[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57452-57453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19469]


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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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