42850 Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Proposed Rules 

(End of provision) 

■ 15. Amend section 252.242–7005 by— 

■ a. Removing the clause date of ‘‘(FEB 

2012)’’ and adding ‘‘(DATE)’’ in its 

place; 

■ b. In paragraph (d)(2) removing 

‘‘withhold payments’’ and adding 

‘‘withhold payments, except as 

provided in paragraph (e) of this clause’’ 

in its place; 

■ c. Redesignating paragraphs (e) and (f) 

as paragraphs (f) and (g); and 

■ d. Adding a new paragraph (e) to read 

as follows: 

§ 252.242–7005 Contractor Business 

Systems. 

* * * * * 

(e) The requirements in paragraphs (f) 

and (g) of this clause regarding 

withholding of amounts due from 

progress payments and performancebased payments do not apply unless the 

Contractor is receiving progress 

payments or performance-based 

payments under this contract at a rate 

specified in CBAR that includes the 10 

percent incentive based on having 

acceptable business systems without 

significant deficiencies. 

* * * * * 

[FR Doc. 2018–18238 Filed 8–23–18; 8:45 am] 

BILLING CODE 5001–06–C 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 236 

[Docket DARS–2018–0039] 

RIN 0750–AJ75 

Defense Federal Acquisition 

Regulation Supplement: Exemption 

From Design-Build Selection 

Procedures (DFARS Case 2018–D011) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement to implement a 

section of the National Defense 

Authorization Act for Fiscal Year 2018 

that allows for more than five offerors 

on solicitations issued using two-phase 

design-build selection procedures for 

indefinite-delivery, indefinite-quantity 

contracts that exceed $4 million. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

October 23, 2018, to be considered in 

the formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2018–D011, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for 

‘‘DFARS Case 2018–D011’’. Select 

‘‘Submit a Comment Now’’ and follow 

the instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2018–D011’’ on any attached document. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D011 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Heather 

Kitchens, OUSD(A&S)DPC/DARS, Room 

3B941, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Heather Kitchens, telephone 571–372– 

6104. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This rule proposes to revise the 

DFARS to implement section 823 of the 

National Defense Authorization Act for 

Fiscal Year 2018 (Pub. L. 115–91). 

Section 823 amends 10 U.S.C. 2305a to 

allow for more than the maximum 

number of five offerors when a 

solicitation is issued using two-phase 

design-build selection procedures for an 

indefinite-delivery, indefinite-quantity 

(IDIQ) contract that exceeds $4 million. 

Prior to the amendments made by 

section 823, 10 U.S.C. 2305a required 

the head of the contracting activity to 

approve the contracting officer’s 

justification that it is in the best interest 

of the Government to exceed the 

maximum number of five offerors that 

may be selected to submit phase-two 

proposals, if certain conditions apply. 

Section 823 eliminates the requirement 

for such a justification when the 

solicitation is for an IDIQ contract that 

exceeds $4 million. 

II. Discussion and Analysis 

The two-phase design-build selection 

procedures authorized by 10 U.S.C. 

2305a are implemented at Federal 

Acquisition Regulation (FAR) subpart 

36.3. The statutory requirement for a 

contracting officer to justify exceeding 

the maximum number of five offerors is 

implemented at FAR 36.303–1(a)(4). 

This rule proposes to implement section 

823 by adding a new DFARS section 

236.303–1(a)(4), to be used in lieu of the 

procedures at FAR 36.303–1(a)(4). The 

new DFARS section implements 10 

U.S.C. 2305a, as amended by section 

823, by providing— 

• The new authority to exceed the 

five offeror maximum when the 

solicitation is for an IDIQ contract that 

exceeds $4 million; 

• The authority to exceed the five 

offeror maximum when the contracting 

officer’s decision is approved by the 

head of the contracting activity when 

the solicitation is for a contract that 

exceeds $4 million; and 

• A statement that the number of 

offerors is at the contracting officer’s 

discretion when the solicitation is for a 

contract that does not exceed $4 

million. 


sradovich on DSK3GMQ082PROD with PROPOSALSEP24AU18.332</GPH>
Federal Register / Vol. 83, No. 165 / Friday, August 24, 2018 / Proposed Rules 42851 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold and for Commercial Items, 

Including Commercially Available Offthe-Shelf Items 

This rule does not propose to create 

any new provisions or clauses or impact 

any existing provisions or clauses. 

IV. Executive Orders 12866 and 13563 

Executive Order (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 

is not a major rule under 5 U.S.C. 804. 

V. Executive Order 13771 

This proposed rule is not expected to 

be an E.O. 13771, Reducing Regulation 

and Controlling Regulatory Costs, 

regulatory action, because this proposed 

rule is not significant under E.O. 12866. 

VI. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule 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 scope of the rule 

only changes internal Government 

operating procedures for the designbuild selection procedures. However, an 

initial regulatory flexibility analysis has 

been performed and is summarized as 

follows: 

This rule proposes to amend the 

Defense Federal Acquisition Regulation 

(DFARS) to implement section 823 of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2018 (Pub. 

L. 115–91). Section 823 amends 10 

U.S.C. 2305a to allow contracting 

officers to exceed the maximum number 

of five offerors for solicitations issued 

using two-phase design-build selection 

procedures for indefinite-delivery, 

indefinite-quantity (IDIQ) contracts that 

exceed $4 million. 

The objective of this rule is to 

implement the statutory changes to the 

two-phase design-build selection 

procedures by adding a new DFARS 

section 236.303–1(a)(4), to be used in 

lieu of Federal Acquisition Regulation 

23.303–1(a)(4). The new DFARS section 

provides— 

• The new authority to exceed the 

five offeror maximum when the 

solicitation is for an IDIQ contract that 

exceeds $4 million; 

• The authority to exceed the five 

offeror maximum when the contracting 

officer’s decision is approved by the 

head of the contracting activity when 

the solicitation is for a contract that 

exceeds $4 million; and 

• A statement that the number of 

offerors is at the contracting officer’s 

discretion when the solicitation is for a 

contract that does not exceed $4 

million. 

The legal basis for this rule is section 

823 of the NDAA for FY 2018. 

Based on FY 2017 data from the 

Federal Procurement Data System, DoD 

issued approximately 499 new awards 

for construction exceeding $4 million, 

to include IDIQ contracts, purchase 

orders, and orders under basic ordering 

agreements. Of the 499 new awards for 

construction, approximately 305 awards 

were made to 252 unique small 

businesses entities. 

This proposed rule does not include 

any new reporting, recordkeeping, or 

other compliance requirements for small 

entities. However, this rule may create 

additional opportunities for small 

entities, because the rule allows the 

maximum number of offerors selected to 

submit phase-two proposals to exceed 

five, when the solicitation is for an IDIQ 

contract valued at greater than $4 

million, without requiring additional 

justification or approval. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no known significant 

alternative approaches to the proposed 

rule that would meet the requirements 

of the applicable statute. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2018–D011), in 

correspondence. 

VI. Paperwork Reduction Act 

The 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 236 

Government procurement. 

Jennifer Lee Hawes, 

Regulatory Control Officer, Defense 

Acquisition Regulations System. 

Therefore, 48 CFR 236 is proposed to 

be amended as follows: 

PART 236—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

■ 1. The authority citation for part 236 

continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Add subpart 236.3 to read as 

follows: 

Subpart 236.3—Two-Phase Design-Build 

Selection Procedures 

Sec. 

236.303–1 Phase One 

Subpart 236.3—Two-Phase DesignBuild Selection Procedures 

236.303–1 Phase One. 

(4) In lieu of the requirements at FAR 

36.303–1(a)(4)— 

(i) If the contract value exceeds $4 

million, the maximum number of 

offerors specified in the solicitation that 

are to be selected to submit phase-two 

proposals shall not exceed five, unless— 

(A) The solicitation is issued for an 

indefinite-delivery indefinite-quantity 

contract for design-build construction; 

or 

(B) The head of the contracting 

activity, delegable to a level no lower 

than the senior contracting official 

within the contracting activity, approves 

the contracting officer’s decision with 

respect to an individual solicitation, 

that a maximum number greater than 

five is in the best interest of the 

Government and is consistent with the 

purposes and objectives of the twophase selection procedures. The 

decision shall be documented in the 

contract file (10 U.S.C 2305a(d)). 

(ii) If the contract value is at or below 

$4 million, the maximum number of 

offerors specified in the solicitation that 

are to be selected to submit phase-two 

proposals is at the discretion of the 

contracting officer. 

[FR Doc. 2018–18243 Filed 8–23–18; 8:45 am] 

BILLING CODE 5001–06ep–P 


sradovich on DSK3GMQ082PROD with PROPOSALS