[Federal Register Volume 81, Number 94 (Monday, May 16, 2016)]
[Rules and Regulations]
[Pages 30447-30448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11003]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 36
[FAC 2005-88; FAR Case 2015-018; Item IV; Docket No. 2015-0018;
Sequence No 1]
RIN 9000-AN10
Federal Acquisition Regulation; Improvement in Design-Build
Construction Process
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to implement section 814 of the
Carl Levin and Howard P. `Buck' McKeon National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2015 that requires the head of the
contracting activity to approve any determinations to select more than
five offerors to submit phase-two proposals for a two-phase design-
build construction acquisition that is valued at greater than $4
million.
DATES: Effective: June 15, 2016.
FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement
Analyst, at 202-501-1448, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat Division at 202-501-4755. Please cite FAC 2005-88, FAR Case
2015-018.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 80 FR 60833 on October 8, 2015, to implement section 814 of
the Carl Levin and Howard P. `Buck' McKeon NDAA for FY 2015, Public Law
113-291. Section 814 requires the head of the contracting activity,
delegable to a level no lower than the senior contracting official, to
approve any determinations to select more than five offerors to submit
phase-two proposals for a two-phase design-build construction
acquisition that is valued at greater than $4 million. Five respondents
submitted comments on the proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. One change was made to the rule as a
result of those comments. A discussion of the comments is provided as
follows:
Comment: One respondent requested that the maximum number of
offerors allowed to submit phase-two proposals be limited to three of
the most highly qualified offerors.
Response: The scope of this rule is limited to the implementation
of Section 814 of the FY 2015 NDAA, which requires a higher approval
authority when selecting more than five offerors to participate in
Phase 2 of a design-build acquisition. Identifying the ideal number of
contractors for participation in Phase 2 is beyond the scope of the
case and the statute that is being implemented.
Comment: Two respondents recommended that the rule be revised to
add a reporting requirement for those instances when more than five
offerors are selected to submit phase-two proposals.
Response: The scope of this rule is limited to the implementation
of Section 814 of the FY 2015 NDAA. Adding a public reporting
requirement is beyond the scope of the case and the statute that is
being implemented.
Comment: One respondent recommended that the rule be revised to
include a requirement that the senior contracting official's approval
be documented in the contract file.
Response: The requirement to document the contract file was in the
proposed rule at FAR 36.303-1(a)(4). In civilian agencies, for
paragraph (a)(4) of FAR section 36.303-1, the senior contracting
official is the advocate for competition for the procuring activity,
unless the agency designates a different position in agency procedures.
The approval shall be documented in the contract file.
Comment: One respondent recommended that the FAR be revised to
limit the use of single-step design-build procurements by requiring the
use of two-step design-build procurement process for all design-build
procurements above $4 million.
Response: The recommendation is beyond the scope of the case and
the statute that is being implemented.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is summarized as follows:
[[Page 30448]]
This rule implements section 814 of the Carl Levin and Howard P.
`Buck' McKeon National Defense Authorization Act for Fiscal Year
2015. Section 814 is entitled Improvement in Defense Design-Build
Construction Process. Section 814 requires the head of the
contracting activity, delegable to a level no lower than the senior
contracting official, to approve any determinations to select more
than five offerors to submit phase-two proposals for a two-phase
design-build construction acquisition that is valued at greater than
$4 million.
No comments were received by the public comments in response to
the initial regulatory flexibility analysis. The number of design-
build construction awards is not currently tracked by the Federal
government's business systems. In Fiscal Year 2014, the Federal
Government awarded 3,666 construction awards to 2,239 unique small
business vendors. It is unknown what percentage of these contracts
involved design-build construction services.
This rule does not impose new recordkeeping or reporting
requirements. The new approval requirement for advancing more than
five contractors to phase two of a two-phase design-build selection
procedure only affects the internal operating procedures of the
Government. For acquisitions valued over $4 million, the head of the
contracting activity (HCA) is required to now make a determination
that it is in the best interest of the Government to select more
than five offerors to proceed to phase two. Any burden caused by
this rule is expected to be minimal and will not be any greater on
small businesses than it is on large businesses.
No alternative approaches were considered. The new approval
requirement for advancing more than five contractors to phase two of
a two-phase design-build selection procedure only affects the
internal operating procedures of the Government. It is not
anticipated that the proposed rule will have a significant economic
impact on small entities.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
V. Paperwork Reduction Act
The final rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subject in 48 CFR Part 36
Government procurement.
Dated: May 5, 2016.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 36 as set forth
below:
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
1. The authority citation for 48 CFR part 36 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
0
2. Amend section 36.303-1 by revising paragraph (a)(4) to read as
follows:
36.303-1 Phase One.
(a) * * *
(4) A statement of the maximum number of offerors that will be
selected to submit phase-two proposals. The maximum number specified in
the solicitation shall not exceed five unless the contracting officer
determines, for that particular solicitation, that a number greater
than five is in the Government's interest and is consistent with the
purposes and objectives of the two-phase design-build selection
procedures. The contracting officer shall document this determination
in the contract file. For acquisitions greater than $4 million, the
determination shall be approved by the head of the contracting
activity, delegable to a level no lower than the senior contracting
official within the contracting activity. In civilian agencies, for
this paragraph (a)(4), the senior contracting official is the advocate
for competition for the procuring activity, unless the agency
designates a different position in agency procedures. The approval
shall be documented in the contract file.
* * * * *
[FR Doc. 2016-11003 Filed 5-13-16; 8:45 am]
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