The proposed rule published in today’s Federal Register creates a new database called the “Federal Awardee Performance and Integrity Information System,” or FAPIIS for short. Contracting officers will be required to use this centralized database when making contract and task order awards.

The timing of the proposal couldn’t be better. Last month, acquisition officials answered some tough questions from Congress about how they use — or don’t use — past performance information. The hearings were prompted by two damning Government Accountability Office reports.

In April, GAO reported contracting officials didn’t use the Past Performance Information Retrieval System because its information was outdated, incomplete and unreliable. A May GAO report found contracting officers didn’t tie performance to the award fees paid to contractors for good work.

The proposed FAPIIS database aims to address some of the issues regarding past performance information by tying together information from two existing databases — the Excluded Parties List System and Past Performance Information Retrieval System — and creating  new reporting requirements for government officials and contractors.

Under the proposed rule:

• Contracting officers will have to report any contract termination for default and any “determination of non-responsibility.” A determination of non-responsibility means the contractor isn’t a responsible vendor because of poor past performance, a lack of integrity or a lack of business ethics.
• Suspension and debarment officials will have to submit any administrative agreement reached with a contractor to avoid suspension or debarment from government contracting.
• Contractors with contracts and grants totaling more than $10 million will also have to report on any administrative proceedings against them, in addition to civil and criminal proceedings.

The council will accept comments on the proposed rule until Oct. 5.

One memo directs agencies on how to manage the multi-sector workforce. This memo states that agencies don’t have a handle on how contractor employees are used in their offices. It orders agencies to:

• Coordinate their program, human capital, acquisition and finance offices to strategically plan for outsourcing.
• Conduct a pilot program to test multi-sector workforce management plans
• Develop guidelines to insource inherently governmental functions, work that closely supports those functions and work that could be more cheaply performed by federal employees.

A second memo orders agencies to review existing contracts and acquisition practices to “develop a plan that will save 7 percent of baseline contract spending by the end of FY 2011″ and to “reduce by 10 percent the share of dollars obligated in FY 2010 under new contract actions that are awarded with high-risk contracting authorities,” such as cost-reimbursement contracts.  The hope is to save $40 billion governmentwide.

The final memo outlines new a Federal Acquisition Regulation to capture and share more past performance information about government contractors.

OMB is holding a news conference on the new guidance shortly. We’ll have more details for you later on today at FederalTimes.com.

Nonetheless: In the next five days, the Obama administration is probably going to release a more detailed 2010 budget proposal, its cybersecurity review, and the details of the bank “stress tests.”

Busy week. The details of the stress tests have been slowly leaking out — Citigroup and Bank of America both need more capital — and it’s an open secret that the cybersecurity review will call for a big White House role in cybersecurity. But it will be interesting to dig into the specifics. And, of course, there’s the budget, which will surely set off a political firestorm on Capitol Hill. (We’ll have full coverage of the budget after it’s released on Thursday.)

The president already announced plans to undo the “conscience rule,” one of most controversial regulations.

And today another rule met its end: Interior Secretary Ken Salazar announced that he’s seeking the end of the “mountaintop mining” rule that allowed coal companies to dump the “fill” — the leftover rocks from mining — in streams.

“We’re cleaning up a major misstep from the previous administration,” Salazar said today at a press conference. “This was bad public policy… it simply doesn’t pass muster.”

Technically, the rule isn’t gone yet. Interior asked the Justice Department to file a pleading in the U.S. District Court; the suit will claim that the regulation has serious legal deficiencies, Salazar said. The courts could then formally strike down the rule.

That verdict would mean coal companies will once again be governed under a 1983 rule, approved during the Reagan administration, which prohibits dumping within 100 feet of streams.

Salazar said the move was largely symbolic, because many states are still using the 1983 rule (coal mining is regulated at the state level). Only Tennessee decided to adopt last year’s regulation.

..a lack of information is one of the most significant factors that limit the FDA’s ability to identify and properly act on safety concerns regarding dietary supplements and foods with added dietary ingredients.

I think there’s an important point to draw from this report. We talk a lot about the FDA’s budget and staffing woes. And the agency is certainly underfunded — you can’t expect the FDA to properly regulate foreign food producers when it has less than a half-dozen foreign offices.

But I think we’re also learning that the FDA does a poor job gathering and analyzing data.

We saw this during the peanut recall last month: The FDA didn’t even know Peanut Corporation of America had a facility in Texas, nor did it know the company’s products had repeatedly tested positive for salmonella.

We saw it during last year’s salmonella outbreak, when the FDA struggled to trace tainted produce back to farms in Mexico. And we’re seeing it again now with GAO’s report on dietary supplements.

The FDA has to regulate two huge global industries. It can’t possibly hope to inspect every food/drug producer on an annual basis — not unless its staff grows exponentially. But if the agency is going to build a risk-based inspection system, it needs to do a much better job with data collection.

Google, for example, can identify a flu outbreak up to two weeks before the Centers for Disease Control identifies it. How? By aggregating search data: When lots of people in the same city or state start searching for “flu” and other related keywords, there’s an outbreak starting.

That’s not to say ensuring food and drug safety is as simple as analyzing search keywords. Obviously it’s not. But the FDA needs to think about its own creative ways to analyze data. Are certain food producers riskier than others — based on what they produce, where they’re located, how they’ve performed in the past? Are clusters of prescription drug users reporting similar symptoms?

The Internet makes it incredibly easy to gather and analyze huge volumes of data — but only if agencies decide what they want to analyze.

The announcement came after months of frantic “midnight regulation” by federal agencies. And it’s obviously intended to block new rules left unfinished by the Bush administration.

But will it affect some of the most controversial Bush-era regulations? I’ve been digging through old copies of the Federal Register — a fun way to spend the afternoon, I assure you — and the answer is a resounding “no.” Some of the most controversial rules are already in effect.

Wondering which ones? The (incomplete) list is after the jump.

• The “conscience rule,” which allows workers at health care facilities — doctors, nurses, pharmacists — to refuse to help provide services they find morally objectionable. This one was really a “midnight” regulation: It took effect on Jan. 18, just 48 hours before Bush left office.
• The “trucker rule,” which allows truckers to drive 11 consecutive hours (up from 10) and 60 hours per week. Public safety groups say that’s too many.
• The commercial oil shale program. The Bureau of Land Management opened two million acres of public land in Western states for oil shale development. It’s a controversial process: Nobody’s sure if large-scale oil shale production is commercially viable, and extracting oil from shale creates a lot of pollution. This one took effect on Jan. 17.
• An Interior Department rule that weakens the Endangered Species Act. Agencies no longer have to consult scientists to find out if big construction projects — like highways or dams — threaten endangered species.

The Obama administration will probably undo some of these controversial regulations. But that will require new regulations — so it’ll be a few months.

The memo tells agency heads not to submit any new regulations (proposed or final) until they can be reviewed by a Cabinet official appointed by President Obama. It also orders agencies to withdraw any regulations not yet published in the Federal Register.

And it advises them to delay implementing any final regulations that have not yet taken effect — an effort to delay the dozens of Bush-era “midnight regulations.”

This is not unprecedented: Former White House chief of staff Andrew Card issued a similar memo when President Bush took office in 2001.

More details tomorrow as we follow up on this.

Out.

The spokeswoman didn’t expand on what “respectfully dispose” means, so your guess is as good as ours.

The portraits will be replaced by the official photos of President Obama and Vice President Biden as soon as prints become available, which probably means most offices won’t see these smiling faces until March, according to GSA.

In.	Also in, but it probably will not be this photo as this is not his official vice presidential photo.

Cass Sunstein, a Harvard University law professor and Barack Obama’s pick to head OIRA.

We’ll profile him in next Monday’s Federal Times — like I did this week with Nancy Killefer, Obama’s new chief performance officer — but a few early thoughts:

Sunstein is a law professor at Harvard University; before that, he taught at the University of Chicago. He’s an old friend of the president-elect from his UChicago teaching days. And he’s written extensively on government regulation, including his most recent book, Nudge.

The book makes the case for what Sunstein calls “libertarian paternalism.” You might think that sounds like an oxymoron. But Sunstein, and his co-author, UChicago professor Richard Thaler, say it offers a “third way,” something between being simply pro- or anti-regulation.

In many domains, including environmental protection, family law, and school choice, we will be arguing that better governance requires less in the way of government coercion and constraint, and more in the way of freedom to choose. If incentives and nudges replace requirements and bans, government will be both smaller and more modest.

So what’s a “nudge”?

Take the problem of retirement plans. Many employers are phasing out their pension plans, and most Americans don’t put enough money into their 401(k)s. To fix this, the authors suggest Congress pass a law making 401(k) plans “opt-out” rather than “opt-in” — your employer automatically enrolls you, unless you request otherwise.

You’re still free to decide whether or not to save for retirement. But the government “nudges” you towards saving.

But how does this apply to regulatory agencies? In some cases, it’s clear. The authors support a “cap-and-trade” system to combat climate change. The government would auction a certain number of “pollution credits,” and companies would need to buy enough credits to cover their carbon emissions. Light polluters could sell their credits to heavier producers, creating both a disincentive to pollute and an incentive to stop polluting.

Again, “libertarian paternalism”: Companies are free to pollute, but the government “nudges” them towards less pollution.

(FYI, the president-elect supports a similar idea.)

It’s less clear how Sunstein feels about areas of regulation like occupational safety. The authors deal with this only briefly, at the end of their book, noting that many occupational safety laws are not libertarian — an employee cannot trade his right to worker’s compensation or protection from asbestos in exchange for a higher salary.

We agree that flat bans are justified in some cases, but they raise distinctive concerns, and, in general, we prefer interventions that are more libertarian and less intrusive.

What does all this mean for OIRA? You’ll have to pick up the paper next Monday…

But Federal Times has learned that the department has decided to postpone the implementation of that requirement until at least Feb. 20 due to a lawsuit filed by five industry groups.

Lawrence Lorber, an attorney for the plaintiffs in the case, which includes the U.S. Chamber of Commerce, tells us that the government was responding to the plaintiffs request for a stay in the rule’s implementation.

More to come.