VA Acquisition Regulation: Construction and Architect-Engineer Contracts
| Published date | 19 March 2019 |
| Citation | 84 FR 9968 |
| Record Number | 2019-04900 |
| Section | Rules and Regulations |
| Court | Veterans Affairs Department |
Federal Register, Volume 84 Issue 53 (Tuesday, March 19, 2019)
[Federal Register Volume 84, Number 53 (Tuesday, March 19, 2019)]
[Rules and Regulations]
[Pages 9968-9976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04900]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 801, 825, 836, 842, 846, 852, and 853
RIN 2900-AQ18
VA Acquisition Regulation: Construction and Architect-Engineer
Contracts
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is amending and
updating its VA Acquisition Regulation (VAAR) in phased increments to
revise or remove any policy superseded by changes in the Federal
Acquisition Regulation (FAR), to remove procedural guidance internal to
VA into the VA Acquisition Manual (VAAM), and to incorporate any new
agency specific regulations or policies. These changes seek to
streamline and align the VAAR with the FAR and remove outdated and
duplicative requirements and reduce burden on contractors. The VAAM
incorporates portions of the removed VAAR as well as other internal
agency acquisition policy. VA will rewrite certain parts of the VAAR
and VAAM, and as VAAR parts are rewritten, we will publish them in the
Federal Register. In particular, this rulemaking revises VAAR
concerning Construction and Architect-Engineer Contracts, as well as
affected parts covering the Department of Veterans Affairs Acquisition
Regulations System, Foreign Acquisition, Contract Administration and
Audit Services, Quality Assurance, Solicitation Provisions and Contract
Clauses, and Forms.
DATES: This rule is effective on April 18, 2019.
FOR FURTHER INFORMATION CONTACT: Mr. Rafael N. Taylor, Senior
Procurement Analyst, Procurement Policy and Warrant Management
Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-
2787. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On September 7, 2018, VA published a
[[Page 9969]]
proposed rule in the Federal Register (83 FR 45384) which announced
VA's intent to amend regulations for VAAR Case RIN 2900-AQ18 (part
836). In particular, this final rule removes subpart 825.2, Buy
American Act--Construction Materials, and the associated prescribed
clauses under subpart 825.11, Solicitation Provisions and Contract
Clauses, as it is duplicative of the FAR.
In part 836, under 836.203, Government estimate of construction
costs, this rule renumbers and retitles the section to 836.203-70,
Protection of the independent government estimate--sealed bid, and
revises it to more specifically clarify VA procedures to protect the
independent government estimate in sealed bid acquisitions when bid
openings are held. Section 836.204, Disclosure of the magnitude of
construction projects, revises the estimated price ranges to provide a
better measure for contractors to gauge estimated construction costs
for projects of the National Cemetery Administration and the Office of
Construction and Facilities Management.
This rule removes 836.206, Liquidated damages, since the subject
matter is adequately covered in the FAR, as well as 836.209,
Construction contracts with architect-engineer firms, as it contains
internal procedures and moves the coverage to the VAAM. For the same
reason, this rule removes 836.213-4, Notice of award, and 836.213-70,
Notice to proceed.
This rule removes 836.513, Accident prevention, since the
prescribed clause is duplicative of coverage in FAR clause 52.236-1,
Accident Prevention, as well as 836.570, Correspondence, as the clause
it prescribes, 852.236-76, Correspondence, is being removed. The
subject matter will be addressed in the VAAM by directing contracting
officers to include this information in a ``Notice to Proceed'' letter
to the contractor from the contracting officer.
This rule adds 836.580, Notice to bidders--additive or deductive
bid line items, and a prescription requiring the contracting officer to
insert the provision 852.236-92, Notice to Bidders--Additive or
Deductive Bid Line Items, in invitations for bids when the contracting
officer determines that funds may not be available for all the desired
construction features at contract award.
This rule adds coverage under VAAR subpart 842.2, Contract
Administration Services, and 842.271, Contract clause for Government
construction contract administration, to prescribe clause 852.242-70,
Government Construction Contract Administration, that describes
contract administration functions to be delegated under construction
contracts that exceed the micro-purchase threshold for construction. It
describes the role of the designated contracting officer performing
contract administration, as well as certain functions that are
delegated to VA resident engineers, if assigned. It also contains some
language found under the previous clause, 852.236-78, Government
Supervision.
This rule removes 846.312, Construction contracts, which prescribes
clause 852.236-74, Inspection of Construction, as well as the clause.
Under part 852, this rule removes 852.236-74, Inspection of
Construction, since VA Master Specifications provide the requirements
for performing inspections. This rule also removes 852.236-77,
Reference to ``Standards,'' as VA Master Specifications are used in VA
contracts. This rule removes 852.236-78, Government Supervision, and
adds a revised version at 852.242-70, Government Construction Contract
Administration. This rule amends clause 852.236-79, Daily Report of
Workers and Materials, by changing the title to ``Contractor Production
Report'' and revises the clause to reflect use of VA Form 10101 which
is based on industry reporting standards.
In subpart 853.1--General, this rule revises the text of 853.107,
Obtaining forms, to provide the current website address where VA forms
are obtained now: https://www.va.gov/vaforms/. It removes the outdated
address for an old VA office and discontinues the outdated practice of
requesting forms in hard copy directly from the agency policy office.
All forms will now be available online. This rule, under subpart
853.2--Prescription of Forms, revises the list of forms applicable to
VAAR part 836 that are used between VA and its contractors, potential
offerors or bidders, or the general public.
Technical Non-Substantive Change to the Proposed Rule
This rule makes one technical non-substantive change to correct the
amendatory instruction at 801.106 to remove the reference to 852.236-82
through 852.236-84, and its corresponding OMB Control Number.
VA provided a 60-day comment period for the public to respond to
the proposed rule. The comment period for the proposed rule ended on
November 6, 2018 and VA received no comments. This document adopts as a
final rule the proposed rule published in the Federal Register on
September 7, 2018, with the technical non-substantive change noted
above and other minor formatting and/or grammatical edits. This final
rule has Federal Register administrative format changes in the
amendatory text which make no substantive text changes at the affected
sections.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal Governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal Governments or on the private sector.
Paperwork Reduction Act
This final rule impacts seven existing information collection
requirements associated with four Office of Management and Budget (OMB)
control number approvals. The actions in this rule result in multiple
actions affecting some of these information collections, such as: The
outright removal of the information collection; no change in
information collection burdens although titles and number of the
information collection would be slightly revised; or no change to the
existing OMB control number and associated burden.
The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires
that VA consider the impact of paperwork and other information
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).
This final rule contains one provision constituting a collection of
information at 48 CFR 836.606-71, Architect-engineer's proposal,
concerning use of and prescription for VA Form 10-6298, Architect-
Engineer Fee Proposal, which is revised with updated thresholds and FAR
citations, as well as an updated form number. Under the provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new
collection of information is associated with this provision as a part
of this final rule. The information collection requirement for 836.606-
71 is currently approved by OMB and has been assigned OMB control
number 2900-0208. The burden of this information collection remains
unchanged. However, this rule does amend this information collection
requirement to
[[Page 9970]]
renumber the form currently numbered and titled as VA Form 10-6298,
Architect-Engineer Fee Proposal, to now read: VA Form 6298, Architect-
Engineer Fee Proposal. Additionally, older dollar thresholds and FAR
citations in the form are updated to current levels and correct
citations. In accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3521), OMB has approved the reporting or recordkeeping
provisions that are included in the text and form under 836.606-71
cited above against the assigned OMB control number. For the requested
administrative amendments to the form, as required by the Paperwork
Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this
information collection amendment to OMB for its review. Notice of OMB
approval for this information collection will be published in a future
Federal Register document. Other revisions to the associated OMB
control number relating to other provisions of this rule are identified
separately in this submittal.
This final rule also contains one provision constituting a
collection of information at 48 CFR 852.236-72, Performance of Work by
the Contractor, that will remain unchanged. Under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), the collection
of information associated with this provision remains unchanged. The
information collection requirement for 852.236-72 is currently approved
by OMB and has been assigned OMB control number 2900-0422. The burden
of this information collection remains unchanged. In accordance with
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), OMB has
approved the reporting or recordkeeping provision that is included in
the clause at 852.236-72 cited above and against the assigned OMB
control number.
This final rule imposes the following amended information
collection requirements to one of the four existing information
collection approval numbers associated with this rule. Although this
action contains the following provision constituting a collection of
information at 48 CFR 852.236-79, under the provisions of the Paperwork
Reduction Act (44 U.S.C. 3501-3521), no new collection of information
is associated with this provision as a part of this final rule. The
information collection requirement for 852.236-79 is currently approved
by OMB and has been assigned OMB control number 2900-0208. The burden
of this information collection remains unchanged. However, this rule
does amend this information collection requirement to prescribe the new
form--VA Form 10101, Contractor Production Report. As required by the
Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has
submitted this information collection amendment to OMB for its review.
Notice of OMB approval for this information collection will be
published in a future Federal Register document. The currently approved
burden remains unchanged.
This action also contains a provision constituting a collection of
information at 48 CFR 852.236-80, however, under the provisions of the
Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed
collection of information is associated with this provision as a part
of this final rule. The information collection requirement for 852.236-
80 is currently approved by OMB and has been assigned OMB control
number 2900-0422. The currently approved burden associated with this
clause remains unchanged. However, this information collection has been
submitted to OMB to amend the information collection requirement to
make a minor correction to the title of the clause, as stated in
paragraph 1 of the Supporting Statement, to reflect the full name of
the clause--``Subcontracts and Work Coordination'' in lieu of an
abbreviated title reflected on the Supporting Statement--``Work
Coordination.'' The clause was otherwise referenced correctly in the
remainder of the supporting statement. As required by the Paperwork
Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this
information collection amendment to OMB for its review to revise the
title in paragraph 1 of the submitted statement. Notice of OMB approval
for this information collection will be published in a future Federal
Register document.
This final rule removes one of the existing information collection
requirements associated with this action at 48 CFR 852.236-84, Schedule
of Work Progress. Under the provisions of the Paperwork Reduction Act
(44 U.S.C. 3501-3521), while the actual OMB control number will remain
in existence due to other information collections on the same OMB
control number that are approved and active, it discontinues the
inclusion of 852.236-84 under the associated corresponding approved OMB
control number, 2900-0422. As a result of this final rule, the
information collection burden that is associated with clause 852.236-84
is removed. For 48 CFR 852.236-84, Schedule of Work Progress, this
would result in a removal of 1828.5 estimated annual burden hours and
an annual cost savings of $70,800.
As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C.
3507(d)), this final rule removes two of the existing information
collection requirements associated with this action at 48 CFR 852.236-
89, Buy American Act; and 852.236-91, Special Notes. Under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it
discontinues the associated corresponding approved OMB control numbers,
2900-0622 and 2900-0623, respectively. As a result of this final rule,
the information collection burden that is associated with them is
removed. For 48 CFR 852.236-89, Buy American Act, and its corresponding
OMB control number 2900-0622, this results in the removal of 22
estimated annual burden hours and an annual cost savings to respondents
of $852. For 48 CFR 852.236-91, Special Notes, and its corresponding
OMB control number 2900-0623, this results in the removal of 778
estimated annual burden hours and an annual cost savings of $30,122. As
required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)),
VA has submitted these information collection amendments to OMB for its
review. Notice of OMB approval for this information collection will be
published in a future Federal Register document.
Regulatory Flexibility Act
This final rule does not have a significant economic impact on a
substantial number of small entities as they are defined in the
Regulatory Flexibility Act, 5 U.S.C. 601-612. The overall impact of the
rule is of benefit to small businesses owned by Veterans or service-
disabled Veterans as the VAAR is being updated to remove extraneous
procedural information that applies only to VA's internal operating
processes or procedures. VA estimates no cost impact to individual
business will result from these rule updates. This rulemaking clarifies
VA's policy regarding the contracting order of priority for Service-
Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-Owned
Small Businesses (VOSBs) as a result of VA's implementation of 38
U.S.C. 8127-8128 as a result of the U.S. Supreme Court's decision in
Kingdomware Technologies, Inc. vs. the United States, July 25, 2018,
only as it pertains to the application of the VA Rule of Two to
contracts for construction and architect-engineer contracts in
accordance with Public Law 109-461 as codified at 38 U.S.C. 8127-8128.
It does not have an economic impact to individual businesses, and there
are no increased or decreased costs to small business entities. On this
[[Page 9971]]
basis, the final rule does not have a significant economic impact on a
substantial number of small entities as they are defined in the
Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C.
605(b), this regulatory action is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
Executive Orders 12866, 13563 and 13771
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits
of reducing costs, of harmonizing rules, and of promoting flexibility.
E.O. 12866, Regulatory Planning and Review defines ``significant
regulatory action'' to mean any regulatory action that is likely to
result in a rule that may: ``(1) Have an annual effect on the economy
of $100 million or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive order.''
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action, and it has been
determined not be a significant regulatory action under E.O. 12866
because it does not raise novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in this Executive Order. VA's impact analysis can be found as a
supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of the rulemaking and its impact analysis are available on VA's website
at http://www.va.gov/orpm by following the link for VA Regulations
Published from FY 2004 Through Fiscal Year to Date. This final rule is
considered an E.O. 13771 deregulatory action. Details on the estimated
cost savings of this final rule can be found in the rule's economic
analysis and in the PRA section below.
List of Subjects
48 CFR Part 801
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements.
48 CFR Part 825
Customs duties and inspection, Foreign currencies, Foreign trade,
Government procurement.
48 CFR Parts 836 and 852
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 842
Accounting, Government procurement.
48 CFR Parts 846 and 853
Government procurement.
Signing Authority
The Secretary of Veterans Affairs approved this document and
authorized the undersigned to sign and submit the document to the
Office of the Federal Register for publication electronically as an
official document of the Department of Veterans Affairs. Robert L.
Wilkie, Secretary, Department of Veterans Affairs, approved this
document on January 8, 2019, for publication.
Dated: March 12, 2019.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons set out in the preamble, VA amends 48 CFR, parts
801, 825, 836, 842, 846, 852, and 853 as follows:
PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION
SYSTEM
0
1. The authority citation for part 801 continues to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121; 41 U.S.C. 1303; 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
Subpart 801.1--Purpose, Authority, Issuance
801.106 [Amended]
0
2. In 801.106, under the table, columns titled ``48 CFR part or section
where identified and described'' and ``Current OMB control number'':
0
a. Remove the reference to 852.236-82 through 852.236-84 and 852.236-89
and the corresponding OMB Control Number 2900-0622.
0
b. Remove the reference to 852.236-91 and the corresponding OMB Control
Number 2900-0623.
PART 825--FOREIGN ACQUISITION
0
3. The authority citation for part 825 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.
Subpart 825.2 [Removed and Reserved]
0
4. Subpart 825.2, consisting of sections 825.103 and 825.104, is
removed and reserved.
Subpart 825.11 [Removed and Reserved]
0
5. Subpart 825.11, consisting of section 825.1102, is removed and
reserved.
PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
6. The authority citation for part 836 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3), 1303(a)(2)
and 1702; and 48 CFR 1.301-1.304.
Subpart 836.2--Special Aspects of Contracting for Construction
0
7. Section 836.202 is revised to read as follows:
836.202 Specifications.
0
8. Section 836.202-70 is added to read as follows:
836.202-70 Specifications--use of equal products.
Upon approval of the justification documentation required by FAR
11.105, Items peculiar to one manufacturer, the contracting officer
shall include the clause found at 852.236-90, Restriction on Submission
and Use of Equal Products, in solicitations and contracts. The
contracting officer shall complete the clause by inserting the items
which have been approved for restriction to a brand name. This clause
also places offerors or bidders on notice that the ``brand name''
provisions of any clause or provision that may authorize the submission
of an ``equal'' product, shall not apply to the specific items listed
in clause 852.236-90.
[[Page 9972]]
0
9. Section is revised to read as follows:
836.203 Government estimate of construction costs.
0
10. Section 836.203-70 is added to read as follows:
836.203-70 Protection of the independent government estimate--sealed
bid.
For sealed bid acquisitions the contracting officer or bid
custodian is not authorized to release the basis for calculating the
estimate at any time. The person preparing the independent government
estimate (IGE) shall--
(a) Designate the IGE as ``For Official Use Only (FOUO)'';
(b) The contracting officer or bid custodian shall file a sealed
copy of the IGE with the bids. (In the case of two-step acquisitions,
the contracting officer or bid custodian accomplishes this during the
second step);
(c) After the bids are read and recorded during a Public Bid
Opening, remove the ``For Official Use Only (FOUO)'' designation then
read and record the estimate as if it were a bid, in the same detail as
the bids; and
(d) In instances where only one bid has been received, the
government estimate shall not be read by the contracting officer as it
may be needed to conduct negotiations with the offeror.
0
11. Section 836.204 is revised to read as follows:
836.204 Disclosure of the magnitude of construction projects.
The contracting officer shall utilize the estimated price ranges
defined in FAR 36.204(a) through (e) as further supplemented below when
identifying the magnitude of a VA project in advance notices and
solicitations:
(f) For estimated price ranges between $1,000,000 and $5,000,000,
the contracting officer shall identify the magnitude of a VA project in
advance notices and solicitations in terms of the following price
ranges:
(1) Between $1,000,000 and $2,000,000.
(2) Between $2,000,000 and $5,000,000.
(g) Between $5,000,000 and $10,000,000.
(h) For estimated price ranges greater than $10,000,000, the
contracting officer shall identify the magnitude of a VA project in
advance notices and solicitations in terms of one of the following
price ranges:
(1) Between $10,000,000 and $20,000,000.
(2) Between $20,000,000 and $50,000,000.
(3) Between $50,000,000 and $100,000,000.
(4) Between $100,000,000 and $150,000,000.
(5) Between $150,000,000 and $200,000,000.
(6) Between $200,000,000 and $250,000,000.
(7) More than $250,000,000.
836.206 [Removed]
0
12. Section 836.206 is removed.
836.209 [Removed]
0
13. Section 836.209 is removed.
836.213, 836.213-4, and 836.213-70 [Removed]
0
14. Sections 836.213, 836.213-4, and 836.213-70 are removed.
Subpart 836.5--Contract Clauses
0
15. Section 836.500 is revised to read as follows:
836.500 Scope of subpart.
The clauses and provisions prescribed in this subpart are set forth
for use in fixed-price construction contracts in addition to those
prescribed in FAR subpart 36.5.
0
16. Section 836.501 is revised to read as follows:
836.501 Performance of work by the contractor.
The contracting officer shall insert the clause at 852.236-72,
Performance of Work by the Contractor, in solicitations and contracts
for construction that contain the FAR clause at 52.236-1, Performance
of Work by the Contractor, except those awarded pursuant to subpart
819.70. When the solicitations or contracts include a section entitled
``Network Analysis System (NAS),'' the contracting officer shall use
the clause with its Alternate I.
836.513 [Removed]
0
17. Section 836.513 is removed.
0
18. Section 836.521 is revised to read as follows:
836.521 Specifications and drawings for construction.
The contracting officer shall insert the clause at 852.236-71,
Specifications and Drawings for Construction, in solicitations and
contracts for construction that include the FAR clause at 52.236-21,
Specifications and Drawings for Construction.
836.570 [Removed]
0
19. Section 836.570 is removed.
836.571 [Removed]
0
20. Section 836.571 is removed.
836.572 [Removed]
0
21. Section 836.572 is removed.
0
22. Section 836.573 is revised to read as follows:
836.573 Contractor production report.
The contracting officer shall insert the clause at 852.236-79,
Contractor Production Report, in solicitations and contracts for
construction expected to exceed the simplified acquisition threshold.
The contracting officer may, when in the best interest of the
Government, insert the clause in solicitations and contracts for
construction when the contract amount is expected to be at or below the
simplified acquisition threshold.
0
23. Section 836.574 is revised to read as follows:
836.574 Subcontracts and work coordination.
The contracting officer shall insert the clause at 852.236-80,
Subcontracts and Work Coordination, in invitations for bids and
contracts for construction expected to exceed the micro-purchase
threshold for construction. When the solicitations or contracts are for
new construction work with complex mechanical-electrical work, the
contracting officer may use the clause with its Alternate I.
836.575 [Removed]
0
24. Section 836.575 is removed.
836.576 [Removed]
0
25. Section 836.576 is removed.
836.577 [Removed]
0
26. Section 836.577 is removed.
836.579 [Removed]
0
27. Section 836.579 is removed.
0
28. Section 836.580 is added to read as follows:
836.580 Notice to bidders--additive or deductive bid line items.
The contracting officer may include the provision 852.236-92,
Notice to Bidders--Additive or Deductive Bid Line Items, in invitations
for bids when the contracting officer determines that funds may not be
available for all the desired construction features at contract award.
Subpart 836.6--Architect-Engineer Services
836.602, 836.602-1, 836.602-2, 836.602-4, and 836.602-5 [Removed]
0
29. Sections 836.602, 836.602-1, 836.602-2, 836.602-4, and 836.602-5
are removed.
[[Page 9973]]
0
30. Section 836.603 is revised to read as follows:
836.603 Collecting data on and appraising firms' qualifications.
The Associate Executive Director, Office of Facilities Engineering,
for Central Office; the Director, Office of Construction Management,
for National Cemetery Administration; the Senior Executive Service
(SES) official for Administration and Facilities for Veterans Benefits
Administration; and the Chief, Engineering Service, for field
facilities, are responsible for collecting Standard Forms 330 and
maintaining a data file on architect-engineer qualifications.
0
31. Sections 836.606, 86.606-70, and 86.606-71 are revised to read as
follows:
836.606 Negotiations.
836.606-70 Architect-engineer firms' proposal.
(a) When the contract price is estimated to be $50,000 or more, the
contracting officer shall use VA Form 6298, Architect-Engineer Fee
Proposal, to obtain the proposal and supporting cost data from the
proposed contractor and subcontractor in the negotiation of an A-E
contract for design services.
(b) In obtaining A-E services for research study, seismic study,
master planning study, construction management and other related
services contracts, the contracting officer shall use VA Form 6298,
supplemented or modified as needed for the particular project type.
836.606-71 Application of 6 percent architect-engineer fee
limitation.
(a) The production and delivery of designs, plans, drawings, and
specifications shall not exceed 6 percent of the estimated cost of
construction. Other A-E fees are not included in this 6 percent. Such
fees are delineated in reference (c) below.
(b) The 6 percent limit also applies to contract modifications,
including modifications involving:
(1) Work not initially included in the contract. Apply the 6
percent limit to the revised total estimated construction cost.
(2) Redesign. Apply the 6 percent limit as follows--
(i) Add the estimated construction cost of the redesign features to
the original estimated construction cost;
(ii) Add the contract cost for the original design to the contract
cost for redesign; and
(iii) Divide the total contract design cost by the total estimated
construction cost. The resulting percentage may not exceed the 6
percent statutory limitation.
(c) The 6 percent fee limitation does not apply to the following
architect or engineer services:
(1) Investigative services including but not limited to--
(i) Determination of program requirements, including schematic or
preliminary plans and estimates;
(ii) Determination of feasibility of proposed project;
(iii) Preparation of measured drawings of existing facility;
(iv) Subsurface investigation;
(v) Structural, electrical, and mechanical investigation of
existing facility;
(vi) Surveys: topographic, boundary, utilities, etc.;
(vii) Environmental services;
(viii) Geo-Tech studies; and
(ix) Feasibility studies.
(2) Special consultant services that are not normally available in
organizations of architects or engineers and that are not specifically
applied to the actual preparation of working drawings or specifications
of the project for which the service are required.
(3) Other--
(i) Reproduction of approved designs through models, color
renderings, photographs, or other presentation media;
(ii) Travel and per diem allowances other than those required for
the development and review of working drawings and specifications;
(iii) Supervision or inspection of construction, review of shop
drawings or samples, and other services performed during the
construction phase;
(iv) All other services that are not an integral part of the
production and delivery of plans, designs, and specifications; and
(v) The cost of reproducing drawings and specifications for bidding
and their distribution to prospective bidders and plan file rooms.
836.606-72 and 836.606-73 [Removed]
0
32. Sections 836.606-72 and 836.606-73 are removed.
0
33. Subpart 836.70, consisting of sections 836.7000 and 836.7001, is
added to read as follows:
Subpart 836.70--Unique Forms for Contracting for Construction,
Architect-Engineer Services, and Dismantling, Demolition, or
Removal of Improvements
836.7000 Scope of subpart.
This subpart sets forth requirements for the use of VA unique
forms, as prescribed in this part, for contracting for construction,
architect-engineer services, or dismantling, demolition, or removal of
improvements. See part 853.
836.7001 Unique construction and architect-engineer services forms.
Contracting officers may use the following forms, as prescribed in
this subpart, for construction, architect-engineer services or
dismantling, demolition, or removal of improvements contracts as set
forth below and in the referenced prescriptions:
(a) VA Form 6298, Architect-Engineer Fee Proposal (see 853.236-70).
VA Form 6298, Architect-Engineer Fee Proposal, shall be used as
prescribed in 836.606-70.
(b) VA Form 2138, Order for Supplies or Services (Including Task
Orders for Construction or A-E Services) (see 853.236-71). VA Form
2138, Order for Supplies or Services (Including Task Orders for
Construction or A-E Services), may be used for ordering supplies or
services, including task orders for Construction or A-E services, to
include dismantling, demolition, or removal of improvements.
(c) VA Form 10101, Contractor Production Report (see 853.236-72).
Contractors may use VA Form 10101, Contractor Production Report or a
contractor generated form containing the same type of information
contained in the form, as required by 836.573 which prescribes the
clause at 852.236-79, Contractor Production Report.
PART 842--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
34. The authority citation for part 842 is amended to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.
0
35. Subpart 842.2, consisting of section 842.271, is added to read as
follows:
Subpart 842.2--Contract Administration Services
842.271 Contract clause for Government construction contract
administration.
The contracting officer shall insert the clause at 852.242-70,
Government Construction Contract Administration, in solicitations and
contracts for construction expected to exceed the micro-purchase
threshold for construction.
PART 846--QUALITY ASSURANCE
0
36. The authority citation for part 846 is revised to read as follows:
[[Page 9974]]
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121; 41 U.S.C. 1303; 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
846.312 [Removed]
0
37. Section 846.312 is removed.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
38. The authority citation for part 852 continues to read as follows:
Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C.
121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.
0
39. Section 852.236-71 is revised to read as follows:
852.236-71 Specifications and Drawings for Construction.
As prescribed in 836.521, insert the following clause:
Specifications and Drawings for Construction (Apr 2019)
The clause entitled ``Specifications and Drawings for
Construction'' in FAR 52.236-21 is supplemented as follows:
(a) The Contracting Officer's interpretation of the drawings and
specifications will be final, subject to the Disputes clause.
(b) The Contractor shall--
(1) Check all drawings and specifications furnished immediately
upon receipt;
(2) Compare all drawings and the specifications, and verify the
figures before laying out the work;
(3) Promptly notify the Contracting Officer of any
discrepancies;
(4) Be responsible for any errors that might have been avoided
by complying with this paragraph (b); and
(5) Reproduce and print contract drawings and specifications as
needed.
(c) In general--
(1) Drawings of greater detail shall govern over drawings of
lesser detail unless specifically noted otherwise; and
(2) Figures and numerical quantities noted on drawings govern
over scale measurements.
(d) Omissions from the drawings or specifications or the
misdescription of details of work that are manifestly necessary to
carry out the intent of the drawings and specifications, or that are
customarily performed, shall not relieve the Contractor from
performing such omitted or misdescribed details of the work. The
Contractor shall perform such details as if fully and correctly set
forth and described in the drawings and specifications.
(e) The work shall conform to the specifications and the
contract drawings identified on the following index of drawings:
Title File Drawing No.
(End of clause)
0
40. Section 852.236-72 is revised to read as follows:
852.236-72 Performance of Work by the Contractor.
As prescribed in 836.501, insert the following clause:
Performance of Work by the Contractor (Apr 2019)
(a) In accordance with FAR 52.236-1, the contract work
accomplished on the site by laborers, mechanics, and foreman/
superintendent on the Contractor's payroll and under their direct
supervision shall be used in establishing the percent of work to be
performed by the Contractor. Cost of material and equipment
installed by such labor may be included. The work by the
Contractor's executive, administrative and clerical forces shall be
excluded in establishing compliance with the requirements of this
clause.
(b) The Contractor shall submit, simultaneously with the
schedule of costs required by the Payments under Fixed-Price
Construction Contracts clause of the contract, a statement
designating the portions of contract work to be performed with the
Contractor's own forces. The approved schedule of costs will be used
in determining the value of a work activity/event, or portions
thereof, of the work for the purpose of this article.
(c) Changes to established activity/event identifiers or
responsibility codes for Contractor activities shall not be made
without approval from the Contracting Officer.
(d) In the event the Contractor fails to comply with FAR 52.236-
1, Performance of Work by the Contractor, the Contracting Officer
will withhold retention in the amount of 15% of the value of any
work activity/element being invoiced that was not authorized by the
Contracting Officer to be performed by someone other than the prime
Contractor's own workforce.
(End of clause)
Alternate I (APR 2019). For requirements which include a Network
Analysis System (NAS), substitute the following paragraph (b) for
paragraph (b) of the basic clause:
(b) The Contractor shall submit, simultaneously with the cost per
activity of the construction schedule required by Section 01310 or
01311, NETWORK ANALYSIS SYSTEM, a responsibility code for all
activities of the network for which the Contractor's forces will
perform the work. The cost of these activities will be used in
determining the portions of the total contract work to be executed by
the Contractor's forces for the purpose of this article.
852.236-74 [Removed and Reserved]
0
41. Section 852.236-74 is removed and reserved.
852.236-76 [Removed and Reserved]
0
42. Section 852.236-76 is removed and reserved.
852.236-77 [Removed and Reserved]
0
43. Section 852.236-77 is removed and reserved.
852.236-78 [Removed and Reserved]
0
44. Section 852.236-78 is removed and reserved.
0
45. Section 852.236-79 is revised to read as follows:
852.236-79 Contractor Production Report.
As prescribed in 836.573, insert the following clause:
Contractor Production Report (Apr 2019)
(a) The Contractor shall furnish to the resident engineer, for
each workday, a consolidated report for the preceding workday.
Reporting shall begin from date of mobilization until the date of
final acceptance except for authorized holidays. VA Form 10101,
Contractor Production Report, or a Contractor generated form
containing the same type of information shall be signed, dated and
submitted by the Contractor superintendent.
(b) Each report shall include and specifically identify at least
one safety topic germane to the jobsite that day.
(End of clause)
0
46. Section 852.236-80 is revised to read as follows:
852.236-80 Subcontracts and Work Coordination.
As prescribed in 836.574, insert the following clause:
Subcontracts and Work Coordination (Apr 2019)
(a) Nothing contained in this contract shall be construed as
creating any contractual relationship between any subcontractor and
the Government. Divisions or sections of specifications are not
intended to control the Contractor in dividing work among
subcontractors, or to limit work performed by any trade.
(b) The Contractor shall be responsible to the Government for
acts and omissions of his/her own employees, and of the
subcontractors and their employees. The Contractor shall also be
responsible for coordination of the work of the trades,
subcontractors, and material suppliers.
(c) The Government or its representatives will not undertake to
settle any differences between the Contractor and subcontractors or
between subcontractors.
(d) The Government reserves the right to refuse to permit
employment on the work, or require dismissal from the work, of any
subcontractor or subcontractor employee who, by reason of previous
unsatisfactory work on Department of Veterans Affairs projects or
for any other reason, is considered by the Contracting Officer to be
incompetent, careless, or otherwise objectionable.
(End of clause)
Alternate I (APR 2019). For new construction work with complex
mechanical-electrical work, the
[[Page 9975]]
following paragraph relating to work coordination may be substituted
for paragraph (b) of the basic clause:
(b) The Contractor shall be responsible to the Government for acts
and omissions of his/her own employees, and subcontractors and their
employees. The Contractor shall also be responsible for coordination of
the work of the trades, subcontractors, and material suppliers. The
Contractor shall, in advance of the work, prepare coordination drawings
showing the location of openings through slabs, the pipe sleeves and
hanger inserts, as well as the location and elevation of utility lines,
including, but not limited to, conveyor systems, pneumatic tubes,
ducts, and conduits and pipes two inches and larger in diameter. These
drawings, including plans, elevations, and sections as appropriate,
shall clearly show the manner in which the utilities fit into the
available space and relate to each other and to existing building
elements. Drawings shall be of appropriate scale to satisfy the
previously stated purposes, but not smaller than \3/8\-inch scale.
Drawings may be composite (with distinctive colors for the various
trades) or may be separate but fully coordinated drawings (such as
sepias or photographic paper reproducibles) of the same scale. Separate
drawings shall depict identical building areas or sections and shall be
capable of being overlaid in any combination. The submitted drawings
for a given area of the project shall show the work of all trades that
will be involved in that particular area. Six complete composite
drawings or six complete sets of separate reproducible drawings shall
be received by the Government not less than 20 days prior to the
scheduled start of the work in the area illustrated by the drawings,
for the purpose of showing the Contractor's planned methods of
installation. The objectives of such drawings are to promote carefully
planned work sequence and proper trade coordination, in order to assure
the expeditious solutions of problems and the installation of lines and
equipment as contemplated by the contract documents while avoiding or
minimizing additional costs to the Contractor and to the Government. In
the event the Contractor, in coordinating the various installations and
in planning the method of installation, finds a conflict in location or
elevation of any of the utilities with themselves, with structural
items or with other construction items, he/she shall bring this
conflict to the attention of the Contracting Officer immediately. In
doing so, the Contractor shall explain the proposed method of solving
the problem or shall request instructions as to how to proceed if
adjustments beyond those of usual trades' coordination are necessary.
Utilities installation work will not proceed in any area prior to the
submission and completion of the Government review of the coordinated
drawings for that area, nor in any area in which conflicts are
disclosed by the coordination drawings, until the conflicts have been
corrected to the satisfaction of the Contracting Officer. It is the
responsibility of the Contractor to submit the required drawings in a
timely manner consistent with the requirements to complete the work
covered by this contract within the prescribed contract time.
852.236-84 [Removed and Reserved]
0
47. Section 852.236-84 is removed and reserved.
852.236-85 [Removed and Reserved]
0
48. Section 852.236-85 is removed and reserved.
852.236-86 [Removed and Reserved]
0
49. Section 852.236-86 is removed and reserved.
852.236-87 [Removed and Reserved]
0
50. Section 852.236-87 is removed and reserved.
852.236-89 [Removed and Reserved]
0
51. Section 852.236-89 is removed and reserved.
0
52. Section 852.236-90 is revised to read as follows:
852.236-90 Restriction on Submission and Use of Equal Products.
As prescribed in 836.202-70, insert the following clause in
solicitations and contracts when it is determined that only one product
will meet the Government's minimum needs and the submission of
``equal'' products is not permitted:
Restriction on Submission and Use of Equal Products (Apr 2019)
(a) This clause applies to the following items: [Contracting
Officer fill-in]
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(b) Notwithstanding the ``Material and Workmanship'' clause of
this contract, FAR 52.236-5(a), nor any other clause or provision,
only brand name products for the items listed above will be
authorized for use on this contract.
(End of clause)
852.236-91 [Removed and Reserved]
0
53. Section 852.236-91 is removed and reserved.
0
54. Section 852.236-92 is added as follows:
852.236-92 Notice to Bidders--Additive or Deductive Bid Line Items.
As prescribed in 836.580, insert the following provision:
Notice to Bidders--Additive or Deductive Bid Line Items (Apr 2019)
(a) Additive or deductive line items in the bid schedule shall
be evaluated to determine the low offeror and the items to be
awarded. The evaluation shall be made as follows--
(1) Prior to the opening of bids, the Government will determine
the amount of funds available for the project.
(2) The low bid shall be the Bidder that--
(i) Is otherwise eligible for award; and
(ii) Offers the lowest aggregate amount for the first or base
line item, plus or minus (in the order stated in the list of
priorities in the bid schedule) those additive or deductive line
items that provide the most features within the funds determined
available.
(3) All bids shall be evaluated on the basis of the same
additive or deductive line items.
(i) If adding another item from the bid schedule list of
priorities would make the award exceed the available funds for all
offerors, the Contracting Officer will skip that item and go to the
next item from the bid schedule of priorities; and
(ii) Add that next item if an award may be made that includes
that line item and is within the available funds.
(b) The Contracting Officer will use the list of priorities in
the bid schedule only to determine the low offeror. After
determining the low offeror, an award may be made on any combination
of items if--
(1) It is in the best interest of the Government;
(2) Funds are available at the time of award; and
(3) The low offeror's price for the combination to be awarded is
less than the price offered by any other responsive, responsible
offeror.
(c) Example: ``The amount available is $100,000. Offeror A's
base bid and four additives (in the order stated in the list of
priorities in the bid schedule) are $85,000, $10,000, $8,000,
$6,000, and $4,000. Offeror B's base bid and four additives are
$80,000, $16,000, $9,000, $7,000, and $4,000. Offeror A is the low
offeror. The aggregate amount of offeror A's bid for purposes of
award would be $99,000, which includes a base bid plus the first and
fourth additives. The second and third additives were skipped
because each of them would cause the aggregate bid to exceed
$100,000.''
(End of provision)
0
55. Section 852.242-70 is added as follows:
852.242-70 Government Construction Contract Administration.
As prescribed in 842.271, insert the following clause. This is a
fill-in clause.
[[Page 9976]]
Government Construction Contract Administration (Apr 2019)
(a) Contract administration functions set forth in FAR 42.302
are hereby delegated to:
[Insert name and office address of Contracting Officer]
(b) The work will be under the direction of a Department of
Veterans Affairs Contracting Officer, who may designate another VA
employee to act as resident engineer at the construction site.
(c) Except as provided below, the resident engineer's directions
will not conflict with or change contract requirements. Within the
limits of any specific authority delegated by the Contracting
Officer, the resident engineer may, by written direction, make
changes in the work. The Contractor shall be advised of the extent
of such authority prior to execution of any work under the contract.
(d) The Contracting Officer identified in paragraph (a) may
further delegate the responsibilities below to the following
warranted personnel on site:
[Insert name and office address of individual with limited
authority]
(1) Conduct post-award orientation conferences.
(2) Issue administrative changes, correcting errors or omissions
in typing, Contractor address, facility or activity code, remittance
address, computations which do not require additional contract
funds, and other such changes (see FAR 43.101).
(3) For actions not to exceed $ [insert dollar amount] negotiate
and execute supplemental agreements incorporating Contractor
proposals resulting from change orders issued under the Changes
clause.
(4) Negotiate and execute supplemental agreements changing
contract delivery schedules where the time extension does not exceed
[insert number] calendar days.
(End of clause)
PART 853--FORMS
0
56. The authority citation for part 853 is amended to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.
Subpart 853.1--General
0
57. Section 853.107 is revised to read as follows:
853.107 Obtaining forms.
VA forms may be obtained online at https://www.va.gov/vaforms/ or
upon request from any VA contracting office.
Subpart 853.2--Prescription of Forms
0
58. Sections 853.236 and 853.236-70 are revised to read as follows:
853.236 Construction and architect-engineer contracts.
853.236-70 VA Form 6298, Architect-Engineer Fee Proposal.
See 836.7001(a).
0
59. Sections 836.236-71 and 853.236-72 are added to read as follows:
853.236-71 VA Form 2138, Order for Supplies or Services (Including
Task Orders for Construction or A-E Services).
See 836.7001(b).
853.236-72 VA Form 10101, Contractor Production Report.
See 836.7001(c).
[FR Doc. 2019-04900 Filed 3-18-19; 8:45 am]
BILLING CODE 8320-01-P
