[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11737-11739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4084]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 8, 16, and 36

[FAC 2005-01; FAR Case 2004-001; Item I]
RIN 9000-AK15


Federal Acquisition Regulation; Improvements in Contracting for 
Architect-Engineer Services

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

ACTION:  Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY:  The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to implement 
Section 1427(b) of the Services Acquisition Reform Act of 2003 (Title 
XIV of Pub. L. 108-136).

DATES:  Effective Date: March 9, 2005.
    Comment Date: Interested parties should submit comments to the FAR 
Secretariat at the address shown below on or before May 9, 2005 to be 
considered in the formulation of a final rule.

ADDRESSES:  Submit comments identified by FAC 2005-01, FAR case 2004-
001 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web Site: http://www.acqnet.gov/far/ProposedRules/proposed.htm. Click on the FAR case number to submit comments.

[[Page 11738]]

     E-mail: [email protected]. Include FAC 2005-01, FAR 
case 2004-001 in the subject line of the message.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-01, FAR 
case 2004-001, in all correspondence related to this case. All comments 
received will be posted without change to http://www.acqnet.gov/far/ProposedRules/proposed.htm, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT:  The FAR Secretariat at (202) 501-
4755, for information pertaining to status or publication schedules. 
For clarification of content, contact Mr. Michael O. Jackson, 
Procurement Analyst, at (202) 208-4949. Please cite FAC 2005-01, FAR 
case 2004-001.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 1427 of the Services Acquisition Reform Act of 2003 
prohibits architect-engineer services from being offered under multiple 
award Federal Supply Schedules or under Governmentwide task and 
delivery order contracts unless the services are performed under the 
direct supervision of a professional architect or engineer licensed, 
registered, or certified in the State, Federal District, or outlying 
area, in which the services are to be performed and are awarded using 
the procedures of the Brooks Architect-Engineer Act.
    FAR Subpart 2.1, Definitions, is revised to correct the statutory 
citation for architect-engineer contracts.
    FAR 8.403(c) is added to clarify that agencies whose requirements 
substantially, or to a dominant extent, specify performance of 
architect-engineer services (as defined in 2.101) must use the 
procedures at FAR Subpart 36.6.
    A new paragraph 16.505(a)(8) is added to stipulate that orders that 
substantially, or to a dominant extent, specify the performance of 
architect-engineer services (as defined in 2.101), must be issued using 
the procedures at FAR Subpart 36.6 and such services require the direct 
supervision of a professional architect or engineer who is licensed, 
registered, or certified in the State, Federal District or outlying 
area where the services are to be performed.
    FAR 36.600 is revised to make the policies and procedures in FAR 
Subpart 36.6 applicable to orders for architect-engineer services 
issued under FAR 16.505.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The interim rule is not expected to 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 
interim rule clarifies an already existing requirement that 
architecture and engineering services be procured using the procedures 
at FAR Subpart 36.6.
    Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. The Councils will consider comments from small entities 
concerning the affected FAR Parts 2, 8, 16, and 36 in accordance with 5 
U.S.C. 610. Interested parties must submit such comments separately and 
should cite 5 U.S.C 601, et seq. (FAC 2005-01, FAR case 2004-001, in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because Federal agencies require clear guidance to avoid 
inadvertently violating the requirements of the Brooks Architect-
Engineers Act and section 1427(b) of the Services Acquisition Reform 
Act of 2003 (Title XIV of Pub. L. 108-136.) Section 1427(b) went into 
effect November 24, 2003.
    However, pursuant to Public Law 98-577 and FAR 1.501, the Councils 
will consider public comments received in response to this interim rule 
in the formation of the final rule.

List of Subjects in 48 CFR Parts 2, 8, 16, and 36

    Government procurement.

    Dated: February 24, 2005
Rodney P. Lantier,
Director,Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 8, 16, and 36 as 
set forth below:
0
1. The authority citation for 48 CFR parts 2, 8, 16, and 36 is revised 
to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 2--DEFINITIONS OF WORDS AND TERMS


2.101  [Amended]

0
2. Amend section 2.101 in paragraph (b) in the definition ``Architect-
engineer services'' by removing ``40 U.S.C. 541'' and adding ``40 
U.S.C. 1102'' in its place.

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES

0
3. Amend section 8.403 by adding paragraph (c) to read as follows:


8.403  Applicability.

* * * * *
    (c) In accordance with section 1427(b) of Public Law 108-136, for 
requirements that substantially or to a dominant extent specify 
performance of architect-engineer services (as defined in 2.101), 
agencies--
    (1) Shall use the procedures at Subpart 36.6; and
    (2) Shall not place orders for such requirements under a Federal 
Supply Schedule.

PART 16--TYPES OF CONTRACTS

0
4. Amend section 16.505 by redesignating paragraph (a)(8) as (a)(9) and 
adding a new paragraph (a)(8) to read as follows:


16.505  Ordering.

    (a) * * *
    (8) In accordance with section 1427(b) of Public Law 108-136, 
orders placed under multi-agency contracts for services that 
substantially or to a dominant extent specify performance of architect-
engineer services, as defined in 2.101, shall--
    (i) Be awarded using the procedures at Subpart 36.6; and
    (ii) Require the direct supervision of a professional architect or 
engineer licensed, registered or certified in the State, Federal 
District, or outlying area, in which the services are to be performed.
* * * * *

[[Page 11739]]

PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
5. Revise section 36.600 to read as follows:


36.600  Scope of Subpart.

    This subpart prescribes policies and procedures applicable to the 
acquisition of architect-engineer services, including orders for 
architect-engineer services under multi-agency contracts (see 
16.505(a)(8)).
[FR Doc. 05-4084 Filed 3-8-05; 8:45 am]
BILLING CODE 6820-EP-S