80 FR 60833 - Federal Acquisition Regulation; Improvement in Design-Build Construction Process

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 80, Issue 195 (October 8, 2015)

DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement section 814 of the Carl Levin and Howard P. `Buck' McKeon National Defense Authorization Act for Fiscal Year 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.

[Federal Register Volume 80, Number 195 (Thursday, October 8, 2015)]
[Proposed Rules]
[Pages 60833-60834]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-25613]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 36

[FAR Case 2015-018; Docket No. 2015-0018; Sequence No. 1]
RIN 9000-AN10


Federal Acquisition Regulation; Improvement in Design-Build 
Construction Process

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement section 814 of the Carl Levin 
and Howard P. `Buck' McKeon National Defense Authorization Act for 
Fiscal Year 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: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
December 7, 2015 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments in response to FAR Case 2015-018 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2015-018.'' Select the link ``Comment Now'' that corresponds with FAR 
Case 2015-018. Follow the instructions provided at the ``Comment Now'' 
screen. Please include your name, company name (if any), and ``FAR Case 
2015-018'' on your attached document.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2015-
018, in all correspondence related to this case. Comments received 
generally will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided. To confirm receipt of your comment(s), please check 
www.regulations.gov, approximately two to three days after submission 
to verify posting (except allow 30 days for posting of comments 
submitted by mail).

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 at 202-501-4755. Please cite FAR case 2015-018.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are proposing to amend the FAR to implement 
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.

II. Discussion and Analysis

    This proposed rule does not change the maximum number of offerors, 
currently five, that may be selected to submit phase-two proposals 
without a contracting officer determination. However, for acquisitions 
valued above

[[Page 60834]]

$4 million, the determination must now have a higher level of approval 
for the contracting officer to select more than five offerors. A 
potential offeror may be more inclined to invest their pre-award 
efforts on solicitations where they have an increased chance of award.

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

    This change is not expected 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. Nevertheless, an 
Initial Regulatory Flexibility Analysis (IRFA) has been prepared, and 
is summarized as follows:

    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.
    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 procedures of the Government. 
For acquisitions valued over $4M, 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.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules. No alternative approaches were considered. It is not 
anticipated that the proposed rule will have a significant economic 
impact on small entities.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, 
and NASA invite comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-018), 
in correspondence.

V. 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 Subject in 48 CFR Part 36

    Government procurement.

William Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 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.
* * * * *
[FR Doc. 2015-25613 Filed 10-7-15; 8:45 am]
 BILLING CODE 6820-EP-P