On October 8, 2015, the U.S. Department of Defense (“DoD”), National Aeronautics and Space Administration (“NASA”), and the U.S. General Services Administration (“GSA”) jointly proposed a change to the Federal Acquisition Regulation (“FAR”) that would make it more difficult for agencies to bypass the existing five-bidder limitation in two-phase procurements for design-build projects worth more than $4 million.  The proposed rule, which was published in the Federal Register, aims to improve the quality of the proposals submitted in such procurements.

In phase one of a two-phase design-build construction procurement, contractors provide the procuring agency with their qualifications to perform the design and construction work rather than a full proposal.  Based upon those qualifications, agencies are supposed to select no more than five bidders to advance to phase two and submit detailed proposals.  However, agencies can—and frequently do—bypass the five-bidder limitation with a contracting official’s permission.  Indeed, it is not uncommon to see as many as 10 or 15 contractors competing in the second phase of the process.

The proposed rule, which would implement Section 814 of the recently-enacted National Defense Authorization Act, seeks to make it more difficult for agencies to skirt the five-bidder limitation in two-phase design-build procurements valued at more than $4 million by amending the FAR to require approval from “the head of the contracting activity, delegable to a level no lower than the senior contracting official” before allowing more than five bidders to advance to phase two.  The Federal Register proposal notes that, by making it more difficult to exceed the five-bidder limit, this new rule is intended to provide an incentive for those contractors that make it to phase two to submit better proposals because “[a] potential offeror may be more inclined to invest their pre-award efforts on solicitations where they have an increased chance of award.”

Comments on the proposed rule are due on or before December 7, 2015.

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Photo of Hunter Bennett Hunter Bennett

Hunter Bennett regularly represents government contractors in bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also counsels clients in a wide range of formation and disputes issues. Prior to entering private practice, he served as a…

Hunter Bennett regularly represents government contractors in bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also counsels clients in a wide range of formation and disputes issues. Prior to entering private practice, he served as a Trial Attorney with the U.S. Department of Justice, where he was a member of the Department’s Bid Protest Team and frequently defended the United States against bid protests filed in the Court of Federal Claims.

During his tenure at the Department of Justice, Hunter served as lead counsel for the United States in dozens of cases involving complex commercial disputes. He also oversaw the litigation of all habeas corpus cases filed by Guantanamo Bay detainees that were pending before the Honorable Gladys Kessler in the United States District Court for the District of Columbia, and personally tried five detainee habeas cases. Additionally, Hunter briefed and/or argued more than 20 cases in the United States Court of Appeals for the Federal Circuit.

Hunter began his career as a prosecutor in the Philadelphia District Attorney’s Office, where he served as lead counsel in over 200 habeas corpus cases filed in the United States District Court for the Eastern District of Pennsylvania, and successfully briefed and/or argued multiple cases in the United States Court of Appeals for the Third Circuit.

In his spare time, Hunter plays bass guitar in the band Dot Dash, whose song “Shopworn Excuse” was dubbed “a jangly piece of heaven” by USA Today.

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