Department of Homeland Security Acquisition Regulation; One-Step Turnkey Design-Build Contracts for United States Coast Guard (HSAR Case 2007-002), 38548-38549 [E7-13646]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 72, Number 134 (Friday, July 13, 2007)]
[Proposed Rules]
[Pages 38548-38549]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-13646]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

48 CFR Part 3036

[Docket No. DHS-2007-0024]
RIN 1601-AA44


Department of Homeland Security Acquisition Regulation; One-Step 
Turnkey Design-Build Contracts for United States Coast Guard (HSAR Case 
2007-002)

AGENCY: Department of Homeland Security.

ACTION: Proposed rule with requests for comments.

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

SUMMARY: The Department of Homeland Security (DHS) is proposing to 
amend the Department of Homeland Security Acquisition Regulation (HSAR) 
to incorporate the delegation of turnkey design-build authority from 
the Secretary of Homeland Security to the United States Coast Guard. 
The rule is necessary to implement changes resulting from section 205 
of Public Law 109-241.

DATES: Submit comments by August 13, 2007.

ADDRESSES: You may submit comments, identified by Docket Number DHS-
2007-0024, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: Kathy.Strouss@dhs.gov. Include the docket number 
in the subject line of the message.
     Mail: Department of Homeland Security, Office of the Chief 
Procurement Officer, Acquisition Policy and Legislation, ATTN: Kathy 
Strouss, 245 Murray Drive, Bldg. 410 (RDS), Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: Kathy Strouss, Department of Homeland 
Security, Office of the Chief Procurement Officer, Acquisition Policy, 
(202) 447-5300.

SUPPLEMENTARY INFORMATION:
I. Public Participation
II. Background and Purpose
III. Discussion of Proposed Rule
IV. Regulatory Analyses
    A. Executive Order 12866 Assessment
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. Executive Order 13132: Federalism
    F. Executive Order 12630: Governmental Actions and Interference 
With Constitutionally Protected Property Rights
    G. Executive Order 12988: Civil Justice Reform
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    J. Executive Order 13211: Energy Effects
    K. National Environmental Policy Act

I. Public Participation

    DHS invites interested persons to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. DHS also invites comments that relate to the economic, 
environmental, or federalism affects that might result from this 
proposed rule. Comments that will provide the most assistance to DHS in 
developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to https://www.regulations.gov, including any 
personal information provided.
    You may submit your comments and material by one of the methods 
specified in the ADDRESSES section. Please submit your comments and 
material by only one means. If you submit them by mail, submit them in 
an unbound format, no larger than 8.5 by 11 inches, suitable for 
copying and electronic filing. If you want DHS to acknowledge receipt 
of comments by mail, include with your comments a self-addressed, 
stamped postcard that includes the docket number for this rulemaking. 
We will stamp the date on the postcard and mail it to you.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov.

II. Background and Purpose

    Currently, the Federal Acquisition Regulation (FAR) provides for 
Two-Phase Design-Build Selection Procedures. These procedures are used 
when the Government determines it is appropriate to combine design and 
construction in a single contract with one contractor. See 48 CFR 36.3, 
``Two-Phase Design-Build Selection Procedures.'' Since the FAR does not 
allow for consideration of cost or price related factors until the 
second phase, the Two-Phase procedures require proposal evaluation at 
two separate points. See 48 CFR 36.303-2(b)). The existing two-phase 
selection procedures, whether one solicitation for both phases or two 
solicitations issued sequentially, require evaluation of technical 
approach and technical qualifications in phase one and evaluation of 
technical factors (such as design concepts or proposed solutions and 
price) in phase two. These procedures result in substantial completion 
time for both interested firms and the Government.
    The proposed rule amends the HSAR to allow for one-step turnkey 
design-build contracting for United States Coast Guard facilities. This 
one-step design-build contracting method results in a single contractor 
for both design and construction services. The one-step turnkey 
selection procedures for design-build consist of a single price and 
technical evaluation for a single, firm fixed-price contract with one 
contractor. This approach, which works well for less complex 
facilities' construction projects requiring little design, provides for 
shortened procurement and execution stages when compared to the 
existing two-phase selection procedures.

III. Discussion of Proposed Rule

    The proposed rule adds a new section and subpart to the HSAR at 48 
CFR 3036.104-90. DHS is amending the HSAR to implement changes 
resulting from section 205 of Public Law 109-241 (regarding one-step 
turnkey selection procedures for design-build contracts of the United 
States Coast Guard) and to incorporate the delegation of turnkey 
design-build authority from the Secretary of Homeland Security to the 
United States Coast Guard.

IV. Regulatory Analyses

A. Executive Order 12866 Assessment

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
and does not require an assessment of potential costs and benefits 
under section 6(a)(3) of that Order. The Office of Management and 
Budget has not reviewed it under that Order. The proposed rule reduces 
proposal submittal requirements for Design-Build contracts through a 
one-step turnkey

[[Page 38549]]

selection process and, therefore, will not result in any additional 
cost to the government or private sector.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), DHS has 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    The less complex one-step turnkey selection procedures under this 
proposed rule would encourage small businesses to participate in the 
source selection process being implemented for United States Coast 
Guard Design-Build contracts. Therefore, the Department of Homeland 
Security certifies under 5 U.S.C. 605(b) that this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities. If you think that your business, organization, or 
governmental jurisdiction qualifies as a small entity and that this 
rule would have a significant economic impact on it, please submit a 
written comment to the contact information previously identified in 
this proposed rule. In your comment, explain why you think it qualifies 
and how and to what degree this rule would economically affect it.

C. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

D. Paperwork Reduction Act

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. Executive Order 13132: Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this proposed rule 
under that Order and have determined that it does not have implications 
for federalism.

F. Executive Order 12630: Governmental Actions and Interference with 
Constitutionally Protected Property Rights

    This proposed rule would not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

G. Executive Order 12988: Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

I. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

J. Executive Order 13211: Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.

K. National Environmental Policy Act

    The Department of Homeland Security considered the proposed rule 
under Management Directive 5100.1, Environmental Planning Program, that 
provides DHS the implementing policy for complying with the National 
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). DHS has 
determined that this rulemaking would not individually or cumulatively 
have a significant effect on the human environment and, therefore, 
neither an environmental assessment nor an environmental impact 
statement is required. This rulemaking is among the category of actions 
included in Categorical Exclusion A3 for promulgation of rules of an 
administrative or procedural nature.

 List of Subjects in 48 CFR Part 3036

    Government procurement.

    Dated: July 10, 2007.
Elaine C. Duke,
Chief Procurement Officer.
    Accordingly, DHS proposes to amend 48 CFR part 3036 as follows:
    1. The authority citation for 48 CFR part 3036 continues to read as 
follows:

    Authority: 41 U.S.C. 418b(a) and (b).

PART 3036--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    2. Add subpart 3036.1 to read as follows:

Subpart 3036.1 General


3036.104  Policy.


3036.104-90  Authority for one-step turn-key design-build contracting 
for the United States Coast Guard (USCG).

    The Head of the Contracting Activity (HCA) of the U.S. Coast Guard 
may use one-step turnkey selection procedures to enter into fixed-price 
design-build contracts in accordance with 14 U.S.C. 677.

 [FR Doc. E7-13646 Filed 7-12-07; 8:45 am]
BILLING CODE 4410-10-P