[Federal Register: September 30, 2005 (Volume 70, Number 189)]
[Rules and Regulations]
[Page 57452-57453]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se05-39]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 8, 16, and 36
[FAC 2005-06; FAR Case 2004-001; Item II]
RIN 9000-AK15
Federal Acquisition Regulation; Improvements in Contracting for
Architect-Engineer Services
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 (Councils) have adopted as final,
without change, an interim rule amending the Federal Acquisition
Regulation (FAR) to implement Section 1427(b) of the Services
Acquisition Reform Act of 2003 (Title XIV of Public Law 108-136). This
final rule emphasizes the requirement to place orders for architect-
engineer services consistent with the FAR and reiterates that such
orders shall not be placed under General Services Administration (GSA)
multiple award schedule (MAS) contracts and Governmentwide task and
delivery order contracts unless the contracts were awarded using the
procedures as stated in the FAR.
DATES: Effective Date: September 30, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Ms. Cecelia Davis, Procurement
Analyst, at (202) 219-0202. Please cite FAC 2005-06, FAR case 2004-001.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule constitutes the implementation in the FAR of
Section 1427 of the Services Acquisition Reform Act of 2003 (Title XIV
of Public Law 108-136) to ensure that the requirements of the Brooks
Architect-Engineers Act (40 U.S.C. 1102 et seq.) are not circumvented
through the placement of orders under GSA MAS contracts and
Governmentwide task and delivery order contracts that were not awarded
using FAR Subpart 36.6 procedures. An order cannot be issued consistent
with FAR Subpart 36.6, as currently required by FAR 16.500(d), unless
the basic underlying contract was awarded using the Brooks Architect-
Engineers Act procedures. This final rule amends FAR parts 2, 8, 16,
and 36 to ensure appropriate procedures are followed when ordering
architect-engineer services. The interim rule was published in the
Federal Register at 70 FR 11737, March 9, 2005. The Councils received
comments in response to the interim rule from seven (7) respondents.
Summary of the Public Comments
The comments were organized into three groups as follows:
1. Clarification on the Brooks Act Citation (40 U.S.C. 1102).
Comment: Two commenters indicated that they were unable to find any
relation of 40 U.S.C. 1102 with Architect-Engineer Services and
requested clarification.
[[Page 57453]]
Response: The Councils clarify that the Brooks Act was recently re-
codified by Congress and is now identified under 40 U.S.C. 1101 et seq.
and the definition of architect-engineer services is defined under 40
U.S.C. 1102.
2. Support interim rule but it does not go far enough. Recommend
changes in the definition.
Comment: One commenter requested that in each place where the term
``architect-engineer'' is used in the rule, it be replaced with the
term ``architectural and engineering (including surveying and mapping)
services.'' Another commenter requested that all mapping and surveying
be subjected to qualification based selection in conformance with the
Brooks Act.
Response: The Councils considered these recommendations to be
beyond the scope of the rule. In addition, the Councils have already
addressed the issue of the procurement of mapping services in FAR case
2004-023, published in the Federal Register at 70 FR 20329, April 19,
2005.
3. Address how GSA plans to prevent violation when Agencies use the
GSA Multiple Award Schedule (MAS) program.
Comment: Four commenters indicated that they have concerns with the
proper use of the MAS program and asked that GSA indicate how it plans
to eliminate the violations.
Response: GSA has indicated to the Councils that it supports the
use of the qualifications based selection (QBS) process for the
procurement of A/E services for public projects as mandated by the
Brooks Architect-Engineer Act of 1972 (Public Law 92-582, 40 U.S.C.
1102 et seq.), and it does not condone any violation of the Brooks Act.
To ensure that the ordering agencies are fully aware of the statutory
requirement, GSA has indicated that it has taken various steps to state
that the GSA MAS Program may not be used to acquire services that are
subject to the procedures of FAR Subpart 36.6. These steps include
adding information to the online and classroom training, refining the
scope of MAS contracts, adding a notice to GSA portal and MAS
brochures, adding new FAQ's on the website, and conducting a customer
compliance survey. GSA also plans on conducting reviews of task orders
for scope compliance and A/E services will be part of the reviews.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 this rule only clarifies
an already existing requirement that architectural and engineering
services be procured using the procedures at FAR Subpart 36.6.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that 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 2, 8, 16, and 36
Government procurement.
Dated: September 22, 2005.
Julia B. Wise,
Director, Contract Policy Division.
Interim Rule Adopted as Final Without Change
0
Accordingly, the interim rule amending 48 CFR parts 2, 8, 16, and 36,
which was published at 70 FR 11737, March 9, 2005, is adopted as a
final rule without change.
[FR Doc. 05-19469 Filed 9-29-05; 8:45 am]
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