Published on 12/04/18 as a proposed DFARS rule in Federal Register (83 FR 62554). Public comment period ends 02/04/2019.

Synopsis: This proposed rule implements section 2804 of the NDAA for FY 2019. Section 2804 removes the dollar limit on small business set-asides of contracts for architectural and engineering services and for construction design, in connection with military construction projects and military family housing projects.

Read the full Proposed Rule here: https://www.federalregister.gov/d/2018-26308 

Background

DoD is proposing to revise the DFARS to implement section 2804 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232), which amends the thresholds at 10 U.S.C. 2855 for small business set-asides of acquisitions for architect-engineer services, including construction design, in connection with military construction projects or military family housing projects. Section 2804 requires these acquisitions to be set aside for small business if valued at less than $1,000,000. Section 2804 also removes the prohibition on setting aside these acquisitions; as a result, these acquisitions may now be set aside for small business, if valued at $1,000,000 or more.

Discussion & Analysis

This rule proposes to delete paragraph (2) at DFARS 219.502-1. This paragraph prohibits small business set-asides of acquisitions for architect-engineer services for military construction or family housing projects valued at $400,000 or more. The remaining paragraphs would be combined into a single unnumbered paragraph. In addition, this rule proposes to revise the dollar value at DFARS 219.502-2, paragraph (a)(iii), from $400,000 to $1,000,000. This paragraph requires acquisitions for architect-engineer services for military construction or family housing projects to be set aside for small business below a certain dollar value.

Regulatory Flexibility Act

DoD is proposing to revise the DFARS to implement section 2804 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232), which amends the thresholds at 10 U.S.C. 2855 for small business set-asides of acquisitions for architect-engineer services, including construction design, in connection with military construction projects or military family housing projects.

The objective of this rule is to implement statutory changes to 10 U.S.C. 2855 by removing the restriction on small business set-asides for these acquisitions and increasing the threshold for small business set-aside to $1,000,000. The legal basis for the rule is section 2804 of the NDAA for FY 2019.

The rule applies to contract awards for architect-engineer services, including construction design. Data from the Federal Procurement Data System shows that, during FY 2017, DoD awarded 232 contracts for architect-engineer services to 187 unique small entities. In FY 2017, DoD awarded 41 contracts for architect-engineer services valued at more than the prior threshold of $400,000 and less than the new threshold of $1,000,000. This rule proposes to require future contracts in this range to be awarded pursuant to FAR part 19 set-aside procedures. DoD also awarded 290 contracts for architect-engineer services valued at more than $1,000,000. This rule proposes to make it possible for future contracts at those dollar values to be awarded pursuant to part 19 set-aside procedures. There are more than 33,000 small entities listed in the Small Business Administration’s Dynamic Small Business Search that provide architect-engineer services. Of these entities, approximately 300 could benefit from this rule.

This rule does not impose any new reporting, recordkeeping, or other compliance requirements for small entities.

Want to explore other proposed DFARS rules and open cases? See the full list here: https://www.acq.osd.mil/dpap/dars/opencases/dfarscasenum/dfars.pdf