Federal Acquisition Regulation; Improvement in Design-Build Construction Process, 30447-30448 [2016-11003]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[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]
 BILLING CODE 6820-EP-P