[Federal Register Volume 69, Number 105 (Tuesday, June 1, 2004)]
[Rules and Regulations]
[Pages 30835-30837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12245]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 36, and 53

[FAR Notice 2004-N2]


Federal Acquisition Regulation; Supplemental Information to FAR 
Case 2000-608 for the Certification of the Regulatory Flexibility Act 
Statement for the New Standard Form 330, Architect-Engineer 
Qualifications (Consolidated Form)

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

ACTION: Notice of supplemental information.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (the Councils) have agreed on this 
supplemental information to the final rule, FAR Case 2000-608, New 
Consolidated Form for Selection of Architect-Engineer Contractors, 
published in the Federal Register at 68 FR 69227, December 11, 2003. 
This notice provides additional factual basis that applies only to the 
Regulatory Flexibility Act statement in the final rule. All other 
information remains unchanged.

DATES: Effective Date: June 1, 2004.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC, 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Cecelia Davis, Procurement Analyst, at (202) 219-
0202. Please cite FAR Notice 2004-N2.

SUPPLEMENTARY INFORMATION:

A. Background

    This notice provides additional factual basis for the certification 
to the Regulatory Flexibility Act statement provided in the final rule 
published in the Federal Register on December 11, 2003. This final rule 
amends the Federal Acquisition Regulation (FAR) by replacing the 
Standard Forms (SFs) 254 and 255 with the new streamlined SF 330. The 
SFs 254 and 255 have changed little since their introduction in 1975, 
although the variety of Architect-Engineer (A-E) services has greatly 
expanded and new technologies have dramatically changed the way A-E 
firms do business. The SF 330 merges the SFs 254 and 255 into a single 
streamlined form, expands essential information about qualifications 
and experience, reflects current A-E disciplines, experience types and 
technology, eliminates information of marginal value, permits 
limitations on submission length, and facilitates electronic usage. 
This rule's intent was to improve the A-E evaluation process. We 
published a notice on January 7, 2004, to change the effective date 
from January 12, 2004 to June 8, 2004.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to 
the final rule that was published in the Federal Register at 68 FR 
69227, December 11, 2003. This Federal Register notice is prepared to 
further support the Councils earlier determination that this rule does 
not have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act. The 
following information serves as the additional factual basis to support 
the certification in the final rule version:
    An Initial Regulatory Flexibility Act analysis was not performed 
because the proposed rule did not have a significant economic impact on 
a substantial number of small entities. After analyzing public 
comments, the Councils determined that this regulation would not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act. The Councils 
continue this determination and are now preparing this factual basis to 
support our earlier determination and to expand our discussion of the 
effects of the rule on small businesses. No small businesses 
specifically complained about the Regulatory Flexibility Act 
certification.
    The purpose of the SFs 254 and 255 has been to present A-E firms' 
qualifications for consideration in the award of Federal contracts. The 
Brooks A-E Act requires evaluation and selection of A-E firms based on 
qualifications including past performance prior to negotiating price. 
This rule amends the Federal Acquisition Regulation (FAR) by replacing 
the SFs 254 and 255 with the new streamlined SF 330. The SFs 254 and 
255 have changed little since their introduction in 1975, although the 
variety of A-E services has greatly expanded and new technologies have 
dramatically changed the way A-E firms do business. The SF 330 merges 
the SFs 254 and 255 into a single streamlined form, expands essential 
information about qualifications and experience, reflects current A-E 
disciplines, experience types and technology, eliminates information of 
marginal value, permits limitations on submission length, and 
facilitates electronic usage. This rule's intent is to improve the A-E 
evaluation process.
    Overall the SF 330 requires less information than the SFs 254 and 
255, benefiting all businesses, especially small businesses. The 
following information has been deleted:
     Duplication of data on number of personnel by discipline.
     Work currently being performed for Federal agencies.
     List of all offices, their telephone numbers and the 
number of personnel in each.
     Revenue information for each of the last 5 years (now the 
last 3 years).
     Number of projects for each profile code.
     Thirty example projects (required on the SF 254).
     Profile of a firm's project experience expressed in 
specific dollar amounts (replaced with revenue ranges).
    Part I of the SF 330 is focused more on small businesses than the 
SF 255 because of its emphasis on the specific team of key individuals 
who will execute the contract requirements, rather than overall 
corporate experience. This important change is less of a barrier for 
new businesses (i.e., small businesses). New businesses need to 
demonstrate competency in their areas of expertise as required by the 
Brooks A-E Act.
    Currently, there are approximately 23,000 small A-E firms 
registered in the Central Contractor Registration (CCR) system that 
could apply for Federal Government A-E contracts. Of the one hundred 
and eighteen commenters, there were no specific objections to the 
Regulatory Flexibility Act statement. There were 7 small businesses and 
associations representing small businesses out of the 118 commenters

[[Page 30836]]

that identified some burden issues associated with the SF 330, such as 
the burden associated with converting automated databases. The rule 
does not require small businesses to maintain a database and it also 
does not require them to purchase software to fill out the form. Many 
firms have done so in the past for their convenience. There are at 
least seven firms that will continue to offer value added SF 330 
software packages. These packages are available at varying prices based 
on their capabilities and some are being offered at very affordable 
prices. Once companies invest the initial cost for a software package, 
it is believed that the benefits will outweigh the initial cost. 
However, as stated earlier, this rule does not require the purchase of 
a software package to fill out the SF 330. The Government provides 
three formats of the SF 330 at no cost. The Government has added a 
Microsoft Word version of the form at the GSA website of Government 
forms, as a result of requests from A-E firms since the final rule was 
published.
    Seven software companies were contacted in order to conduct a cost 
analysis on a sampling of the available software packages. The results 
of the analysis are provided below.
     For a small firm with one user, the cost ranges from $249 
to $3,540 for SF 330 software with database backup, technical support 
and upgrades (provided by most software suppliers).
     For a small firm with one user, two companies offer SF 330 
software ``light'' versions (no database backup) at a cost of $165 to 
$199.
    One of the software companies claims to have sold between 750 to 
1,000 SF 330 software packages to small businesses in the $400 range. 
From the analysis above, it is clear that there are reasonably priced 
software packages available for small firms that wish to invest in a 
value added software package.
    The fact that the form is changed, means some changes will be 
needed in A-E firms' databases if they elect to continue using 
databases. It was brought to our attention that these indirect effects 
will happen. We did adjust the final rule version of the form to make 
it easier for firms, including small businesses, to perform database 
maintenance, and for the software companies who will be creating and 
marketing their updated software versions.
    A comment addressing databases stated that this process might cost 
hundreds of hours researching projects dating back 5 years because the 
SFs 254 and 255 are coded by discipline, function and profile codes, 
which were all changed on the SF 330. This is not an accurate 
statement. Projects are not coded by any of these parameters on the SF 
255, and only by profile codes on the SF 254. The same profile codes 
and function codes are available on the final version of the SF 330 
that were used with the SF 254, and additional profile codes and 
function codes (disciplines) were added, based on industry requests, to 
update the forms for advances in the A-E industry. These new codes are 
optional; firms need not use them. A firm that decides it is to the 
firm's advantage to use the new codes may do so. The firm can go back 
and reclassify all of its old projects, or only use the new codes 
selectively.
    One commenter stated that requiring 10 sample projects (that best 
illustrate the team's qualifications) could put a smaller firm at a 
disadvantage. This requirement was not changed from the SF 255. There 
is no additional burden because firms have to provide/maintain this 
information using either the old forms or the SF 330.
    A small disadvantaged business commenter said, ``We agree with the 
Council's general goals for creating a new form. The existing 254/255 
forms are in need of an update. The proposed SF 330 has merit; it is 
shorter, the format is computer-friendly, and there is greater 
opportunity to clearly define the roles and experiences of key staff 
and sub-consultants.'' This commenter also raised concerns related to 
the proposed cost in terms of database conversion. We believe many of 
these were resolved as a result of such public comments and are 
reflected in the final version of the SF 330.
    Another small business comment was that we limited competition by 
stressing ``team experience.'' Agencies have had the ability to 
evaluate team experience, which can be an important aspect of the A-E 
selection process. The old forms were not always clear about who worked 
on what project. The new form makes it clearer. However, agencies are 
not required to favor team experience, although team experience can be 
a way to demonstrate competency. One of the commenters addressed the 
requirement for an organizational chart and feels that this requirement 
is a positive one for small businesses. The commenter stated, ``As a 
minority business, we are frequently asked to participate in proposal 
development in order to meet a requirement for minority business 
participation, but then are never included in the actual project. 
Requiring the definition of the role of each sub-consultant enhances 
our chance of obtaining substantive meaningful work. This requirement 
is tremendously supportive of small businesses.''
    In addition to the indirect discretionary burdens of database 
software conversion, there are also paperwork burdens connected with 
filling out the forms. We did point out in the Paperwork Reduction Act 
statement in the proposed rule published at 66 FR 53314, October 19, 
2001, that the estimated burden hours to complete the new form were 
going to dramatically increase in comparison to the old forms. This was 
a result of the SFs 254 and 255 burden hours being grossly 
underestimated, and we discussed this in the proposed rule. We received 
some comments on this but not all small businesses commented on the 
Paperwork Reduction Act. Based on the public comments, some changes 
were made to reduce the burden, as outlined in this supplemental 
information.
    There are no additional reporting or recording requirements for 
firms under this rule. As stated earlier, firms will now provide less 
information. In addition, firms will now use one streamlined form 
instead of two outdated forms. The burden hours associated with the 
Paperwork Reduction Act for SF 330 have increased (see OMB Information 
Collection 9000-0157.) This is due to the fact that the old forms were 
drastically underestimated and the SF 330 has been estimated using 
realistic criteria.
    There are no known significant alternatives that will accomplish 
the objectives of the rule. No alternatives were proposed during the 
public comment period other than not changing the SFs 254 and 255. This 
is not an alternative because these forms are out of date, and not 
adequate for the Federal Government needs. We have extended the 
effective date from January 12, 2004 to June 8, 2004, to provide 
industry, especially small businesses more time to prepare for this 
change.
    The interagency committee that developed the SF 330 determined that 
maintaining the existing SFs 254 and 255 with little or no change was 
not a feasible alternative. SFs 254 and 255 have changed little since 
their introduction in 1975, and updating and streamlining were long 
overdue. The forms do not reflect current A-E services, technologies 
and professional disciplines. The forms do not reflect current Federal 
A-E procurement practices, such as the predominant use of indefinite 
delivery contracts and the emphasis in selections on team experience. 
Consolidation of the forms was warranted since the SF 254 is rarely 
used alone in current A-E selections, but

[[Page 30837]]

instead as a supplement to the SF 255. The forms contain duplicate 
information (such as the number of personnel by discipline on both the 
SFs 254 and 255) and information of marginal value (such as current 
Federal projects). More emphasis was needed on professional 
qualifications and relevant example projects, the two most important 
selection criteria. And finally, the current forms were not optimally 
designed for electronic usage. Minor revisions to the SFs 254 and 255 
would not have fulfilled these many objectives.
    The interagency committee realized that changing the SFs 254 and 
255 to a new form would require transition effort and costs. But the 
committee was also certain that, after the transition period, the final 
SF 330 would be more streamlined than the SFs 254 and 255, and would 
require considerably less effort for firms to complete.
    The public comments on the draft form, including those submitted by 
small businesses, were carefully considered by the committee in 
developing the final form. As a result, the final form contains many 
simplifications that reduce the burden on firms, such as the 
reinstatement of existing profile code and function code descriptions, 
the elimination of page numbers, the elimination of photos, the 
elimination of fees earned on past projects, and simplification of the 
matrix of key personnel involvement in the example projects. Small 
businesses cannot be exempted from use of the new form or from 
completion of certain portions of the form. This form is used for 
competitive acquisition of A-E services and all firms, including small 
businesses, must be considered on a uniform basis.

List of Subjects in 48 CFR Parts 1, 36, and 53

    Government procurement.

    Dated: May 25, 2004.
Laura Auletta,
Director, Acquisition Policy Division.
[FR Doc. 04-12245 Filed 5-28-04; 8:45 am]
BILLING CODE 6820-EP-S