DBIA Comments on New FAR Rule
Last year, after DBIA worked tirelessly with our coalition partners (American Institute of Architects, Associated General Contractors, American Council of Engineering Companies, American Society of Civil Engineers and the American Subcontractors Association) for more than a year to educate Senators, Representatives and their staff on the importance of following design-build best practices when using two-step design-build in its proper form, Congress passed a law to require written justification by the “head of contracting activity” when more than five finalists are shortlisted in a two-step design-build defense contract of more than $4 million.
After Congress passes a law, it is up to the executive branch to implement it, so recently a proposed rule was released on how to implement that law, which DBIA was happy to send comments on. The expanded proposed rule covers both civil and defense contracts, which DBIA supports. Our comments are below:
Design-Build Institute of America comments on the Federal Acquisition Regulation (FAR) Proposed Rule: Federal Acquisition Regulation: Improvement in Design-Build Construction Process (FAR Case 2015-018)
The Design-Build Institute of America (DBIA) generally supports the proposed rule in FAR Case 2015-018 by the Department of Defense (DoD), the General Services Administration (GSA) and the National Aeronautics and Space Administration (NASA) amending 48 CFR Part 36 – Construction and Architect-Engineering Contracts.
The proposed rule will encourage agencies to better follow two-phase design-build selection procedures as described in FAR part 36. The current procedures describe a two-phase process, wherein phase one requires “a statement of the maximum number of offers that will be selected to submit phase-two proposals.” Further, that maximum number “shall not exceed five.”
To obtain the maximum competitive effort and achieve best value, it is critical to limit phase-two proposals, and it is a design-build best practice. Without proper limits on phase-two proposers, qualified design-build teams are discouraged from participating. This is true for a number of reasons but generally is due to the high cost of preparing a phase-two proposal weighed against a diminished opportunity in an over-crowded field to be awarded the final contract. This especially is true for smaller businesses. Further, government agencies can be overburdened with reviewing phase-two proposals that are not the most highly qualified.
While current FAR regulations says phase-two finalists “shall not exceed five,” as written, the regulations give the contracting officer wide latitude to exceed this limit merely if the officer determines “that a number greater than five is in the Government’s interest and is consistent with the purposes and objectives of the two-phase design-build selection procedures.”
The proposed rule encourages the intent of the two-phase procedures and furthers best practices by merely requiring that the head of contracting activity approve any solicitations that exceed five offerors in phase-two for construction acquisitions valued at greater than $4 million. Further, the contracting officer shall document this determination in the contract file.
These are reasonable minor adjustments that will encourage better use of design-build selection procedures and promote best value.
The Design-Build Institute of America is the only organization that defines, teaches and promotes best practices in design-build. DBIA represents the entire design and construction industry. As an institute, our primary objective is to provide education, training, networking and support to all players involved in the design and construction industry. Members span the entire spectrum of design and construction professionals, including architects, engineers, specialty contractors, owners, consultants, lawyers, business development professionals, students and teachers. In addition to the DBIA headquarters in Washington, D.C., a network of 14 Regions work collaboratively to delivery products and services to members and customers.
Thank you for the opportunity to provide these comments.