Defense Federal Acquisition Regulation Supplement: Exemption From Design-Build Selection Procedures (DFARS Case 2018-D011), 4371-4373 [2019-02526]
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Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Rules and Regulations
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) does apply; however,
these changes to the DFARS do not
impose additional information
collection requirements to the
paperwork burden previously approved
under OMB Control Number 0704–0245,
titled: Defense Federal Acquisition
Regulation Supplement (DFARS) Part
247, Transportation and Related
Clauses.
List of Subjects in 48 CFR Parts 212,
247, and 252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 212, 247, and
252 are amended as follows:
■ 1. The authority citation for 48 CFR
parts 212, 247, and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
212.301
[Amended]
2. Amend section 212.301 by:
a. Removing paragraph (f)(xix)(D);
b. Redesignating paragraphs (f)(xix)(E)
through (H) as paragraphs (f)(xix)(D)
through (G), respectively;
■ c. In the newly redesignated
paragraph (f)(xix)(D), removing
‘‘247.574(d)’’ and adding ‘‘247.574(c)’’
in its place;
■ d. In the newly redesignated
paragraph (f)(xix)(E), removing
‘‘247.574(e)’’ and adding ‘‘247.574(d)’’
in its place;
■ e. In the newly redesignated
paragraph (f)(xix)(F), removing
‘‘247.574(f)’’ and adding ‘‘247.574(e)’’ in
its place; and
■ f. In the newly redesignated paragraph
(f)(xix)(G), removing ‘‘U.S’’ and adding
‘‘U.S.’’ in its place.
■
■
■
PART 247—TRANSPORTATION
247.574
[Amended]
3. Amend section 247.574 by:
a. Removing paragraph (c); and
b. Redesignating paragraphs (d)
through (f) as paragraphs (c) through (e),
respectively.
khammond on DSKBBV9HB2PROD with RULES
■
■
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Amend section 252.247–7023 by:
a. In the clause heading, removing the
date ‘‘(APR 2014)’’ and adding ‘‘(FEB
2019)’’ in its place;
■
■
VerDate Sep<11>2014
16:03 Feb 14, 2019
Jkt 247001
b. Redesignating paragraph (h) as
paragraph (i);
■ c. Adding a new paragraph (h); and
■ d. In the newly redesignated
paragraphs (i)(1) and (2), removing
‘‘paragraph (h)’’ and adding ‘‘paragraph
(i)’’ in both places;
■ e. In Alternate I:
■ i. In the clause heading, removing the
date of ‘‘(APR 2014)’’ and adding ‘‘(FEB
2019)’’ in its place;
■ ii. Redesignating paragraph (h) as
paragraph (i);
■ iii. In the newly redesignated
paragraphs (i)(1) and (2), removing
‘‘paragraph (h)’’ and adding ‘‘paragraph
(i)’’ in both places; and
■ iv. Adding a new paragraph (h).
■ f. In Alternate II—
■ i. In the clause heading, removing the
date of ‘‘(APR 2014)’’ and adding ‘‘(FEB
2019)’’ in its place;
■ ii. Redesignating paragraph (h) as
paragraph (i);
■ iii. In the newly redesignated
paragraphs (i)(1) and (2), removing
‘‘paragraph (h)’’ and adding ‘‘paragraph
(i)’’ in both places; and
■ iv. Adding a new paragraph (h).
The additions read as follows:
■
252.247–7023
by Sea.
Transportation of Supplies
*
*
*
*
(h) If the Contractor has indicated by
the response to the solicitation
provision, Representation of Extent of
Transportation by Sea, that it did not
anticipate transporting by sea any
supplies; however, after the award of
this contract, the Contractor learns that
supplies will be transported by sea, the
Contractor—
(1) Shall notify the Contracting Officer
of that fact; and
(2) Hereby agrees to comply with all
the terms and conditions of this clause.
*
*
*
*
*
Alternate I. * * *
*
*
*
*
*
(h) If the Contractor has indicated by
the response to the solicitation
provision, Representation of Extent of
Transportation by Sea, that it did not
anticipate transporting by sea any
supplies; however, after the award of
this contract, the Contractor learns that
supplies will be transported by sea, the
Contractor—
(1) Shall notify the Contracting Officer
of that fact; and
(2) Hereby agrees to comply with all
the terms and conditions of this clause.
*
*
*
*
*
Alternate II. * * *
*
*
*
*
*
(h) If the Contractor has indicated by
the response to the solicitation
Frm 00065
provision, Representation of Extent of
Transportation by Sea, that it did not
anticipate transporting by sea any
supplies, but the contractor learns after
the award of the contract that supplies
will be transported by sea, the
Contractor shall notify the Contracting
Officer of that fact.
*
*
*
*
*
252.247–7024
[Removed and Reserved]
4. Remove and reserve section
252.247–7024.
■
252.247–7025
[Amended]
5. Amend section 252.247–7025, in
the introductory text, by removing
‘‘247.574(d)’’ and adding ‘‘247.574(c)’’
in its place.
■
252.247–7026
[Amended]
6. Amend section 252.247–7026, in
the introductory text, by removing
‘‘247.574(e)’’ and adding ‘‘247.574(d)’’
in its place.
■
252.247–7027
[Amended]
7. Amend section 252.247–7027, in
the introductory text, by removing
‘‘247.574(f)’’ and adding ‘‘247.574(e)’’ in
its place.
■
[FR Doc. 2019–02528 Filed 2–14–19; 8:45 am]
*
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BILLING CODE 5001–01–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 236
[Docket DARS–2018–0039]
RIN 0750–AJ75
Defense Federal Acquisition
Regulation Supplement: Exemption
From Design-Build Selection
Procedures (DFARS Case 2018–D011)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule to
amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2018 that provides an exemption
from design-build selection procedures
for contracts that exceed $4 million.
DATES: Effective February 15, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Heather Kitchens, telephone 571–372–
6104.
SUMMARY:
SUPPLEMENTARY INFORMATION:
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4372
Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Rules and Regulations
I. Background
DoD published a proposed rule in the
Federal Register at 83 FR 42850 on
August 24, 2018, to implement section
823 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2018. Section 823 modifies 10
U.S.C. 2305a to provide an exemption
from the phase two design-build
maximum number of offerors that may
be selected to submit competitive
proposals for contracts exceeding $4
million. The exemption provides that if
the contract value exceeds $4 million
and the solicitation is issued pursuant
to an indefinite-delivery indefinitequantity (IDIQ) contract for design-build
construction, the maximum number of
offerors to be selected may exceed five.
In addition, for other than IDIQ
contracts, the rule provides authority to
exceed the five offeror maximum when
the contracting officer’s decision is
approved by the head of the contracting
activity, delegable to a level no lower
than the senior contracting official
within the contracting activity, when
the solicitation is for a contract that
exceeds $4 million. When a solicitation
is for a contract that does not exceed $4
million, the rule provides that the
number of offerors is at the contracting
officer’s discretion.
Three respondents submitted public
comments in response to the proposed
rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments received
and any changes made to the rule are
provided as follows:
A. Summary of Significant Changes
There were no changes from the
proposed rule made in the final rule as
a result of the comments received. The
comments did not recommend changes
to the proposed rule; rather, the
respondents expressed concerns over
the underlying intent of the statute.
khammond on DSKBBV9HB2PROD with RULES
B. Analysis of Public Comments
1. Administrative and Cost Burden
Comment: Several respondents stated
that the statutory requirement will
create a significant administrative and
cost burden on the Government and/or
industry. One respondent suggested that
the exemption will require DoD officials
to review an unnecessarily high number
of full proposals undermining the
purpose of both IDIQ contracts and
design-build.
Response: The rule does not require
contracting officers to consider more
than five offerors; instead, the rule
VerDate Sep<11>2014
16:03 Feb 14, 2019
Jkt 247001
provides contracting officers the option
to allow for more than five offerors to
submit competitive proposals in
solicitations for contracts for designbuild construction that exceed $4
million.
2. Impact on Competition
Comment: Several respondents stated
that the statutory requirement will drive
away highly qualified design-build
firms and/or possibly favor lower
qualified firms. One respondent stated
that increasing the number of offerors
will reduce participation from highly
qualified firms who incur much of the
cost in these competitions. The same
respondent noted that increasing the
number of offerors may favor lower
qualified offerors based on artificially
low bids.
Response: DoD does not agree that the
statutory requirement, and the resulting
implementing rule, will drive away
highly qualified design-build firms and/
or possibly favor lower qualified firms.
The competitive selection criteria will
not change based on this rule.
Conversely, the rule could be viewed as
providing expanded opportunity for
qualified firms to compete.
3. Learning Curve
Comment: One respondent stated that
the statutory requirement will create a
learning curve for new firms, which will
result in longer project times.
Response: DoD does not agree that
expanding the competitive pool will
necessarily result in longer project
times. While a learning curve might be
expected for any new firm or new
requirement, this does not drive the
decision of whether or not to restrict
competition.
4. Industry Best Practices/Innovation
Comment: Two respondents stated
that the statutory requirement moves
away from industry best practices. One
respondent stated that the statutory
requirement diminishes the
opportunities for innovation that
design-build offers.
Response: While the rule may be
viewed by the respondents as moving
away from industry best practices, this
rule is necessary to meet the
requirements of the statute. Opening up
the competitive pool may result in
opportunities for increased innovation.
5. Accountability
Comment: One respondent stated that
the statutory requirement will create a
larger competitive pool which will
diminish accountability.
PO 00000
Frm 00066
Fmt 4700
Sfmt 4700
Response: Opening up the
competitive pool should not have any
effect upon or diminish accountability.
C. Other Changes
One minor editorial change is made to
the rule numbering to correctly
designate the added DFARS rule text as
‘‘236.303–1(a)(4)’’ in lieu of ‘‘236.303–
1(4)’’.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule does not create any new
provisions or clauses or impact any
existing provisions or clauses.
IV. Executive Orders 12866 and 13563
Executive Order (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
is not a major rule under 5 U.S.C. 804.
V. Executive Order 13771
This final rule is not an E.O. 13771
regulatory action, because this rule is
not significant under E.O. 12866.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis
has been prepared and is summarized as
follows:
This rule amends the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement section 823 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2018,
which modifies 10 U.S.C. 2305a(d)
regarding the maximum number of
offerors that may be selected to submit
competitive proposals under
solicitations for two-phase design-build.
Specifically, the selection procedures
are modified by providing an exemption
from the maximum number of five
offerors when the contract value in a
solicitation exceeds $4 million and the
solicitation is issued pursuant to an
indefinite-delivery indefinite-quantity
(IDIQ) contract for design-build
construction. The rule provides the
E:\FR\FM\15FER1.SGM
15FER1
Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Rules and Regulations
authority to exceed the five offeror
maximum when the contracting officer’s
decision is approved by the head of the
contracting activity, delegable to a level
no lower than the senior contracting
official within the contracting activity,
when the solicitation is for a contract
that exceeds $4 million. The rule also
provides that the number of offerors is
at the contracting officer’s discretion
when the solicitation is for a contract
that does not exceed $4 million.
There were no significant issues
raised by the public comments in
response to the initial regulatory
flexibility analysis.
Based on FY 2017 data from the
Federal Procurement Data System, DoD
issued approximately 499 new awards
for construction exceeding $4 million to
396 unique businesses, to include IDIQ
contracts, purchase orders, and orders
under basic ordering agreements. Of the
499 new awards for construction,
approximately 305 awards
(approximately 61 percent) were made
to 252 unique small entities
(approximately 64 percent). This
estimate is based on the assumption that
contracts for design-build are coded as
‘‘construction’’ in FPDS, in which case
a smaller number of small entities are
actually impacted by the opportunity to
exceed to the five offeror maximum for
contracts valued in excess of $4 million.
For contracts valued at or below $4
million, the FAR already provides an
opportunity for contracting officers to
determine that a greater number of
offerors is in the Government’s interest
and is consistent with the purposes and
objectives of the two-phase design-build
selection procedures. No significant
impact is expected to result from
authorizing contracting officers to
exceed the maximum number at their
own discretion.
This final rule does not include any
new reporting or recordkeeping
requirements for small entities.
There are no known significant
alternative approaches to the final rule
that would meet the requirements of the
applicable statute.
khammond on DSKBBV9HB2PROD with RULES
VI. Paperwork Reduction Act
The 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).
VerDate Sep<11>2014
16:03 Feb 14, 2019
Jkt 247001
List of Subjects in 48 CFR Part 236
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR part 236 is
amended as follows:
PART 236—CONSTRUCTION AND
ARCHITECT–ENGINEER CONTRACTS
1. The authority citation for part 236
continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Add subpart 236.3, consisting of
236.303–1, to read as follows:
■
SUBPART 236.3—TWO–PHASE
DESIGN–BUILD SELECTION
PROCEDURES
236.303–1
Phase One.
(a)(4) In lieu of the limitations on the
maximum number of offerors that may
be selected to submit phase-two
proposals at FAR 36.303–1(a)(4), for
DoD—
(i) If the contract value exceeds $4
million, the maximum number of
offerors specified in the solicitation that
are to be selected to submit phase-two
proposals shall not exceed five, unless—
(A) The solicitation is issued for an
indefinite-delivery indefinite-quantity
contract for design-build construction;
or
(B) The head of the contracting
activity, delegable to a level no lower
than the senior contracting official
within the contracting activity, approves
the contracting officer’s decision with
respect to an individual solicitation,
that a maximum number greater than
five is in the best interest of the
Government and is consistent with the
purposes and objectives of the twophase selection procedures. The
decision shall be documented in the
contract file (10 U.S.C 2305a(d)).
(ii) If the contract value is at or below
$4 million, the maximum number of
offerors specified in the solicitation that
are to be selected to submit phase-two
proposals is at the discretion of the
contracting officer.
[FR Doc. 2019–02526 Filed 2–14–19; 8:45 am]
Frm 00067
Fmt 4700
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 180702599–9068–02]
RIN 0648–BI03
Fisheries of the Northeastern United
States; Northeast Skate Complex;
Framework Adjustment 6; Revised
2018–2019 Specifications
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS approves and
implements measures submitted by the
New England Fishery Management
Council in Framework Adjustment 6 to
the Northeast Skate Complex Fishery
Management Plan and revises the 2018–
2019 skate fishery specifications. This
action is necessary to allow the skate
wing total allowable landings to be
achieved while minimizing the need to
restrict fishing operations through
incidental possession limits. This action
intends to extend the directed fishing
time for both the skate wing and bait
fisheries.
SUMMARY:
Effective on February 15, 2019.
The New England Fishery
Management Council (Council)
prepared an environmental assessment
(EA) for Northeast Skate Complex
Framework Adjustment 6 that describes
the action and other considered
alternatives. The EA provides an
analysis of the biological, economic, and
social impacts of the proposed measures
and other considered alternatives, a
Regulatory Impact Review, and
economic analysis. Copies of the
Framework 6 EA are available on
request from Thomas A. Nies, Executive
Director, New England Fishery
Management Council, 50 Water Street,
Newburyport, MA 01950. This
document is also available from the
following internet addresses: https://
www.nefmc.org.
DATES:
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Emily Gilbert, Fishery Policy Analyst,
(978) 281–9244.
SUPPLEMENTARY INFORMATION:
Background
The New England Fishery
Management Council’s Northeast Skate
Complex Fishery Management Plan
(FMP) manages a complex of seven
skate species (barndoor, clearnose, little,
BILLING CODE 5001–06–P
PO 00000
4373
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15FER1
]]>Agencies
[Federal Register Volume 84, Number 32 (Friday, February 15, 2019)]
[Rules and Regulations]
[Pages 4371-4373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02526]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 236
[Docket DARS-2018-0039]
RIN 0750-AJ75
Defense Federal Acquisition Regulation Supplement: Exemption From
Design-Build Selection Procedures (DFARS Case 2018-D011)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act for Fiscal Year 2018 that provides
an exemption from design-build selection procedures for contracts that
exceed $4 million.
DATES: Effective February 15, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Heather Kitchens, telephone 571-
372-6104.
SUPPLEMENTARY INFORMATION:
[[Page 4372]]
I. Background
DoD published a proposed rule in the Federal Register at 83 FR
42850 on August 24, 2018, to implement section 823 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018. Section 823
modifies 10 U.S.C. 2305a to provide an exemption from the phase two
design-build maximum number of offerors that may be selected to submit
competitive proposals for contracts exceeding $4 million. The exemption
provides that if the contract value exceeds $4 million and the
solicitation is issued pursuant to an indefinite-delivery indefinite-
quantity (IDIQ) contract for design-build construction, the maximum
number of offerors to be selected may exceed five.
In addition, for other than IDIQ contracts, the rule provides
authority to exceed the five offeror maximum when the contracting
officer's decision is approved by the head of the contracting activity,
delegable to a level no lower than the senior contracting official
within the contracting activity, when the solicitation is for a
contract that exceeds $4 million. When a solicitation is for a contract
that does not exceed $4 million, the rule provides that the number of
offerors is at the contracting officer's discretion.
Three respondents submitted public comments in response to the
proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments received and any changes made to the
rule are provided as follows:
A. Summary of Significant Changes
There were no changes from the proposed rule made in the final rule
as a result of the comments received. The comments did not recommend
changes to the proposed rule; rather, the respondents expressed
concerns over the underlying intent of the statute.
B. Analysis of Public Comments
1. Administrative and Cost Burden
Comment: Several respondents stated that the statutory requirement
will create a significant administrative and cost burden on the
Government and/or industry. One respondent suggested that the exemption
will require DoD officials to review an unnecessarily high number of
full proposals undermining the purpose of both IDIQ contracts and
design-build.
Response: The rule does not require contracting officers to
consider more than five offerors; instead, the rule provides
contracting officers the option to allow for more than five offerors to
submit competitive proposals in solicitations for contracts for design-
build construction that exceed $4 million.
2. Impact on Competition
Comment: Several respondents stated that the statutory requirement
will drive away highly qualified design-build firms and/or possibly
favor lower qualified firms. One respondent stated that increasing the
number of offerors will reduce participation from highly qualified
firms who incur much of the cost in these competitions. The same
respondent noted that increasing the number of offerors may favor lower
qualified offerors based on artificially low bids.
Response: DoD does not agree that the statutory requirement, and
the resulting implementing rule, will drive away highly qualified
design-build firms and/or possibly favor lower qualified firms. The
competitive selection criteria will not change based on this rule.
Conversely, the rule could be viewed as providing expanded opportunity
for qualified firms to compete.
3. Learning Curve
Comment: One respondent stated that the statutory requirement will
create a learning curve for new firms, which will result in longer
project times.
Response: DoD does not agree that expanding the competitive pool
will necessarily result in longer project times. While a learning curve
might be expected for any new firm or new requirement, this does not
drive the decision of whether or not to restrict competition.
4. Industry Best Practices/Innovation
Comment: Two respondents stated that the statutory requirement
moves away from industry best practices. One respondent stated that the
statutory requirement diminishes the opportunities for innovation that
design-build offers.
Response: While the rule may be viewed by the respondents as moving
away from industry best practices, this rule is necessary to meet the
requirements of the statute. Opening up the competitive pool may result
in opportunities for increased innovation.
5. Accountability
Comment: One respondent stated that the statutory requirement will
create a larger competitive pool which will diminish accountability.
Response: Opening up the competitive pool should not have any
effect upon or diminish accountability.
C. Other Changes
One minor editorial change is made to the rule numbering to
correctly designate the added DFARS rule text as ``236.303-1(a)(4)'' in
lieu of ``236.303-1(4)''.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule does not create any new provisions or clauses or impact
any existing provisions or clauses.
IV. Executive Orders 12866 and 13563
Executive Order (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 is not a major rule under 5
U.S.C. 804.
V. Executive Order 13771
This final rule is not an E.O. 13771 regulatory action, because
this rule is not significant under E.O. 12866.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared and is
summarized as follows:
This rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement section 823 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2018, which modifies 10
U.S.C. 2305a(d) regarding the maximum number of offerors that may be
selected to submit competitive proposals under solicitations for two-
phase design-build. Specifically, the selection procedures are modified
by providing an exemption from the maximum number of five offerors when
the contract value in a solicitation exceeds $4 million and the
solicitation is issued pursuant to an indefinite-delivery indefinite-
quantity (IDIQ) contract for design-build construction. The rule
provides the
[[Page 4373]]
authority to exceed the five offeror maximum when the contracting
officer's decision is approved by the head of the contracting activity,
delegable to a level no lower than the senior contracting official
within the contracting activity, when the solicitation is for a
contract that exceeds $4 million. The rule also provides that the
number of offerors is at the contracting officer's discretion when the
solicitation is for a contract that does not exceed $4 million.
There were no significant issues raised by the public comments in
response to the initial regulatory flexibility analysis.
Based on FY 2017 data from the Federal Procurement Data System, DoD
issued approximately 499 new awards for construction exceeding $4
million to 396 unique businesses, to include IDIQ contracts, purchase
orders, and orders under basic ordering agreements. Of the 499 new
awards for construction, approximately 305 awards (approximately 61
percent) were made to 252 unique small entities (approximately 64
percent). This estimate is based on the assumption that contracts for
design-build are coded as ``construction'' in FPDS, in which case a
smaller number of small entities are actually impacted by the
opportunity to exceed to the five offeror maximum for contracts valued
in excess of $4 million. For contracts valued at or below $4 million,
the FAR already provides an opportunity for contracting officers to
determine that a greater number of offerors is in the Government's
interest and is consistent with the purposes and objectives of the two-
phase design-build selection procedures. No significant impact is
expected to result from authorizing contracting officers to exceed the
maximum number at their own discretion.
This final rule does not include any new reporting or recordkeeping
requirements for small entities.
There are no known significant alternative approaches to the final
rule that would meet the requirements of the applicable statute.
VI. Paperwork Reduction Act
The 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 Subjects in 48 CFR Part 236
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR part 236 is amended as follows:
PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
1. The authority citation for part 236 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
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2. Add subpart 236.3, consisting of 236.303-1, to read as follows:
SUBPART 236.3--TWO-PHASE DESIGN-BUILD SELECTION PROCEDURES
236.303-1 Phase One.
(a)(4) In lieu of the limitations on the maximum number of offerors
that may be selected to submit phase-two proposals at FAR 36.303-
1(a)(4), for DoD--
(i) If the contract value exceeds $4 million, the maximum number of
offerors specified in the solicitation that are to be selected to
submit phase-two proposals shall not exceed five, unless--
(A) The solicitation is issued for an indefinite-delivery
indefinite-quantity contract for design-build construction; or
(B) The head of the contracting activity, delegable to a level no
lower than the senior contracting official within the contracting
activity, approves the contracting officer's decision with respect to
an individual solicitation, that a maximum number greater than five is
in the best interest of the Government and is consistent with the
purposes and objectives of the two-phase selection procedures. The
decision shall be documented in the contract file (10 U.S.C 2305a(d)).
(ii) If the contract value is at or below $4 million, the maximum
number of offerors specified in the solicitation that are to be
selected to submit phase-two proposals is at the discretion of the
contracting officer.
[FR Doc. 2019-02526 Filed 2-14-19; 8:45 am]
BILLING CODE 5001-06-P
