[Federal Register Volume 66, Number 190 (Monday, October 1, 2001)]
[Rules and Regulations]
[Pages 49866-49867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24352]
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DEPARTMENT OF AGRICULTURE
Office of Procurement and Property Management
48 CFR Part 442
[AGAR Case 99-02]
RIN 0599-AA08
Agriculture Acquisition Regulation; Designation and Mandatory Use
of Contractor Performance System
AGENCY: Office of Procurement and Property Management, USDA.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Agriculture's (USDA)
Agriculture Acquisition Regulation (AGAR) to establish the National
Institutes of Health (NIH) Contractor Performance System as the single
USDA-wide automated performance evaluation system. AGAR regulations are
amended to identify that system and specify its mandatory use.
DATES: This rule is effective November 30, 2001.
FOR FURTHER INFORMATION CONTACT: Patrice K. Honda, (202) 720-8924.
SUPPLEMENTARY INFORMATION:
I. Background
II. Procedural Requirements
A. Executive Orders Nos. 12866 and 12988
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Small Business Regulatory Enforcement Fairness Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Background
The AGAR implements the Federal Acquisition Regulation (FAR) (48
CFR chapter 1) where further implementation is needed, and supplements
the FAR where coverage is needed for subject matter not covered by the
FAR. AGAR section 442.1502 currently provides that the heads of the
contracting activities are responsible for establishing past
performance evaluation procedures and systems as required by FAR
sections 42.1502 and 42.1503. USDA has identified a single automated
performance evaluation system (the National Institutes of Health
Contractor Performance System (hereinafter ``NIH CPS'')) to be used
USDA-wide and this rule modifies AGAR section 442.1502 to identify that
system and specify its mandatory use by all USDA contracting
activities.
In a Notice of Proposed Rulemaking (65 FR 54986, September 12,
2000), USDA announced that this proposed amendment to the AGAR was
available for public review and comment during a 60 day comment period.
One commenter, an employee of Department of Agriculture, submitted
comments to USDA on the proposed rule. The commenter objected to USDA
making the NIH CPS system mandatory. The commenter objected that the
system was lengthy, complicated, cumbersome, costly, not user-friendly,
and that local training was not provided. The commenter suggested that
USDA develop its own system. While the employee's agency declined to
support the position of the commenter, we have considered the comment
as from an individual. After careful consideration, USDA has determined
not to change the proposed rule. The NIH CPS provides a single uniform
system for evaluating contractor performance, and because of the number
of Federal agencies using the system, it has a very broad database
available for such evaluations. Design and development of a USDA system
would be costly and would not provide the broad database of information
afforded by the NIH. In this rulemaking document, USDA is finalizing
the proposed amendment to the AGAR.
II. Procedural Requirements
A. Executive Orders Nos. 12866 and 12988
USDA prepared a work plan for this regulation and submitted it to
the Office of Management and Budget (OMB) pursuant to Executive Order
No. 12866. OMB determined that the rule was not significant for the
purposes of Executive Order No. 12866. Therefore, the rule has not been
reviewed by OMB. USDA has reviewed this rule in accordance with
Executive Order No. 12988, Civil Justice Reform. The rule meets the
applicable standards in section 3 of Executive Order No. 12988.
B. Regulatory Flexibility Act
USDA reviewed this rule under the Regulatory Flexibility Act, 5
U.S.C. 601-611, which requires preparation of a regulatory flexibility
analysis for any rule which is likely to have significant economic
impact on a substantial number of small entities. USDA certifies that
this rule will not have a significant economic effect on a substantial
number of small entities, and, therefore, no regulatory flexibility
analysis has been prepared. USDA solicited comments from small entities
concerning parts affected by the rule in the Notice of Proposed
Rulemaking publicizing the proposed rule for comment (65 FR 54986,
September 12, 2000). No comments from small entities were received.
C. Paperwork Reduction Act
No information collection or recordkeeping requirements are imposed
on the public by this rule. Accordingly no OMB clearance is required by
the Paperwork Reduction Act, 44 U.S.C. Chapter 35 or OMB's implementing
regulations at 5 CFR part 1320.
D. Small Business Regulatory Enforcement Fairness Act
A report on this rule has been submitted to each House of Congress
and the Comptroller General in accordance with the Small Business
Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 801-808. This
rule is not a major rule for purposes of the Act.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, establishes requirements for Federal agencies to
assess the effects of their regulatory actions on State, local, and
tribal governments and the private sector. USDA has determined that
this rule does not contain a Federal mandate. USDA has also determined
that this rule would not significantly or uniquely affect small
governments. Accordingly, the rule is not subject to the requirements
of Title II of UMRA.
F. Executive Order 13132: Federalism
Executive Order 13132, Federalism (64 FR 43255, August 10, 1999),
imposes requirements in the development of regulatory policies that
have federalism implications. ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.''
USDA has determined that this rule does not have federalism
implications. It will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
The
[[Page 49867]]
rule will not impose substantial costs on States and localities.
Accordingly, this rule is not subject to the procedural requirements of
Executive Order 13132 for regulatory policies having federalism
implications.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments (65 FR 67249, November 9, 2000), imposes
requirements in the development of regulatory policies that have tribal
implications. Executive Order 13175 defines ``policies that have tribal
implications'' as those having ``substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.'' USDA has determined
that this rule does have tribal implications and, therefore, the
consultation and coordination requirements of Executive Order 13175 do
not apply to this rule.
List of Subjects in 48 CFR Part 442
Acquisition regulations, Government contracts, Government
procurement, Procurement.
For the reasons set out in the preamble, the Office of Procurement
and Property Management amends 48 CFR part 442 as set forth below:
PART 442--CONTRACT ADMINISTRATION
1. The authority citation for part 442 continues to read as
follows:
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
2. Revise section 442.1502 to read as follows:
442.1502 Policy.
The Contractor Performance System (CPS), developed by the National
Institutes of Health, is designated as the single USDA-wide system for
maintaining contractor performance/evaluation information. Use of the
CPS is mandatory. As a minimum, the CPS shall be accessed for
contractor past performance information as part of proposal evaluation
in accordance with FAR subpart 15.3, and information resulting from the
evaluation of contractor performance in accordance with FAR subpart
42.15 shall be entered into and maintained in this system. The CPS is a
part of the USDA Acquisition Toolkit which can be accessed from the
USDA Procurement Homepage at
http://www.usda.gov/procurement/.
Done at Washington, DC, this 24th day of September, 2001.
W.R. Ashworth,
Director, Office of Procurement and Property Management.
[FR Doc. 01-24352 Filed 9-28-01; 8:45 am]
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