of the Business Jobs Act of 2010. This statute
(3) Design, develop, maintain, or operate a requires contractors to notify the
system of records (see also FAR subpart 24.1 basic clause:
contracting officer, in writing, if the
and 39.105). (c) The contracting agency will provide contractor pays a reduced price to a
(c)(1) Privacy training shall address the key initial privacy training, and annual privacy
elements necessary for ensuring the
small business subcontractor or if the
training thereafter, to Contractor employees contractor’s payment to a small business
safeguarding of personally identifiable
for the duration of this contract. subcontractor is more than 90 days past
information or a system of records. The
training shall be role-based, provide due.
foundational as well as more advanced levels ■ 8. Amend section 52.244–6 by—
DATES: Effective: January 19, 2017.
of training, and have measures in place to ■ a. Revising the date of the clause;
test the knowledge level of users. At a FOR FURTHER INFORMATION CONTACT: Mr.
minimum, the privacy training shall cover— ■ b. Redesignating paragraphs (c)(1)(xv) Curtis E. Glover, Sr., Procurement
(i) The provisions of the Privacy Act of through (xvii) as paragraphs (c)(1)(xvi) Analyst, at 202–501–1448 for
1974 (5 U.S.C. 552a), including penalties for through (xviii), respectively; and clarification of content. For information
violations of the Act; pertaining to status or publication
■ c. Adding a new paragraph (c)(1)(xv).
(ii) The appropriate handling and schedules, contact the Regulatory
safeguarding of personally identifiable The revisions and additions read as Secretariat Division at 202–501–4755.
information; follows:
(iii) The authorized and official use of a Please cite FAC 2005–94, FAR Case
system of records or any other personally 52.244–6 Subcontracts for Commercial 2014–004.
identifiable information; Items. SUPPLEMENTARY INFORMATION:
(iv) The restriction on the use of
unauthorized equipment to create, collect, * * * * * I. Background
use, process, store, maintain, disseminate, DoD, GSA, and NASA are issuing a
Subcontracts for Commercial Items
disclose, dispose or otherwise access
personally identifiable information; (JAN 2017) final rule to implement section 1334 of
(v) The prohibition against the the Small Business Jobs Act of 2010
* * * * * (Pub. L. 111–240, 15 U.S.C. 637(d)(12))
unauthorized use of a system of records or
unauthorized disclosure, access, handling, or (c)(1) * * * and the Small Business Administration
use of personally identifiable information; (xv)(A) 52.224–3, Privacy Training (SBA) final rule published in the
and Federal Register on July 16, 2013 at 78
(vi) The procedures to be followed in the
(JAN 2017) (5 U.S.C. 552a) if flow down
is required in accordance with 52.224– FR 42391, which require prime
event of a suspected or confirmed breach of
a system of records or the unauthorized 3(f). contractors to self-report late or reduced
disclosure, access, handling, or use of payments to their small business
(B) Alternate I (JAN 2017) of 52.224– subcontractors. The rule also requires
personally identifiable information (see OMB
guidance for Preparing for and Responding to 3, if flow down is required in contracting officers to record the
a Breach of Personally Identifiable accordance with 52.224–3(f) and the identity of contractors with a history of
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Information). agency specifies that only its agency- late or reduced payments to small
(2) Completion of an agency-developed or provided training is acceptable). business subcontractors in the Federal
agency-conducted training course shall be Awardee Performance and Integrity
deemed to satisfy these elements. * * * * *
(d) The Contractor shall maintain and, [FR Doc. 2016–30213 Filed 12–19–16; 8:45 am] System (FAPIIS). DoD, GSA, and NASA
upon request, provide documentation of BILLING CODE 6820–EP–P published a proposed rule in the
completion of privacy training to the Federal Register on January 20, 2016 at
Contracting Officer. 81 FR 3087. Seven respondents
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![Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93485
for the procurement of COTS items from necessary, to select regulatory This rule imposes new recordkeeping and
the provision of law. If none of these approaches that maximize net benefits reporting requirements and contains
conditions are met, the FAR is required (including potential economic, information collection requirements. Small
to include the statutory requirement(s) environmental, public health and safety businesses are not required to report under
this information collection because it only
on a list of provisions of law that are effects, distributive impacts, and applies to prime contractors whose contracts
inapplicable to acquisitions of COTS equity). E.O. 13563 emphasizes the contain the clause 52.219–9, Small Business
items. importance of quantifying both costs Subcontracting Plan, which is not applicable
The purpose of this rule is to and benefits, of reducing costs, of to small businesses.
implement section 1334 of the Small harmonizing rules, and of promoting The rule does not duplicate, overlap, or
Business Jobs Act of 2010. Section 1334 flexibility. This is a significant conflict with any other Federal rules.
requires prime contractors to self-report regulatory action and, therefore, was Interested parties may obtain a copy
late or reduced payments to their small subject to review under section 6(b) of of the FRFA from the Regulatory
business subcontractors. The rule also E.O. 12866, Regulatory Planning and Secretariat Division. The Regulatory
requires contracting officers to record Review, dated September 30, 1993. This Secretariat Division has submitted a
the identity of contractors with a history rule is not a major rule under 5 U.S.C. copy of the FRFA to the Chief Counsel
of late or reduced payments to small 804. for Advocacy of the Small Business
business subcontractors in FAPIIS.
These statutory requirements are V. Regulatory Flexibility Act Administration.
reflected in the SBA final rule published DoD, GSA, and NASA have prepared VI. Paperwork Reduction Act
at 78 FR 42391 on July 16, 2013, which a final regulatory flexibility analysis The Paperwork Reduction Act (44
did not exempt acquisitions of COTS (FRFA) consistent with the Regulatory U.S.C. Chapter 35) applies. The rule
items. Flexibility Act, 5 U.S.C. 601, et seq. The
The law is silent on the applicability contains information collection
FRFA is summarized as follows: requirements. OMB has cleared this
of these requirements to acquisitions of
COTS items and does not independently
Section 1334 of the Small Business Jobs information collection requirement
Act of 2010 (Pub. L. 111–240) and the Small under OMB Control Number 9000–0196,
provide for criminal or civil penalties; Business Administration’s final rule at 78 FR
nor does it include terms making titled: ‘‘Payments to Small Business
42391, Small Business Subcontracting, Subcontractors.’’
express reference to 41 U.S.C. 1907 and published July 16, 2013, require that the
its application to acquisitions of COTS prime contractor self-report when the prime List of Subjects in 48 CFR Parts 1, 19,
items. Therefore, it does not apply to contractor makes reduced or untimely 42, and 52.
acquisitions of COTS items unless the payments to small business subcontractors.
Section 1334 also requires the contracting Government procurement.
Administrator for Federal Procurement
Policy makes a written determination as officer to record the identity of contractors Dated: December 9, 2016.
with a history of unjustified reduced or William F. Clark,
provided in 41 U.S.C. 1907. untimely payments in the Federal Awardee
The law furthers the Administration’s Performance and Integrity System (FAPIIS). Director, Office of Governmentwide
goal of supporting small business and This final rule implements the self- Acquisition Policy, Office of Acquisition
advances the interests of small business reporting requirements of section 1334 by Policy, Office of Governmentwide Policy.
subcontractors by discouraging reduced requiring contracting officers to include FAR Therefore, DoD, GSA, and NASA are
or untimely payments to small business clause 52.242–5, Payments to Small Business amending 48 CFR parts 1, 19, 42, and
subcontractors. Exclusion of a large Subcontractors, in all solicitations and 52 as set forth below:
segment of Federal contracting, such as contracts containing the clause at 52.219–9,
■ 1. The authority citation for 48 CFR
acquisitions for COTS items, will limit Small Business Subcontracting Plan. The
new FAR clause requires prime contractors to parts 1, 19, 42, and 52 continues to read
the full implementation of these as follows:
notify the contracting officer of reduced or
subcontracting-related objectives. untimely payments to small business
Further, the primary FAR clauses Authority: 40 U.S.C. 121(c); 10 U.S.C.
subcontractors. chapter 137; and 51 U.S.C. 20113.
implementing Federal procurement The rule also amends FAR 42.1503(h) to
policies governing subcontracting with require contracting officers to report to PART 1—FEDERAL ACQUISITION
small business, FAR 52.219–8, FAPIIS a contractor that has a history of three REGULATIONS SYSTEM
Utilization of Small Business Concerns, or more reduced or untimely payments to
and 52.219–9, Small Business small business subcontractors within a 12- 1.106 [Amended]
Subcontracting Plan, are currently month period under a single contract that are
unjustified. FAR 42.1503, Table 42–2 is also ■ 2. Amend section 1.106 by adding to
prescribed for use in solicitations for the table, in numerical sequence, FAR
amended to include unjustified reduced or
COTS items. Exclusion of acquisitions untimely payments to small business segment ‘‘52.242–5’’ and its
for COTS items from these requirements subcontractors as part of the definition of corresponding OMB Control No. ‘‘9000–
would create confusion among ratings for the ‘‘small business 0196’’.
contractors and the Federal contracting subcontracting’’ past performance evaluation
workforce. Moreover, the rule may also factors. PART 19—SMALL BUSINESS
increase the timeliness of payments to There were no public comments received PROGRAMS
small business subcontractors. on the initial regulatory flexibility analysis.
For these reasons, it is in the best The final rule applies to payments made to ■ 3. Amend section 19.701 by adding, in
interest of the Federal Government to small businesses that are first-tier alphabetical order, the definitions of
apply the subcontracting requirements subcontractors to prime government
‘‘Reduced payment’’ and ‘‘Untimely
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contractors. There will be no burden on small
to the acquisition of COTS items. businesses, as small businesses do not have payment’’ to read as follows:
IV. Executive Orders 12866 and 13563 subcontracting plans. This regulation will 19.701 Definitions.
benefit small business subcontractors by
Executive Orders (E.O.s) 12866 and encouraging large business prime contractors * * * * *
13563 direct agencies to assess all costs to pay small business subcontractors in a Reduced Payment means a payment
and benefits of available regulatory timely manner and the agreed upon that is for less than the amount agreed
alternatives and, if regulation is contractual price. upon in a subcontract in accordance
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![93486 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations
with its terms and conditions, for (g) Past performance evaluations shall ■ c. Revising paragraphs (h)(1)(iv) and
supplies and services for which the include an assessment of the (h)(1)(v);
Government has paid the prime contractor’s— ■ d. Adding paragraph (h)(1)(vi); and
contractor. (1) Performance against, and efforts to ■ e. Revising Table 42–2.
* * * * * achieve, the goals identified in the small The revisions and addition read as
Untimely Payment means a payment business subcontracting plan when the follows:
to a subcontractor that is more than 90 contract includes the clause at 52.219–
9, Small Business Subcontracting Plan; 42.1503 Procedures.
days past due under the terms and
conditions of a subcontract for supplies and * * * * *
and services for which the Government (2) Reduced or untimely payments (as (b)(1) * * *
has paid the prime contractor. defined in 19.701), made to small (2) * * *
business subcontractors, determined by (v) Small business subcontracting,
■ 4. Amend section 19.704 by—
■ a. Removing from paragraph (a)(13) the contracting officer to be unjustified. including reduced or untimely
‘‘completion; and’’ and adding The contracting officer shall— payments to small business
‘‘completion;’’ in its place; (i) Consider and evaluate a subcontractors when 19.702(a) requires
■ b. Removing from paragraph (a)(14) contractor’s written explanation for a a subcontracting plan (as applicable, see
‘‘subcontractor.’’ and adding reduced or an untimely payment when Table 42–2).
‘‘subcontractor; and’’ in its place; and determining whether the reduced or (vi) Other (as applicable) (e.g.,
■ c. Adding paragraph (a)(15). untimely payment is justified; and trafficking violations, tax delinquency,
The addition reads as follows: (ii) Determine that a history of failure to report in accordance with
unjustified reduced or untimely contract terms and conditions, defective
19.704 Subcontracting plan requirements. payments has occurred when the cost or pricing data, terminations,
(a) * * * contractor has reported three or more suspension and debarments).
(15) Assurances that the offeror will occasions of unjustified reduced or * * * * *
pay its small business subcontractors on untimely payments under a single (h) * * *
time and in accordance with the terms contract within a 12-month period (see (1) Agencies shall ensure information
and conditions of the subcontract, and 42.1503(h)(1)(vi) and the evaluation is accurately reported in the FAPIIS
notify the contracting officer if the ratings in Table 42–2). The following module of CPARS within 3 calendar
offeror pays a reduced or an untimely payment or nonpayment situations are days after a contracting officer—
payment to a small business not considered to be unjustified: * * * * *
subcontractor (see 52.242–5). (A) There is a contract dispute on (iv) Makes a subsequent withdrawal
* * * * * performance. or a conversion of a termination for
(B) A partial payment is made for default to a termination for
19.705–4 [Amended] amounts not in dispute. convenience;
■ 5. Amend section 19.705–4 by (C) A payment is reduced due to past (v) Receives a final determination
removing from paragraphs (b) and (c) overpayments. after an administrative proceeding, in
the number ‘‘14’’ and adding ‘‘15’’ in (D) There is an administrative accordance with 22.1704(d)(1), that
both places. mistake. substantiates an allegation of a violation
(E) Late performance by the of the trafficking in persons prohibitions
PART 42—CONTRACT subcontractor leads to later payment by in 22.1703(a) and 52.222–50(b); or
ADMINISTRATION AND AUDIT the prime contractor. (vi) Determines that a contractor has
SERVICES * * * * * a history of three or more unjustified
■ 6. Amend section 42.1502 by revising ■ 7. Amend section 42.1503 by— reduced or untimely payments to small
paragraph (g) to read as follows: ■ a. Revising paragraphs (b)(2)(v) and business subcontractors under a single
(b)(2)(vi); contract within a 12-month period (see
42.1502 Policy. ■ b. Revising paragraph (h)(1) 42.1502(g)(2)).
* * * * * introductory text; * * * * *
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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.
(d) Marginal .......................... Deficient in meeting key subcontracting plan elements. To justify a Marginal rating, identify a significant event
Deficient in complying with FAR 52.219–8, Utilization that the contractor had trouble overcoming and how it
of Small Business Concerns, and any other small impacted small business utilization. A Marginal rating
business participation requirements in the contract/ should be supported by referencing the actions taken
order. Did not submit Individual Subcontract Reports by the Government that notified the contractor of the
and/or Summary Subcontract Reports in an accurate 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-
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duced or untimely payments to small business sub-
contractors within a 12-month period.
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![93488 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations
TABLE 42–2—EVALUATION RATINGS DEFINITIONS—Continued
[For the small business subcontracting evaluation factor, when 52.219–9 is used]
Rating Definition Note
(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.
■ 8. Add section 42.1504 to read as ■ c. Adding paragraph (d)(15); (15) Assurances that the offeror will pay its
follows: ■ d. In Alternate III— small business subcontractors on time and in
■ 1. Revising the date of the Alternate; accordance with the terms and conditions of
42.1504 Contract clause. and the underlying subcontract, and notify the
Insert the clause at 52.242–5, ■ 2. Removing from the introductory contracting officer when the prime contractor
Payments to Small Business paragraph of Alternate III ‘‘clause;’’ and makes either a reduced or an untimely
Subcontractors, in all solicitations and adding ‘‘clause:’’ in its place; and payment to a small business subcontractor
contracts containing the clause at ■ e. In Alternate IV— (see 52.242–5).
52.219–9, Small Business ■ 1. Revising the date of the Alternate;
and ■ 11. Add section 52.242–5 to read as
Subcontracting Plan.
■ 2. Adding paragraph (d)(15). follows:
PART 52—SOLICITATION AND The revisions and additions read as 52.242–5 Payments to Small Business
PROVISIONS AND CONTRACT follows: Subcontractors.
CLAUSES
52.219–9 Small Business Subcontracting As prescribed in 42.1504, insert the
■ 9. Amend section 52.212–5 by— Plan. following clause:
■ a. Revising the date of the clause; * * * * *
■ b. Revising the introductory text of Payments to Small Business
Small Business Subcontracting Plan Subcontractors (JAN 2017)
paragraph (b)(17)(i); (JAN 2017)
■ c. Redesignating paragraph (b)(60) as (a) Definitions. As used in this clause—
(b)(61); and (b) * * * Reduced payment means a payment that is
■ d. Adding a new paragraph (b)(60). * * * * * for less than the amount agreed upon in a
The revisions and addition read as Reduced payment means a payment that is subcontract in accordance with its terms and
follows: for less than the amount agreed upon in a conditions, for supplies and services for
subcontract in accordance with its terms and which the Government has paid the prime
52.212–5 Contract Terms and Conditions conditions, for supplies and services for contractor.
Required to Implement Statutes or which the Government has paid the prime Untimely payment means a payment that is
Executive Orders—Commercial Items. contractor. more than 90 days past due under the terms
* * * * * * * * * * and conditions of a subcontract, for supplies
Untimely payment means a payment to a and services for which the Government has
Contract Terms and Conditions subcontractor that is more than 90 days past paid the prime contractor.
Required To Implement Statutes or due under the terms and conditions of a (b) Notice. The Contractor shall notify the
Executive Orders—Commercial Items subcontract for supplies and services for Contracting Officer, in writing, not later than
(JAN 2017) which the Government has paid the prime 14 days after—
contractor. (1) A small business subcontractor was
(b) * * * (d) * * *
l(17)(i) 52.219–9, Small Business (15) Assurances that the offeror will pay its
entitled to payment under the terms and
Subcontracting Plan (JAN 2017) (15 U.S.C. conditions of the subcontract; and
small business subcontractors on time and in
637(d)(4)). (2) The Contractor—
accordance with the terms and conditions of
* * * * * the underlying subcontract, and notify the (i) Made a reduced or untimely payment to
l(60) 52.242–5, Payments to Small contracting officer when the prime contractor the small business subcontractor; or
Business Subcontractors (JAN 2017)(15 makes either a reduced or an untimely (ii) Failed to make a payment, which is
U.S.C. 637(d)(12)). payment to a small business subcontractor now untimely.
mstockstill on DSK3G9T082PROD with RULES6
(see 52.242–5). (c) Content of notice. The Contractor shall
* * * * * include the reason(s) for making the reduced
■ 10. Amend section 52.219–9 by— * * * * *
or untimely payment in any notice required
■ a. Revising the date of the clause; Alternate III (JAN 2017). * * * under paragraph (b) of this clause.
■ b. Adding in paragraph (b), in * * * * *
alphabetical order, the definitions of (End of clause)
‘‘Reduced payment’’ and ‘‘Untimely Alternate IV (JAN 2017). * * * [FR Doc. 2016–30221 Filed 12–19–16; 8:45 am]
payment’’; (d) * * * BILLING CODE 6820–EP–P
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Document Created: 2018-02-14 09:10:30
Document Modified: 2018-02-14 09:10:30
| 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: January 19, 2017. | |
| Contact | Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-94, FAR Case 2014-004. | |
| FR Citation | 81 FR 93481 | |
| RIN Number | 9000-AM98 | |
| CFR Citation | 48
CFR
19 48 CFR 1 48 CFR 42 48 CFR 52 |
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