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Carl Levin and Howard P. 'Buck' McKeon National Defense Authorization Act for Fiscal Year 2015

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I posted the fifteenth annual analysis of the National Defense Authorization Act yesterday. These acts are not solely for the Defense Department. Civilian agencies will be affected by parts of them.

The committees promised more and even greater "improvements" in federal contracting next year.

See the link to the home page which is at the top left of this page.

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Thanks once again, Bob.

I have been loosely following some of the Design-Build proposals that the Design-Build Institute of America (DBIA) has been advancing in Congress. Section 814 of the 2015 NDAA implemented some of them. It was interesting that DBIA has been pressing for tighter restrictions on the use of the one step turnkey Design-Build process that is currently authorized under Title 10 for the Armed Forces for Military Construction and under Title 41 for the Coast Guard. The legislation that DBIA got introduced in the House would have originally greatly restricted the use of one step for projects over $750k unless the Head of the Agency approved a waiver. In addition, the legislation would also normally prohibit short-listing more than 5 Phase One proposers to compete for award in Phase Two under the 2 Phase Design-Build procedures that are in both Titles 10 and 41 (Two Phase D-B is implemented in FAR 36.3).

The final NDAA, as passed (Section 814) didn't include the industry desired restrictions on One Step in Section 814. In addition, Section 2804 expanded its authorized use by adding Repair projects and construction of facilities as part of an authorized security assistance activity under 10 USC 2862 , likely at the request of the Army Corps of Engineers and perhaps NAVFAC. It also only restricts short-listing more than five phase one proposers in the Two-Phase process under 10 USC 2305a, not under the 41 USC 253m, Two-Phase process (that covers other than Defense funded D-B projects).

The problem with the industry proposal was that it only mentioned Title 41 for the one step restrictions. As far as I know, the Coast Guard is the only agency with one step authorization under Title 41. The Corps of Engineer's Civil Works program falls under Title 41, so one step isnt authorized for those projects. DBIA's main target was the Military's extensive use of the One Step process for MILCON projects. However, that process falls under Title 10, not Title 41. As a DBIA member, I advised the DBIA staff of that fact.

I know that the House committees always ask for reaction and input from the Corps of Engineers, NAVFAC, Air Force, etc. concerning legislative proposals that affect our design and construction programs. I also know that the Corps of Engineers Office of Counsel had determined that the One Step Turnkey process in 10 USC 2862 is only allowed for MILCON, Minor MILCON and Minor Construction projects using Military O&M funding but not for the many military facility repair projects that would be good candidates for the design-build process. This had greatly aggravated the Corps Districts who want to use design-build for smaller non-MILCON funded repair and renewal projects for their Installation clients. The Two-Phase process isn't practical for small repair projects unless using task orders under an ID/IQ MATOC contract vehicle. Those Corps' Base ID/IQ contracts are being awarded using the 2 Phase process. I don't know for sure but think that the Corps probably was able to get Congress to include repair projects under the Title 10 One Step authorization in the final Bill. In addition, the restrictions on short-listing for the 41 USC 253m 2 Phase process were dropped in the final language, as enacted.

I also noticed that Section 824 of the NDAA prohibits the use of Reverse Auctions for Design-Build oprojects. It would amaze me that anyone would have use reverse auctions for D-B!!!

Finally, I noticed that Section 5504, which was NOT enacted, would have authorized a form of qualifications based selection as a new source selection technique as quoted below. The technique would use a pre-established price where proposers competed solely on the basis of non-price factors (e.g., qualifications and/or quality, and/or scope, etc.). I know that the DBIA was trying to introduce the idea of qualifications based selection for Design-Build projects. However, I don't know if they were a proponent in this matter. I know that the process below has been discussed in Nash and Cibinic Reports and in this Forum before. Perhaps Vern Edwards or someone else can provide some insight into this initiative.


Section 3306(d) of title 41, United States Code, is amended--

(1) by striking `or' at the end of paragraph (1);

(2) by striking the period and inserting `; or' at the end of paragraph (2); and

(3) by adding at the end the following new paragraph:

`(3) stating in the solicitation that the award will be made using a fixed price technical competition, under which all offerors compete solely on nonprice factors and the fixed award price is pre-announced in the solicitation.'.

EDIT: I'm not a very good researcher but did find this as Section 5503 in the proposed Bill for the Information Technology Reform Act that was partly incorporated into the House version for the National Defense Authorization Act as well as in similar earlier year proposed legislation. It must be somebody's yearly attempt to add this acquisition technique.

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I finally found House Report HR 113-668 as reported by the Oversight and Reform Committee on the Design-Build Efficiency and Jobs Act of 2014. It provides an excellent background on the purpose of the Bill as amended out of committee. The final provisions as enacted into law failed to include the restrictions on use of the One Step D-B method that seem to be well justified in the House Report It also did not include any restrictions on short-listing more than five firms in Phase 1 of the 2 Phase D-B method for solicitations by the Civilian Agencies or the Corps of Engineers on Civil Works Projects. That baffles me. If anyone has access to the background for those final amendments, I would appreciate a lead. Thanks.

See. https://www.congress.gov/congressional-report/113th-congress/house-report/668

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