Defense Federal Acquisition Regulation Supplement: Task Order and Delivery Order Contracting for Architectural and Engineering Services (DFARS Case 2023-D007), 60853-60854 [2024-16335]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 89, Number 145 (Monday, July 29, 2024)]
[Proposed Rules]
[Pages 60853-60854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16335]


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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 216

[Docket DARS-2024-0023]
RIN 0750-AL80


Defense Federal Acquisition Regulation Supplement: Task Order and 
Delivery Order Contracting for Architectural and Engineering Services 
(DFARS Case 2023-D007)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2023 that provides directions 
for awarding architectural and engineering service task orders and 
delivery orders under multiple-award contracts.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before September 27, 2024, to be 
considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2023-D007, using 
either of the following methods:
    [cir] Federal eRulemaking Portal: https://regulations.gov. Search 
for DFARS Case 2023-D007. Select ``Comment'' and follow the 
instructions to submit a comment. Please include ``DFARS Case 2023-
D007'' on any attached documents.
    [cir] Email: [email protected]. Include DFARS Case 2023-D007 in 
the subject line of the message.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Ms. Kimberly R. Ziegler, telephone 
703-901-3176.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to amend DFARS subpart 216.5, Indefinite-Delivery 
Contracts, to implement section 802 of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2023 (Pub. L. 117-263), 
which amends 10 U.S.C. 3406. Section 802 added a requirement at 10 
U.S.C. 3406(h)(1) for DoD contracting officers to use qualification-
based selections when awarding task orders and delivery orders for 
architectural and engineering (AE) services in accordance with Federal 
Acquisition Regulation (FAR) subpart 36.6 and 40 U.S.C. chapter 11 (The 
Brooks Architect Engineer Act). Section 802 also added, at 10 U.S.C. 
3406(h)(2), direction that prevents contracting officers from routinely 
requesting additional information regarding qualifications when 
awarding task orders or delivery orders under a multiple-award 
contract.
    The final rule for FAR Case 2004-001, Improvements in Contracting 
for Architect-Engineer Services, was published in the Federal Register 
at 70 FR 57452 on September 30, 2005, to implement section 1427(b) of 
the NDAA for FY 2004 (Pub. L. 108-136). Section 1427(b) required the 
use of FAR subpart 36.6 procedures for the selection of contractors and 
placement of orders under multiple-award contracts, among other similar 
requirements. The final rule placed new direction pertaining to AE 
services at FAR 16.500(d), 16.505(a)(9), and 36.600. The requirement at 
10 U.S.C. 3406(h)(1) closely resembles the direction provided at FAR 
16.500(d). Since the direction at FAR 16.500(d) applies Governmentwide, 
DoD is currently complying with 10 U.S.C. 3406(h)(1).

II. Discussion and Analysis

    The proposed rule implements 10 U.S.C. 3406(h)(1) by utilizing the 
existing Governmentwide direction at FAR 16.500(d) and reminds DoD 
contracting officers, at DFARS 216.500(d)(i), of the applicability of 
the Governmentwide guidance. This proposed rule adds the DoD-specific 
statutory guidance required by 10 U.S.C. 3406(h)(2), at DFARS 
216.500(d)(ii), to direct contracting officers not to request 
additional information regarding qualifications unless necessary to 
determine qualifications for a particular task order or delivery order 
under a multiple-award contract.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Services and Commercial Products, 
Including Commercially Available Off-the-Shelf (COTS) Items

    This proposed rule does not create any new solicitation provisions 
or contract clauses. It does not impact any existing solicitation 
provisions or contract clauses or their applicability to contracts 
valued at or below the simplified acquisition threshold, for commercial 
products including COTS items, or for commercial services.

IV. Expected Impact of the Rule

    DoD does not expect the proposed rule, when finalized, to have a 
significant impact on the public because the rule maintains the status 
quo regarding procedures for awarding task orders or delivery orders 
for AE services under multiple-award contracts. The FAR currently 
provides those procedures at subpart 36.6. This DFARS proposed rule 
points to those procedures.
    This proposed rule also adds language to prevent contracting 
officers from requesting unnecessary information regarding 
qualifications. Therefore, the proposed rule may reduce the 
resubmission of qualification information when competing for AE 
services under multiple-award contracts. Contracting officers will 
request additional information only when necessary to determine the 
most qualified offeror for the particular task order or delivery order.

V. 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, as amended.

VI. Regulatory Flexibility Act

    DoD does not expect this proposed rule, when finalized, 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.,

[[Page 60854]]

because the proposed rule reduces the burden on small entities 
participating on multiple-award contracts for AE services. However, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    This rule proposes to amend the DFARS to implement section 802 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023 
(Pub. L. 117-263), which amends 10 U.S.C. 3406. Section 802 requires 
DoD contracting officers to use qualification-based selections when 
awarding task orders and delivery orders for architectural and 
engineering (AE) services (10 U.S.C. 3406(h)(1)), a requirement that is 
already in Federal Acquisition Regulation (FAR) 16.500(d), 
16.505(a)(9), and 36.600. Section 802 also prevents contracting 
officers from routinely requesting additional information regarding 
qualifications when awarding task orders or delivery orders under a 
multiple-award contract (10 U.S.C. 3406(h)(2)).
    The objective of the rule is to ensure DoD contracting officers 
follow the new direction provided by 10 U.S.C. 3406(h)(2) when awarding 
task orders and delivery orders for AE services in accordance with 
current regulations and 10 U.S.C. 3406(h)(1). The legal basis of the 
rule is section 802 of the NDAA for FY 2023.
    This proposed rule, when finalized, will apply to small entities 
performing AE services under multiple-award contracts, which includes 
indefinite-delivery, indefinite-quantity contracts. The proposed rule 
is expected to reduce the burden on small entities by preventing 
contracting officers, when awarding task orders or delivery orders, 
from requiring the submittal of qualification information that was 
previously submitted and evaluated for the award of the basic multiple-
award contract. The contracting officer may now request qualification 
information that is necessary to determine the most qualified offer for 
the particular task order or delivery order.
    Data obtained from the Federal Procurement Data System for FY 2020, 
2021, and 2022 indicates that DoD awards an average of 4,600 task 
orders and delivery orders for AE services annually. Of the estimated 
4,600 orders, an average of approximately 2,600 awards are made 
annually to an estimated 453 unique small entities. For each task order 
or delivery order award, DoD estimates that 3 multiple-award contract 
awardees will submit an offer in response to a request for proposal. As 
a result, it is estimated that approximately 1,359 small entities will 
benefit from any reduction in burden provided by the proposed rule, 
when finalized.
    The proposed rule does not impose any new reporting, recordkeeping, 
or compliance requirements.
    The proposed rule does not duplicate, overlap, or conflict with any 
other Federal rules.
    There are no practical alternatives that will accomplish the 
objectives of the statute.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this proposed rule on 
small entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this proposed rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2023-
D007), in correspondence.

VII. Paperwork Reduction Act

    This proposed 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 216

    Government Procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, the Defense Acquisition Regulations System proposes to 
amend 48 CFR part 216 as follows:

0
1. The authority citation for 48 CFR part 216 continues to read as 
follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 216--TYPES OF CONTRACTS

0
2. Add section 216.500 to read as follows:


216.500  Scope of subpart.

    (d)(i) When awarding task orders or delivery orders for architect-
engineer services under a multiple-award contract, follow the 
procedures for the selection of contractors and placement of orders at 
FAR 36.6 to implement 10 U.S.C. 3406(h)(1).
    (ii) Contracting officers shall not request additional information 
related to contractor qualifications, unless it is necessary to 
determine the most highly qualified contractor for the particular task 
order or delivery order (10 U.S.C. 3406(h)(2)).

[FR Doc. 2024-16335 Filed 7-26-24; 8:45 am]
BILLING CODE 6001-FR-P