1. The administrative agencies that control this regulation: The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration and subsequently, the Small Business Administration. This regulation would affect me as a small business owner because it would change the way all levels of government do business with privately -held small businesses, such as mine.

2. This is a proposal to amend the Federal Acquisition Regulation (FAR) to include government-wide, standardized past performance evaluation factors and ratings categories, and that this past performance information be entered into the Contractor Performance Assessment Reporting System (CPARS).

3. My comment:

While I concur that the FAR should be amended in this way, I believe that the current proposal is too vague to be effective. Standardizations tend to group things into categories that are either “black” or “white”, causing a great injustice to those who would only fit in areas of “gray”. Therefore, I suggest a thorough investigation into the actual effects that the proposal would have on all businesses- large and small, experienced and novel, old and new, etc. I also believe this proposal should not be enacted until real evidence, showing complete equality and fairness among all businesses, is presented to and reviewed by the public. 4. This expires on November 5, 2012

5.

A. Based on the Administrative Procedure Act of 1946, if I choose, I would legally be entitled to
B. The first ground on which to challenge an agency rule is that it is arbitrary, capricious, an abuse of discretion, or in violation of some other law. This standard is generally applied to informal rulemaking and simply requires the agency to show evidence to support the proposed rule.

A second theory for challenging an agency’s regulation is that the regulation is unsupported by substantial evidence. This substantial evidence test is applied in the review of formal and hybrid rulemaking. Where the arbitrary and capricious standard simply requires some proof or basis for the regulation, substantial evidence requires that more convincing evidence exist in support of the regulation than against it.
A third ground on which to challenge an agency’s regulation involves the rule that a regulation can be set aside if the agency did not comply with the APA requirements of notice, publication, and public comment or input. The procedures for rulemaking must be followed in order for the regulatory process and resulting rules to be valid. An agency that seeks public comment for the purposes of draft- ing regulations cannot then turn the proposed regulations into agency rules after the comment period. The promulgated rules must be the result of the proceedings. Another basis for challenging a regulation is that the regulation is unconstitutional. Many chal- lenges based on constitutional grounds deal with regulations that give an agency authority to search records or that impose discriminatory requirements for licens- ing professionals.
Another theory for challenging a regulation in court is ultra vires, a Latin term meaning “beyond its powers.” An ultra vires regulation is one that goes beyond the authority given to the agency in its enabling act. Although most agencies stay clearly within their authority, if an agency tries to change the substance and purpose of the enabling act through regulation, the regulations would be ultra vires.

C. The Substantial Evidence Standard would be the best legal defense to use if I wanted to have this regulation overturned because it requires that “more convincing evidence exists in support of the regulation…” My comment focused on the fact that the proposal to amend the FAR, as it is currently written, is too vague to ensure all entities it implicates will be given an equally fair chance to do business with the government. This legal defense would force the proposing agencies to support this proposal with real facts and other data showing its complete fairness.