81 FR 30447 - Federal Acquisition Regulation; Improvement in Design-Build Construction Process
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 81, Issue 94 (May 16, 2016)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 81, Issue 94 (May 16, 2016)
| Page Range | 30447-30448 | |
| FR Document | 2016-11003 |
[Federal Register Volume 81, Number 94 (Monday, May 16, 2016)] [Rules and Regulations] [Pages 30447-30448] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-11003] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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
![Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations 30447
(a) * * * ACTION: Final rule. scope of the case and the statute that is
(2) * * * being implemented.
(viii) 52.244–6, Subcontracts for SUMMARY: DoD, GSA, and NASA are Comment: Two respondents
Commercial Items (June, 2016). issuing a final rule amending the recommended that the rule be revised to
* * * * * Federal Acquisition Regulation (FAR) to add a reporting requirement for those
(b) * * * implement section 814 of the Carl Levin instances when more than five offerors
(2) * * * and Howard P. ‘Buck’ McKeon National are selected to submit phase-two
(i) 52.204–21, Basic Safeguarding of Defense Authorization Act (NDAA) for
Covered Contractor Information Systems
proposals.
Fiscal Year (FY) 2015 that requires the Response: The scope of this rule is
(June, 2016) (Applies to contracts when the
contractor or a subcontractor at any tier may head of the contracting activity to limited to the implementation of
have Federal contract information residing in approve any determinations to select Section 814 of the FY 2015 NDAA.
or transiting through its information system. more than five offerors to submit phase- Adding a public reporting requirement
two proposals for a two-phase design- is beyond the scope of the case and the
* * * * * build construction acquisition that is statute that is being implemented.
■ 7. Amend section 52.244–6 by— valued at greater than $4 million. Comment: One respondent
■ a. Revising the date of the clause and recommended that the rule be revised to
in paragraph (a) the definition DATES: Effective: June 15, 2016.
FOR FURTHER INFORMATION CONTACT: Mr.
include a requirement that the senior
‘‘Commercial item’’; contracting official’s approval be
■ b. Redesignating paragraphs (c)(1)(iii) Curtis E. Glover, Sr., Procurement
Analyst, at 202–501–1448, for documented in the contract file.
through (xiv) as paragraphs (c)(1)(iv) Response: The requirement to
through (xv); and clarification of content. For information
document the contract file was in the
■ c. Adding a new paragraph (c)(1)(iii). pertaining to status or publication
The revisions and addition read as proposed rule at FAR 36.303–1(a)(4). In
schedules, contact the Regulatory
follows: civilian agencies, for paragraph (a)(4) of
Secretariat Division at 202–501–4755.
FAR section 36.303–1, the senior
Please cite FAC 2005–88, FAR Case
52.244–6 Subcontracts for Commercial contracting official is the advocate for
Items.
2015–018.
competition for the procuring activity,
SUPPLEMENTARY INFORMATION: unless the agency designates a different
* * * * *
I. Background position in agency procedures. The
Subcontracts for Commercial Items approval shall be documented in the
(June, 2016) DoD, GSA, and NASA published a contract file.
proposed rule in the Federal Register at Comment: One respondent
(a) * * *
80 FR 60833 on October 8, 2015, to recommended that the FAR be revised
Commercial item and commercially
available off-the-shelf item have the implement section 814 of the Carl Levin to limit the use of single-step design-
meanings contained in Federal Acquisition and Howard P. ‘Buck’ McKeon NDAA build procurements by requiring the use
Regulation 2.101, Definitions. for FY 2015, Public Law 113–291. of two-step design-build procurement
* * * * * Section 814 requires the head of the process for all design-build
(c)(1) * * * contracting activity, delegable to a level procurements above $4 million.
(iii) 52.204–21, Basic Safeguarding of no lower than the senior contracting Response: The recommendation is
Covered Contractor Information Systems official, to approve any determinations beyond the scope of the case and the
(June, 2016), other than subcontracts for to select more than five offerors to statute that is being implemented.
commercially available off-the-shelf items, if submit phase-two proposals for a two-
flow down is required in accordance with phase design-build construction III. Executive Orders 12866 and 13563
paragraph (c) of FAR clause 52.204–21. acquisition that is valued at greater than Executive Orders (E.O.s) 12866 and
* * * * * $4 million. Five respondents submitted 13563 direct agencies to assess all costs
[FR Doc. 2016–11001 Filed 5–13–16; 8:45 am] comments on the proposed rule. and benefits of available regulatory
BILLING CODE 6820–EP–P
II. Discussion and Analysis alternatives and, if regulation is
necessary, to select regulatory
The Civilian Agency Acquisition approaches that maximize net benefits
DEPARTMENT OF DEFENSE Council and the Defense Acquisition (including potential economic,
Regulations Council (the Councils) environmental, public health and safety
GENERAL SERVICES reviewed the public comments in the effects, distributive impacts, and
ADMINISTRATION development of the final rule. One equity). E.O. 13563 emphasizes the
change was made to the rule as a result importance of quantifying both costs
NATIONAL AERONAUTICS AND of those comments. A discussion of the and benefits, of reducing costs, of
SPACE ADMINISTRATION comments is provided as follows: harmonizing rules, and of promoting
Comment: One respondent requested flexibility. This is not a significant
48 CFR Part 36 that the maximum number of offerors regulatory action and, therefore, was not
[FAC 2005–88; FAR Case 2015–018; Item allowed to submit phase-two proposals subject to review under Section 6(b) of
IV; Docket No. 2015–0018; Sequence No 1] be limited to three of the most highly E.O. 12866, Regulatory Planning and
qualified offerors. Review, dated September 30, 1993. This
RIN 9000–AN10 Response: The scope of this rule is rule is not a major rule under 5 U.S.C.
asabaliauskas on DSK3SPTVN1PROD with RULES
limited to the implementation of 804.
Federal Acquisition Regulation;
Section 814 of the FY 2015 NDAA,
Improvement in Design-Build IV. Regulatory Flexibility Act
which requires a higher approval
Construction Process
authority when selecting more than five DoD, GSA, and NASA have prepared
AGENCY: Department of Defense (DoD), offerors to participate in Phase 2 of a a Final Regulatory Flexibility Analysis
General Services Administration (GSA), design-build acquisition. Identifying the (FRFA) consistent with the Regulatory
and National Aeronautics and Space ideal number of contractors for Flexibility Act, 5 U.S.C. 601, et seq. The
Administration (NASA). participation in Phase 2 is beyond the FRFA is summarized as follows:
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![30448 Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and Regulations
This rule implements section 814 of the Dated: May 5, 2016. DEPARTMENT OF DEFENSE
Carl Levin and Howard P. ‘Buck’ McKeon William Clark,
National Defense Authorization Act for Fiscal Director, Office of Government-wide GENERAL SERVICES
Year 2015. Section 814 is entitled Acquisition Policy, Office of Acquisition ADMINISTRATION
Improvement in Defense Design-Build Policy, Office of Government-wide Policy.
Construction Process. Section 814 requires NATIONAL AERONAUTICS AND
the head of the contracting activity, delegable Therefore, DoD, GSA, and NASA SPACE ADMINISTRATION
to a level no lower than the senior amend 48 CFR part 36 as set forth
contracting official, to approve any below: 48 CFR Part 1
determinations to select more than five
offerors to submit phase-two proposals for a PART 36—CONSTRUCTION AND [FAC 2005–88; Item V; Docket No. 2016–
two-phase design-build construction ARCHITECT-ENGINEER CONTRACTS 0052; Sequence No. 2]
acquisition that is valued at greater than $4
million. ■ 1. The authority citation for 48 CFR Federal Acquisition Regulation;
No comments were received by the public Technical Amendments
part 36 continues to read as follows:
comments in response to the initial
regulatory flexibility analysis. The number of Authority: 40 U.S.C. 121(c); 10 U.S.C. AGENCY: Department of Defense (DoD),
design-build construction awards is not chapter 137; and 51 U.S.C. 20113. General Services Administration (GSA),
currently tracked by the Federal and National Aeronautics and Space
government’s business systems. In Fiscal
■ 2. Amend section 36.303–1 by Administration (NASA).
Year 2014, the Federal Government awarded revising paragraph (a)(4) to read as ACTION: Final rule.
3,666 construction awards to 2,239 unique follows:
small business vendors. It is unknown what SUMMARY: This document makes
36.303–1 Phase One. amendments to the Federal Acquisition
percentage of these contracts involved
design-build construction services. (a) * * * Regulation (FAR) in order to make
This rule does not impose new editorial changes.
(4) A statement of the maximum
recordkeeping or reporting requirements. The number of offerors that will be selected DATES: Effective: May 16, 2016.
new approval requirement for advancing FOR FURTHER INFORMATION CONTACT: Ms.
to submit phase-two proposals. The
more than five contractors to phase two of a Hada Flowers, Regulatory Secretariat
maximum number specified in the
two-phase design-build selection procedure Division (MVCB), 1800 F Street NW.,
only affects the internal operating procedures
solicitation shall not exceed five unless
the contracting officer determines, for 2nd Floor, Washington, DC 20405, 202–
of the Government. For acquisitions valued 501–4755. Please cite FAC 2005–88,
over $4 million, the head of the contracting that particular solicitation, that a
number greater than five is in the Technical Amendments.
activity (HCA) is required to now make a
Government’s interest and is consistent SUPPLEMENTARY INFORMATION: In order to
determination that it is in the best interest of
the Government to select more than five with the purposes and objectives of the update certain elements in 48 CFR part
offerors to proceed to phase two. Any burden two-phase design-build selection 1 this document makes editorial
caused by this rule is expected to be minimal procedures. The contracting officer shall changes to the FAR.
and will not be any greater on small document this determination in the List of Subject in 48 CFR Part 1
businesses than it is on large businesses. contract file. For acquisitions greater
No alternative approaches were Government procurement.
than $4 million, the determination shall
considered. The new approval requirement be approved by the head of the Dated: May 5, 2016.
for advancing more than five contractors to contracting activity, delegable to a level William Clark,
phase two of a two-phase design-build no lower than the senior contracting Director, Office of Government-wide
selection procedure only affects the internal Acquisition Policy, Office of Acquisition
official within the contracting activity.
operating procedures of the Government. It is Policy, Office of Government-wide Policy.
In civilian agencies, for this paragraph
not anticipated that the proposed rule will
(a)(4), the senior contracting official is Therefore, DoD, GSA, and NASA
have a significant economic impact on small
the advocate for competition for the amend 48 CFR part 1 as set forth below:
entities.
procuring activity, unless the agency
designates a different position in agency PART 1—FEDERAL ACQUISITION
Interested parties may obtain a copy
REGULATIONS SYSTEM
of the FRFA from the Regulatory procedures. The approval shall be
Secretariat Division. The Regulatory documented in the contract file. ■ 1. The authority citation for 48 CFR
Secretariat Division has submitted a * * * * * part 1 continues to read as follow:
copy of the FRFA to the Chief Counsel [FR Doc. 2016–11003 Filed 5–13–16; 8:45 am]
Authority: 40 U.S.C. 121(c); 10 U.S.C.
for Advocacy of the Small Business BILLING CODE 6820–EP–P chapter 137; and 51 U.S.C. 20113.
Administration.
1.106 [Amended]
V. Paperwork Reduction Act
■ 2. Amend section 1.106 in the table
The final rule does not contain any following the introductory text, by—
information collection requirements that ■ a. Removing FAR segment ‘‘3.4’’ and
asabaliauskas on DSK3SPTVN1PROD with RULES
require the approval of the Office of its corresponding OMB Control No.
Management and Budget under the ‘‘9000–0003’’;
Paperwork Reduction Act (44 U.S.C. ■ b. Removing from FAR segment 3.11,
chapter 35). the OMB Control No. ‘‘9000–0181’’ and
adding ‘‘9000–0183’’ in its place;
List of Subject in 48 CFR Part 36 ■ c. Removing from FAR segment 9.2,
the OMB Control No. ‘‘9000–0020’’ and
Government procurement.
adding ‘‘9000–0083’’ in its place;
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Document Created: 2016-05-14 01:17:21
Document Modified: 2016-05-14 01:17:21
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective: June 15, 2016. | |
| 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. | |
| FR Citation | 81 FR 30447 | |
| RIN Number | 9000-AN10 |
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