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:

Interim rule with request for comments.

SUMMARY:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on 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 Pub. L. 108-136).

DATES:

Effective Date: March 9, 2005.

Comment Date: Interested parties should submit comments to the FAR Secretariat at the address shown below on or before May 9, 2005 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by FAC 2005-01, FAR case 2004-001 by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.
• Agency Web Site: http://www.acqnet.gov/far/ProposedRules/proposed.htm . Click on the FAR case number to submit comments.
• E-mail: farcase.2004-001@gsa.gov. Include FAC 2005-01, FAR case 2004-001 in the subject line of the message.
• Fax: 202-501-4067.
• Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.

Instructions: Please submit comments only and cite FAC 2005-01, FAR case 2004-001, in all correspondence related to this case. All comments received will be posted without change to http://www.acqnet.gov/far/ProposedRules/proposed.htm , including any personal information provided.

FOR FURTHER INFORMATION CONTACT:

The FAR Secretariat at (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Michael O. Jackson, Procurement Analyst, at (202) 208-4949. Please cite FAC 2005-01, FAR case 2004-001.

SUPPLEMENTARY INFORMATION:

A. Background

Section 1427 of the Services Acquisition Reform Act of 2003 prohibits architect-engineer services from being offered under multiple award Federal Supply Schedules or under Governmentwide task and delivery order contracts unless the services are performed under the direct supervision of a professional architect or engineer licensed, registered, or certified in the State, Federal District, or outlying area, in which the services are to be performed and are awarded using the procedures of the Brooks Architect-Engineer Act.

FAR Subpart 2.1, Definitions, is revised to correct the statutory citation for architect-engineer contracts.

FAR 8.403(c) is added to clarify that agencies whose requirements substantially, or to a dominant extent, specify performance of architect-engineer services (as defined in 2.101) must use the procedures at FAR Subpart 36.6.

A new paragraph 16.505(a)(8) is added to stipulate that orders that substantially, or to a dominant extent, specify the performance of architect-engineer services (as defined in 2.101), must be issued using the procedures at FAR Subpart 36.6 and such services require the direct supervision of a professional architect or engineer who is licensed, registered, or certified in the State, Federal District or outlying area where the services are to be performed.

FAR 36.600 is revised to make the policies and procedures in FAR Subpart 36.6 applicable to orders for architect-engineer services issued under FAR 16.505.

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 interim rule 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., because the interim rule clarifies an already existing requirement that architecture and engineering services be procured using the procedures at FAR Subpart 36.6.

Therefore, an Initial Regulatory Flexibility Analysis has not been performed. The Councils will consider comments from small entities concerning the affected FAR Parts 2, 8, 16, and 36 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 601, et seq. (FAC 2005-01, FAR case 2004-001, in correspondence.

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.

D. Determination to Issue an Interim Rule

A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because Federal agencies require clear guidance to avoid inadvertently violating the requirements of the Brooks Architect-Engineers Act and section 1427(b) of the Services Acquisition Reform Act of 2003 (Title XIV of Pub. L. 108-136.) Section 1427(b) went into effect November 24, 2003.

However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will consider public comments received in response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 2, 8, 16, and 36

• Government procurement

Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 8, 16, and 36 as set forth below:

1. The authority citation for 48 CFR parts 2, 8, 16, and 36 is revised to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

PART 2—DEFINITIONS OF WORDS AND TERMS

2. Amend section 2.101 in paragraph (b) in the definition “Architect-engineer services” by removing “ 40 U.S.C. 541” and adding “40 U.S.C. 1102” in its place.

PART 8—REQUIRED SOURCES OF SUPPLIES AND SERVICES

3. Amend section 8.403 by adding paragraph (c) to read as follows:

(c) In accordance with section 1427(b) of Public Law 108-136, for requirements that substantially or to a dominant extent specify performance of architect-engineer services (as defined in 2.101), agencies—

(1) Shall use the procedures at Subpart 36.6; and

(2) Shall not place orders for such requirements under a Federal Supply Schedule.

PART 16—TYPES OF CONTRACTS

4. Amend section 16.505 by redesignating paragraph (a)(8) as (a)(9) and adding a new paragraph (a)(8) to read as follows:

(a) * * *

(8) In accordance with section 1427(b) of Public Law 108-136, orders placed under multi-agency contracts for services that substantially or to a dominant extent specify performance of architect-engineer services, as defined in 2.101, shall—

(i) Be awarded using the procedures at Subpart 36.6; and

(ii) Require the direct supervision of a professional architect or engineer licensed, registered or certified in the State, Federal District, or outlying area, in which the services are to be performed.

PART 36—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

5. Revise section 36.600 to read as follows:

This subpart prescribes policies and procedures applicable to the acquisition of architect-engineer services, including orders for architect-engineer services under multi-agency contracts (see 16.505(a)(8)).