[Federal Register Volume 61, Number 153 (Wednesday, August 7, 1996)]
[Proposed Rules]
[Pages 41212-41213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20012]



[[Page 41211]]


_______________________________________________________________________

Part II

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Part 1 et al.



Federal Acquisition Regulations: Two-Phase Design Build Selection 
Procedures; Requirement for Certified Cost or Pricing Data, Exception; 
Proposed Rules

  Federal Register / Vol. 61, No. 153 / Wednesday, August 7, 1996 / 
Proposed Rules  

[[Page 41212]]



DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 5, 14 and 36 -

[FAR Case 96-305]-
RIN 9000 AH17


Federal Acquisition Regulation; Two-Phase Design Build Selection 
Procedures

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement Section 4105 of the Fiscal 
Year 1996 Defense Authorization Act which authorizes the use of two-
phase design-build construction procedures. This regulatory action was 
not subject to Office of Management and Budget review under Executive 
Order 12866, dated September 30, 1993. This is not a major rule under 5 
U.S.C. 804.

DATES: Comments should be submitted on or before October 7, 1996, to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (VRS), 18th & F 
Streets, NW, Room 4037,-Washington, DC 20405.
    Please cite FAR case 96-305 in all correspondence related to this 
case.

FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in 
reference to this FAR case. For general information, contact the FAR 
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 96-305.

SUPPLEMENTARY INFORMATION:

A. Background-

    This proposed rule amends FAR Part 36 to implement Section 4105 of 
the Fiscal Year 1996 Defense Authorization Act. Section 4105 adds 
Section 2305a of Title 10 U.S.C. and Section 303M of the Federal 
Property and Administrative Services Act of 1949 (41 U.S.C. 253m). 
Comments were received in response to a Notice of Proposed Rulemaking 
that was published on February 21, 1996 (61 FR 6760). The proposed rule 
details considerations that would be used by a contracting officer to 
determine whether to use the two-phase design-build method and 
describes the selection procedures. As required by the statute, the 
proposed rule limits the number of proposals to be considered in the 
second phase to no more than five, unless the agency determines that a 
greater number is in the Government's interest and is consistent with 
the purposes and objectives of two-phase design-build contracting.

B. Regulatory Flexibility Act-

    The proposed changes may have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because the rule 
reduces the cost of proposal preparation for those offerors not 
selected for Phase Two. An Initial Regulatory Flexibility Analysis 
(IRFA) has, therefore, been prepared. A copy of the IRFA will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the FAR 
Secretariat. Comments from small entities concerning the affected 
subpart will be considered in accordance with Section 610 of the Act. 
Such comments must be submitted separately and cite 5 U.S.C. 601, et 
seq., (FAR Case 96-305) in correspondence.

C. Paperwork Reduction Act-

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose recordkeeping or information 
collection requirements, or collections of information from offerors, 
contractors, or members of the public which require the approval of the 
Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1, 5, 14 and 36

    Government procurement.

    Dated: July 31, 1996.
Edward C. Loeb,
Director, Federal Acquisition Division.-

    Therefore, it is proposed that 48 CFR Parts 1, 5, 14 and 36 be 
amended as set forth below:
    1. The authority citation for 48 CFR Parts 1, 5, 14 and 36 
continues to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 1-FEDERAL ACQUISITION REGULATIONS SYSTEM


1.106  [Amended]

    2. Section 1.106 is amended by revising the entry for ``36.302'' in 
the OMB approval table to read ``36.213-2''.

PART 5-PUBLICIZING CONTRACT ACTIONS

    3. Section 5.204 is amended by revising the first sentence to read 
as follows:


5.204  Presolicitation notices.

    Contracting officers shall publicize presolicitation notices in the 
CBD (see 15.404 and 36.213-2). * * *

PART 14--SEALED BIDDING


14.202-1  [Amended]

    4. Section 14.202-1 is amended by revising the parenthetical 
following the first sentence in paragraph (a) to read ``(For 
construction contracts, see 36.213-3(a).)''
    5. Section 14.211 is amended by revising the first sentence of 
paragraph (a) to read as follows:


14.211  Release of acquisition information.

    (a) Before solicitation. Information concerning proposed 
acquisitions shall not be released outside the Government before 
solicitation except for presolicitation notices in accordance with 
14.205-4(c) or 36.213-2, or longrange acquisition estimates in 
accordance with 5.404, or synopses in accordance with 5.201. * * *
* * * * *

PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    6. Section 36.102 is amended by adding, in alphabetical order, the 
definitions ``Design,'' ``Design-bid-build,'' ``Design-build'' and 
``Two-phase Design-build'' to read as follows:


36.102  Definitions.

* * * * *
    Design, as used in this part, means defining the construction 
requirement (including the functional relationships and technical 
systems to be used, such as architectural, environmental, structural, 
electrical, mechanical, and fire protection), producing the technical 
specifications and drawings, and preparing the construction cost 
estimate.
    Design-bid-build, as used in this part, means the traditional 
method of construction contracting, where design and construction are 
sequential and contracted for separately with two contracts and two 
contractors.-

[[Page 41213]]

    Design-build, as used in this part, means combining design and 
construction in a single contract with one contractor.
* * * * *
    Two-phase design-build, as used in this part, is one type of 
design-build construction contracting in which a limited number of 
offerors (normally five or fewer) is selected during Phase One to 
submit detailed proposals for Phase Two (See subpart 36.3).
    7. Section 36.104 is added to read as follows:


36.104  Policy.

    (a) Contracting officers are authorized to use any of the following 
methods, as appropriate, when contracting for construction:-
    (1) Design-bid-build;
    (2) Design-build, including----
    (i) Two-phase design-build, as authorized by 10 U.S.C. 2305a and 41 
U.S.C. 253m (see subpart 36.3);
    (ii) For DOD, the design-build process described in 10 U.S.C. 
2862;--
    (3) Any other acquisition process authorized by law.
    (b) When awarding contracts using the methods in paragraph (a) of 
this section, contracting officers may use the procedures established 
in this and other parts, including parts 14 and 15.


36.213  Special procedures for sealed bidding in construction 
contracting.

    8. A new section heading for 36.213 is added to read as set forth 
above.


36.213-1 through 36.213-4  [Redesignated from 36.301 through 36.304]

    9. 36.301 through 36.304 are redesignated as 36.213-1 through 
36.213-4 respectively.


36.214  Special procedures for price negotiation in construction 
contracting.

    10. 36.402 is redesignated as 36.214 and the heading is revised to 
read as set forth above.


36.215  Special procedures for cost-reimbursement contracts for 
construction.

    11. 36.403 is redesignated 36.215 and the heading is revised to 
read as set forth above.

Subpart 36.3-Two-phase Design-build Contracting for Construction 
[Revised]

    12. Subpart 36.3 is revised to read as follows:
Subpart 36.3--Two-Phase Design-Build Contracting for Construction.
Sec.
36.300  Scope of subpart.
36.301  Use of two-phase design-build method.
36.302  Scope of work.
36.303  Procedures.
36.303-1  Phase one.
36.303-2  Phase two.


36.300  Scope of subpart.

    This subpart prescribes policies and procedures for the use of the 
two-phase design-build method for construction contracting authorized 
by 10 U.S.C. 2305a and 41 U.S.C. 253m.


36.301  Use of two-phase design-build method.

    (a) During formal or informal acquisition planning (see part 7), if 
considering the use of two-phase design-build, the contracting officer 
shall conduct the evaluation in paragraph (b) of this section.
    (b) The two-phase design-build method shall be used when the 
contracting officer determines that this method is appropriate, based 
on the following----
    (1) Three or more offers are anticipated;
    (2) A substantial amount of design work will be performed by 
offerors before developing price or cost proposals, that may result in 
offerors incurring substantial expenses in preparing offers; and--
    (3) The following criteria have been considered:--
    (i) The extent to which the project requirements have been 
adequately defined;
    (ii) The time constraints for delivery of the project;-
    (iii) The capability and experience of potential contractors;--
    (iv) The suitability of the project for use of the two-phase 
selection procedures;
    (v) The capability of the agency to manage the two-phase selection 
process; and
    (vi) Other criteria established by the head of the contracting 
activity.


36.302  Scope of work.

    The agency shall develop, either in-house or by contract, a scope 
of work that defines the project and states the Government's 
requirements. The scope of work may include criteria and preliminary 
design, budget parameters, and schedule or delivery requirements. If 
the agency contracts for development of the scope of work, the 
procedures in subpart 36.6 shall be used.


36.303  Procedures.

    One solicitation may be issued covering both phases, or two 
solicitations may be issued in sequence. Proposals will be evaluated in 
Phase One to determine which offerors will submit proposals for Phase 
Two. One contract will be awarded using competitive negotiation.


36.303-1  Phase one.

    (a) Phase One of the solicitation(s) shall include---
    (1) The scope of work;
    (2) The phase-one evaluation factors including---
    (i) Technical approach (but not detailed design or technical 
information;--
    (ii) Specialized experience and technical competence;--
    (iii) Capability to perform;
    (iv) Past performance of the offeror's team (including the 
architect-engineer and construction members); and
    (v) Other appropriate factors (excluding cost or price related 
factors, which are not permitted in Phase One);
    (3) Phase-two evaluation factors; and
    (4) A statement of the maximum number of offerors that will be 
determined to be in the competitive range and invited to submit phase-
two proposals. The maximum number specified shall not exceed five 
unless the contracting officer determines, for the particular 
solicitation, that a number greater than five is in the Government's 
interest and is consistent with the purposes and objectives of two-
phase design-build contracting.
    (b) After evaluating phase-one proposals, the contracting officer 
shall determine the competitive range of most highly qualified offerors 
(not to exceed the maximum number specified in the solicitation in 
accordance with 36.303-1(a)(4) and request that only those offerors in 
the competitive range submit phase-two proposals. The requirement in 
15.609 that cost or price be considered in the determination of the 
competitive range does not apply.


36.303-2  Phase two.

    Phase Two of the solicitation(s) shall:
    (a) Be prepared in accordance with part 15, including phase-two 
evaluation factors, developed in accordance with 15.605, and
    (b) Require the submission of separate technical and price 
proposals, that shall be evaluated separately, in accordance with part 
15.

Subject 36.4--[Removed and Reserved]

    13. Subpart 36.4 is removed and reserved.

[FR Doc. 96-20012 Filed 8-6-96; 8:45 am]
BILLING CODE 6820-EP-P