Defense Federal Acquisition Regulation Supplement: Task Order and Delivery Order Contracting for Architectural and Engineering Services (DFARS Case 2023-D007), 103366-103368 [2024-29227]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103366-103368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29227]


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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: Final rule.

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SUMMARY: DoD is issuing a final rule amending 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: Effective December 18, 2024.

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

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a proposed rule in the Federal Register at 89 FR 
60853 on July 29, 2024, 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. Two 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

[[Page 103367]]

discussion of the comments is provided, as follows:

A. Summary of Significant Changes From the Proposed Rule

    There are no significant changes from the proposed rule.

B. Analysis of Public Comments

1. Support for the Rule
    Comment: A respondent expressed support for timely implementation 
of the final rule.
    Response: DoD acknowledges support for the rule.
2. Concern Regarding the Text of the Rule
    Comment: A respondent expressed concern that the rule text did not 
mirror the statutory language.
    Response: The rule implements the statutory language using the 
drafting conventions of the FAR and its supplements, including the 
DFARS.

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 final 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 final rule 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 final rule points to those 
procedures.
    The final rule also adds language to prevent contracting officers 
from requesting unnecessary information regarding qualifications. 
Therefore, this final 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 a 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. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
Under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
a major rule as defined by 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
and is summarized as follows:
    This rule amends 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).
    There were no significant issues raised by the public in response 
to the initial regulatory flexibility analysis.
    This final rule will apply to small entities performing AE services 
under multiple-award contracts, which includes indefinite-delivery, 
indefinite-quantity contracts. The final 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 proposals. 
As a result, it is estimated that approximately 1,359 small entities 
will benefit from any reduction in burden provided by the final rule.
    The final rule does not impose any new reporting, recordkeeping, or 
compliance requirements.
    There are no practical alternatives that will accomplish the 
objectives of the statute.

VIII. Paperwork Reduction Act

    This 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 Subjects in 48 CFR Part 216

    Government procurement.

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

    Therefore, the Defense Acquisition Regulations System amends 48 CFR 
part 216 as follows:

[[Page 103368]]

PART 216--TYPES OF CONTRACTS

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.

0
2. Add section 216.500 to subpart 216.5 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. 2024-29227 Filed 12-17-24; 8:45 am]
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