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

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Department of Defense

Defense Acquisition Regulations System

1. 48 CFR Part 216
2. [Docket DARS-2024-0023]
3. RIN 0750-AL80

AGENCY:

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

ACTION:

Final rule.

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 [phone].

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 ( print 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:

( print page 103368)

PART 216—TYPES OF CONTRACTS

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.

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)).