[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Rules and Regulations]
[Pages 271-273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33217]
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DEPARTMENT OF DEFENSE
48 CFR Parts 1, 5, 14, and 36
[FAC 90-45; FAR Case 96-305; Item XIII]
RIN 9000--AH17
Federal Acquisition Regulation; Two-Phase Design Build Selection
Procedures
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to implement Section 4105 of
the Clinger-Cohen Act of 1996 (Public Law 104-106), which authorizes
the use of two-phase design-build procedures for construction
contracting. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: January 1, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4035, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-5, FAR case 96-305.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule with request for public comment was published in
the Federal Register at 61 FR 41212, August 7, 1996. Comments were
received from 77 respondents. After analysis of the public comments and
further consideration of the proposed language, the rule was revised at
FAR 36.104, 36.301(b)(2), and 36.303-1 to more closely conform to the
provisions of Section 4105 of Public Law 104-106. In addition, examples
of phase-two evaluation factors have been added at FAR 36.303-(a).
B. Regulatory Flexibility Act
This final rule may 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., because the rule
reduces the cost of proposal preparation for those offerors not
selected for Phase Two, when two-phase design-build procedures are
used. A Final Regulatory Flexibility Analysis (FRFA) has been prepared
and is summarized as follows:
We estimate that approximately 1,465 small businesses responding
to two-phase design-build solicitations annually may save proposal
costs on an average of eight separate solicitations each. This final
rule imposes no new reporting or recordkeeping requirements.
A copy of the FRFA will be provided to the Chief Counsel for
Advocacy for the Small Business Administration. A copy of the FRFA may
be obtained from the FAR Secretariat. Comments are invited. Comments
from small entities concerning the affected FAR subpart will be
considered in accordance with 5 U.S.C. 610. Such comments must be
submitted separately and cite 5 U.S.C 601, et seq. (FAR Case 96-305),
in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 1, 5, 14, and 36
Government procurement.
Dated: December 24, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 1, 5, 14, and 36 is amended as set forth
below:
1. The authority citation for 48 CFR Parts 1, 5, 14, and 36
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATION SYSTEM
1.106 [Amended]
2. Section 1.106 is amended in the list following the introductory
paragraph by removing the FAR segment ``36.302'' and inserting
``36.213-2''.
PART 5--PUBLICIZING CONTRACT ACTIONS
3. Section 5.204 is amended by revising the first sentence to read
as follows:
5.204 Presolicitation notices.
Contracting officers shall publicize presolicitation notices in the
CBD (see 15.404 and 36.213-2). * * *
[[Page 272]]
PART 14--SEALED BIDDING
4. Section 14.202-1 is amended in paragraph (a) by revising the
first parenthetical to read as follows:
14.202-1 Bidding time.
(a) * * * (For construction contracts, see 36.213-3(a)). * * *
* * * * *
5. Section 14.211 is amended by revising the first sentence of
paragraph (a) to read as follows:
14.211 Release of acquisition information.
(a) Before solicitation. Information concerning proposed
acquisitions shall not be released outside the Government before
solicitation except for presolicitation notices in accordance with
14.205-4(c) or 36.213-2, or long-range acquisition estimates in
accordance with 5.404, or synopses in accordance with 5.201. * * *
* * * * *
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
6. Section 36.102 is amended by adding, in alphabetical order, the
definitions ``Design'', ``Design-bid-build'', ``Design-build'', and
``Two-phase design-build selection procedures'' to read as follows:
36.102 Definitions.
* * * * *
Design, as used in this part, means defining the construction
requirement (including the functional relationships and technical
systems to be used, such as architectural, environmental, structural,
electrical, mechanical, and fire protection), producing the technical
specifications and drawings, and preparing the construction cost
estimate.
Design-bid-build, as used in this part, means the traditional
delivery method where design and construction are sequential and
contracted for separately with two contracts and two contractors.
Design-build, as used in this part, means combining design and
construction in a single contract with one contractor.
* * * * *
Two-phase design-build selection procedures, as used in this part,
is a selection method in which a limited number of offerors (normally
five or fewer) is selected during Phase One to submit detailed
proposals for Phase Two (see subpart 36.3).
7. Section 36.104 is added to read as follows:
36.104 Policy.
Unless the traditional acquisition approach of design-bid-build
established under the Brooks Architect-Engineers Act (41 U.S.C. 541, et
seq.) or another acquisition procedure authorized by law is used, the
contracting officer shall use the two-phase selection procedures
authorized by 10 U.S.C. 2305a or 41 U.S.C. 253m when entering into a
contract for the design and construction of a public building,
facility, or work, if the contracting officer makes a determination
that the procedures are appropriate for use (see subpart 36.3). Other
acquisition procedures authorized by law include the procedures
established in this part and other parts of this chapter and, for DoD,
the design-build process described in 10 U.S.C. 2862.
Subpart 36.3 [Redesignated as 36.213 and Amended]
36.301-36.304 [Redesignated as 36.213-1--36.213-4]
8. Subpart 36.3 is redesignated as section 36.213 and the heading
is revised to read ``Special procedures for sealed bidding in
construction contracting.''; and sections 36.301 through 36.304 are
redesignated as 36.213-1 through 36.213-4, respectively.
Subpart 36.4 [Removed]
36.401 [Removed]
36.402 [Redesignated as 36.214]
36.403 [Redesignated as 36.215]
9. Subpart heading 36.4 and section 36.401 are removed; and
sections 36.402 and 36.403 are redesignated as 36.214 and 36.215,
respectively, and the section headings revised to read as follows:
36.214 Special procedures for price negotiation in construction
contracting.
36.215 Special procedure for cost-reimbursement contracts for
construction.
10. Subpart 36.3, consisting of sections 36.300 through 36.303-2,
is added to read as follows:
Subpart 36.3--Two-Phase Design-Build Selection Procedures
Sec.
36.300 Scope of subpart.
36.301 Use of two-phase design-build selection procedures.
36.302 Scope of work.
36.303 Procedures.
36.303-1 Phase One.
36.303-2 Phase Two.
Subpart 36.3--Two-Phase Design-Build Selection Procedures
36.300 Scope of subpart.
This subpart prescribes policies and procedures for the use of the
two-phase design-build selection procedures authorized by 10 U.S.C.
2305a and 41 U.S.C. 253m.
36.301 Use of two-phase design-build selection procedures.
(a) During formal or informal acquisition planning (see part 7), if
considering the use of two-phase design-build selection procedures, the
contracting officer shall conduct the evaluation in paragraph (b) of
this section.
(b) The two-phase design-build selection procedures shall be used
when the contracting officer determines that this method is
appropriate, based on the following:
(1) Three or more offers are anticipated.
(2) Design work must be performed by offerors before developing
price or cost proposals, and offerors will incur a substantial amount
of expense in preparing offers.
(3) The following criteria have been considered:
(i) The extent to which the project requirements have been
adequately defined.
(ii) The time constraints for delivery of the project.
(iii) The capability and experience of potential contractors.
(iv) The suitability of the project for use of the two-phase
selection method.
(v) The capability of the agency to manage the two-phase selection
process.
(vi) Other criteria established by the head of the contracting
activity.
36.302 Scope of work.
The agency shall develop, either in-house or by contract, a scope
of work that defines the project and states the Government's
requirements. The scope of work may include criteria and preliminary
design, budget parameters, and schedule or delivery requirements. If
the agency contracts for development of the scope of work, the
procedures in subpart 36.6 shall be used.
36.303 Procedures.
One solicitation may be issued covering both phases, or two
solicitations may be issued in sequence. Proposals will be evaluated in
Phase One to determine which offerors will submit proposals for Phase
Two. One contract will be awarded using competitive negotiation.
[[Page 273]]
36.303-1 Phase One.
(a) Phase One of the solicitation(s) shall includ--
(1) The scope of work;
(2) The phase-one evaluation factors, including--
(i) Technical approach (but not detailed design or technical
information);
(ii) Technical qualifications, such as--
(A) Specialized experience and technical competence;
(B) Capability to perform;
(C) Past performance of the offeror's team (including the
architect-engineer and construction members); and
(iii) Other appropriate factors (excluding cost or price related
factors, which are not permitted in Phase One);
(3) Phase-two evaluation factors (see 36.303-2); and
(4) A statement of the maximum number of offerors that will be
selected to submit phase-two proposals. The maximum number specified
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 two-phase design-build contracting).
(b) After evaluating phase-one proposals, the contracting officer
shall select the most highly qualified offerors (not to exceed the
maximum number specified in the solicitation in accordance with 36.303-
1(a)(4)) and request that only those offerors submit phase-two
proposals.
36.303-2 Phase Two.
(a) Phase Two of the solicitation(s) shall be prepared in
accordance with part 15, and include phase-two evaluation factors,
developed in accordance with 15.605. Examples of potential phase-two
technical evaluation factors include design concepts, management
approach, key personnel, and proposed technical solutions.
(b) Phase Two of the solicitation(s) shall require submission of
technical and price proposals, which shall be evaluated separately, in
accordance with part 15.
11. Subpart 36.4 is added and reserved to read as follows:
Subpart 36.4--Commercial Practices [Reserved]
[FR Doc. 96-33217 Filed 12-31-96; 8:45 am]
BILLING CODE 6820--EP