VA Acquisition Regulation: Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace; Protection of Privacy and Freedom of Information; Other Socioeconomic Programs; and Contract Modifications
| Published date | 30 August 2019 |
| Citation | 84 FR 45679 |
| Record Number | 2019-18524 |
| Section | Rules and Regulations |
| Court | Veterans Affairs Department |
Federal Register, Volume 84 Issue 169 (Friday, August 30, 2019)
[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45679-45683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18524]
[[Page 45679]]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 801, 823, 824, 826, 836, 843, and 852
RIN 2900-AQ24
VA Acquisition Regulation: Environment, Energy and Water
Efficiency, Renewable Energy Technologies, Occupational Safety, and
Drug-Free Workplace; Protection of Privacy and Freedom of Information;
Other Socioeconomic Programs; and Contract Modifications
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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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revise or remove any policy superseded by changes in the Federal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 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the VAAR with the FAR and remove outdated and duplicative requirements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, VA will publish them in the Federal Register. In particular,
this rulemaking adds or revises VAAR coverage concerning Environment,
Energy and Water Efficiency, Renewable Energy Technologies,
Occupational Safety, and Drug-Free Workplace; Protection of Privacy and
Freedom of Information; Other Socioeconomic Programs; and Contract
Modifications, as well as affected parts covering Department of
Veterans Affairs Acquisition Regulation System, Construction and
Architect-Engineer Contracts and Solicitation Provisions and Contract
Clauses.
DATES: This rule is effective on September 30, 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 November 29, 2018, VA published a
proposed rule in the Federal Register (83 FR 61365) which announced
VA's intent to amend regulations for VAAR Case RIN 2900-AQ24--
Environment, Energy and Water Efficiency, Renewable Energy
Technologies, Occupational Safety, and Drug-Free Workplace; Protection
of Privacy and Freedom of Information; Other Socioeconomic Programs;
and Contract Modifications. VA provided a 60-day comment period for the
public to respond to the proposed rule and submit comments. The comment
period for the proposed rule ended on January 28, 2019 and VA received
3 comments from two commenters. This rule adopts as a final rule, with
changes, the proposed rule published in the Federal Register on
November 29, 2018, with minor formatting and/or grammatical edits, as
well as the non-substantive changes described below.
In particular, this final rule adds part 823, Environment, Energy
and Water Efficiency, Renewable Energy Technologies, Occupational
Safety, and Drug-Free Workplace. This final rule adds 823.103-70,
Policy, to give contracting officers the option to include an
evaluation factor for an offeror's Sustainable Action Plan when
acquiring products and services.
This rule adds 823.103-71, Solicitation provision, which prescribes
use of a new provision at 852.223-70, Instruction to Offerors--
Sustainable Acquisition Plan, when the contracting officer requires an
offeror to submit a Sustainable Action Plan with its proposal.
In subpart 823.3, Hazardous Material Identification and Material
Safety Data, this regulatory action adds 823.300, Scope of subpart, and
823.303-70, Contract clause, to prescribe the use of clause 852.223-71,
Safety and Health, for use in administering safety and health
requirements in solicitations and contracts for research, development,
or test projects; transportation of hazardous materials; and
construction.
This rule, under VAAR part 824, Protection of Privacy and Freedom
of Information, adds 824.103, Procedures, to implement the procedures
in FAR 24.103, by citing specific VA Handbooks in solicitations and
contracts that require the design, development, or operation of a
system of records; and by requiring the contracting officer to include
in Statements of Work and Performance Work Statements procedures to
follow in the event of a Personally Identifiable Information (PII)
breach.
This final rule revises 824.203, Policy, to add coverage advising
the public that the VA FOIA Service Office handles all Freedom of
Information Act (FOIA) requests, and to provide the centralized website
and a link to the list of FOIA contacts where FOIA requests can be
submitted electronically.
This rule adds part 826--Other Socioeconomic Programs, with a
single subpart 826.2, Disaster or Emergency Assistance Activities. This
part includes 826.202-1, Local area set-aside, to require the
contracting officer to determine whether a local area set-aside should
be further restricted to verified Service-Disabled Veteran-Owned Small
Businesses (SDVOSB) or Veteran-Owned Small Businesses (VOSB), because,
while the FAR allows further restriction to socioeconomic programs in
FAR part 19, it does not mention the VA specific requirements under 38
U.S.C. 8127 and 8128. This regulatory action also adds 826.202-2,
Evaluation preference, which has been revised on the basis of a public
comment as described below.
This rule adds part 843, Contract Modifications, with a single
subpart 843.2, Change Orders. This final rule adds 843.205, Contract
clauses, which provides contracting officers with guidance for
establishing the number of days (up to 60 days), the contractor may be
granted to assert its right to an equitable adjustment within the
Changes clause. This rule also adds 843.205-70, Contract changes--
supplement, which prescribes the use of the clause 852.243-70,
Construction Contract Changes--Supplement, (formerly numbered 852.236-
88), which has been revised and moved to this part from VAAR 836.578.
Technical Non-Substantive Change to the Proposed Rule
This final rule makes three technical non-substantive changes:
At section 823.103-70, Policy, VA has removed specific examples of
the types of products or services which might be classified
``sustainable'' products and services as it is unnecessary to list out
all the possible types of products or services and FAR subpart 23.1
provides sufficient guidance.
Under sections 823.303-70, Contract clause, and 852.223-71, Safety
and Health, VA has removed the term ``hazardous operations'' because
the term is unnecessary.
VA is no longer proposing to add section 823.103-72, Contract file,
which would have required the contracting officer to place the
contractor's final Sustainable Acquisition Plan, if one is required,
into the official contract file. This information is procedural in
nature and has been moved to the VAAM.
VA provided a 60-day comment period for the public to respond to
the proposed rule. As stated previously, VA received 3 comments from
two
[[Page 45680]]
commenters. The issues raised in the comments as well as the changes
made to the proposed rule based on those comments are provided as
follows:
The commenter believes the proposed language in VAAR 826.202-2
creates confusion regarding the contracting officer's obligations to
evaluate and give preference to SDVOSBs and VOSBs in procurements not
set aside for SDVOSBs or VOSBs. The commenter states that ``VA should
not use the phrase ``shall consider'' because this suggests that VA
contracting officers have discretion in whether to provide evaluation
preferences for SDVOSBs and VOSBs, which they do not.'' The commenter
recommends that the VA change the language at 826.202-2 to alleviate
any confusion it may cause.
VA concurs with the recommendation and has revised 826.202-2,
Evaluation preference, to reflect that contracting officers shall
include evaluation factors in accordance with VAAR 815.304 and the
evaluation criteria clause prescribed at 815.304-71(a): 852.215-70,
Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Evaluation Factors.
The commenter also recommends that VA should revise the proposed
VAAR 815.304-71(a), which currently states that contracting officers
shall insert VAAR 852.215-70, SDVOSB and VOSB Evaluation Factors, in
competitively negotiated solicitations that are not set aside for
SDVOSBs or VOSBs.
VA appreciates the comment and it is VA policy that SDVOSBs have
priority over VOSBs when contracting under the authority of 38 U.S.C.
8127(i). However, the intent of the evaluation preference is to provide
additional preference to veteran-owned small businesses when a
procurement is performed outside of the authority under 38 U.S.C. 8127.
This is in recognition of the requirement in 38 U.S.C. 8128(a) that
small business concerns ``owned and controlled by veterans'' have a
priority over other small businesses. 38 U.S.C. 8128(a) does not make a
distinction between SDVOSB or VOSB. Therefore, the proposed language
will remain unchanged.
Another commenter takes exception to the coverage at 843 pertaining
to undefinitized change orders. The commenter expressed concern that
the proposed coverage would have allowed contracting officers to
obligate funds in an amount less than the legal obligation created when
a contract modification is issued and requested that VA provide
clarification on this matter.
VA appreciates the comment and after careful consideration, VA has
removed 843.204-70, Definitization of unpriced change orders, on the
basis that the FAR has sufficient coverage in this area and to
alleviate any confusion.
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
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 Office of Management and Budget (OMB) control number.
See also 5 CFR 1320.8(b)(3)(vi).
The information collection requirements for 852.236-88, which is
currently prescribed by 836.578, is currently approved by OMB and has
been assigned OMB control number 2900-0422. As a part of this final
rule, this information collection has been submitted to OMB to revise
the title, redesignate the collection and renumber the clause currently
numbered as section 852.236-88, Contract Changes--Supplement.
Accordingly, if approved, the clause would reflect the new designation
and revised title as set forth in the preamble and the amendatory
language of this final rule to read: 852.243-70, Construction Contract
Changes--Supplement, as prescribed by 843.205-70, Contract changes--
supplement, under the associated OMB control number 2900-0422. The
reference to the old number--852.236-88, would accordingly be removed.
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 and approval.
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
businesses will result from these rule updates. On this 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.s) 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.
The Office of Information and Regulatory Affairs has determined that
this rule is not a significant regulatory action under Executive Order
12866.
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
not an E.O. 13771 regulatory action because this rule is not
significant under E.O. 12866.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects
48 CFR Part 801
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements.
48 CFR Part 823
Air pollution control, Drug abuse, Energy conservation, Government
[[Page 45681]]
procurement, Hazardous substances, Recycling, Water pollution control.
48 CFR Part 824
Freedom of information, Government procurement, Privacy.
48 CFR Part 826
Disaster assistance, Government procurement, Indians.
48 CFR Part 836
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 843
Government procurement.
48 CFR Part 852
Government procurement, Reporting and recordkeeping requirements.
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 August 23, 2019, for publication.
Dated: August 23, 2019.
Michael P. Shores,
Director, 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, 824, 836 and 852 and adds parts 823, 826, and 843 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, in the table, under the columns titled ``48 CFR part or
section where identified and described'' and ``Current OMB Control
Number'':
Revise the reference to ``852.236-88'' to read ``852.243-70''. The
corresponding OMB Control Number 2900-0422 remains unchanged.
0
3. Part 823 is added to read as follows:
PART 823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Sec.
Subpart 823.1--Sustainable Acquisition Policy
823.103-70 Policy.
823.103-71 Solicitation provision.
Subpart 823.3--Hazardous Material Identification and Material Safety
Data
823.300 Scope of subpart.
823.303-70 Contract clause.
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.
Subpart 823.1--Sustainable Acquisition Policy
823.103-70 Policy.
(a) For new contracts and orders above the micro-purchase
threshold, contracting officers may insert a solicitation provision to
include an evaluation factor for an offeror's Sustainable Acquisition
Plan.
(b) When a solicitation includes the provision at 852.223-70,
Instruction to Offerors--Sustainable Acquisition Plan, offerors shall
include a Sustainable Acquisition Plan in their technical proposal
addressing the sustainable products and services for delivery under any
resulting contract.
823.103-71 Solicitation provision.
The contracting officer shall insert the provision at 852.223-70,
Instruction to Offerors--Sustainable Acquisition Plan, in solicitations
above the micro-purchase threshold.
Subpart 823.3--Hazardous Material Identification and Material
Safety Data
823.300 Scope of subpart.
This subpart provides a contract clause for use in administering
safety and health requirements.
823.303-70 Contract clause.
Contracting officers shall insert clause 852.223-71, Safety and
Health, in solicitations and contracts that involve hazardous materials
for the following types of requirements:
(a) Research, development, or test projects.
(b) Transportation of hazardous materials.
(c) Construction.
PART 824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
0
4. The authority citation for part 824 is revised to read as follows:
Authority: 5 U.S.C. 552a; 40 U.S.C. 121(c); 41 U.S.C. 1121(c);
41 U.S.C. 1702; 38 CFR 1.550-1.562 and 1.575-1.584; and 48 CFR
1.301-1.304.
0
5. Section 824.102 is revised to read as follows:
824.102 General.
VA rules implementing the Privacy Act of 1974 are in 38 CFR 1.575
through 1.584, Safeguarding Personal Information in Department of
Veterans Affairs Records.
0
6. Section 824.103 is added to subpart 824.1 to read as follows:
824.103 Procedures.
(c) The contracting officer shall reference the following documents
in solicitations and contracts that require the design, development, or
operation of a system of records--
(1) VA Handbook 6500.6, Contract Security;
(2) VA Handbook 6508.1, Procedures for Privacy Threshold Analysis
and Privacy Impact Assessment;
(3) VA Handbook 6510, VA Identity and Access Management--
(i) The contracting officer will ensure that statements of work or
performance work statements that require the design, development, or
operation of a system of records include procedures to follow in the
event of a Personally Identifiable Information (PII) breach; and
(ii) The contracting officer shall ensure that Government
surveillance plans for contracts that require the design, development,
or operation of a system of records include monitoring of the
contractor's adherence to Privacy Act/PII regulations. The assessing
official should document contractor-caused breaches or other incidents
related to PII in past performance reports. Such incidents include
instances in which the contractor did not adhere to Privacy Act/PII
contractual requirements.
Subpart 824.2--Freedom of Information Act
0
7. Section 824.203 is revised to read as follows:
824.203 Policy.
(a) VA rules implementing the Freedom of Information Act (FOIA) are
in 38 CFR 1.550 through 1.562.
(b) Upon receipt of a request, the contracting officer shall
provide the requester with the name of the cognizant VA FOIA Service
Office. The VA FOIA Service Office (see http://www.oprm.va.gov/foia/)
is the focal point for all FOIA requests and official information may
only be released
[[Page 45682]]
through the cognizant FOIA Service or their authorized designee.
0
8. Part 826 is added to read as follows:
PART 826--OTHER SOCIOECONOMIC PROGRAMS
Sec.
Subpart 826.2--Disaster or Emergency Assistance Activities
826.202-1 Local area set-aside.
826.202-2 Evaluation preference.
Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C.
1702; 38 CFR 1.550-1.562 and 1.575-1.584; and 48 CFR 1.301-1.304.
Subpart 826.2--Disaster or Emergency Assistance Activities
826.202-1 Local area set-aside.
(c) The contracting officer shall determine whether a local area
set-aside should be further restricted to verified Service-Disabled
Veteran-Owned Small Businesses (SDVOSBs) or Veteran-Owned Small
Businesses (VOSBs) pursuant to subpart 819.70.
826.202-2 Evaluation preference.
Pursuant to 38 U.S.C. 8128, the contracting officer shall include
evaluation factors in accordance with 815.304 and the evaluation
criteria clause prescribed at 815.304-71(a), 852.215-70, Service-
Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation
Factors.
PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
9. The authority citation for part 836 continues 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.
836.578 [Removed]
0
10. Section 836.578 is removed.
0
11. Part 843 is added to read as follows:
PART 843--CONTRACT MODIFICATIONS
Sec.
Subpart 843.2--Change Orders
843.205 Contract clauses.
843.205-70 Contract changes--supplement.
Authority: 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.
Subpart 843.2--Change Orders
843.205 Contract clauses.
As authorized in the introductory text of clauses FAR 52.243-1,
Changes--Fixed-Price; FAR 52.243-2, Changes--Cost-Reimbursement; and
FAR 52.243-4, Changes, and in the prescription at FAR 43.205(c) for FAR
52.243-3, Changes--Time-and-Materials or Labor-Hours, the contracting
officer may vary the period within which a contractor must assert its
right to an equitable adjustment but the extended period shall not
exceed 60 calendar days.
843.205-70 Contract changes--supplement.
The contracting officer shall insert the clause at 852.243-70,
Construction Contract Changes--Supplement, in solicitations and
contracts for construction that are expected to exceed the micro-
purchase threshold for construction.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
12. The authority citation for part 852 is revised 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. 1303; 41 U.S.C. 1702; and 48
CFR 1.301-1.304.
0
13. Section 852.223-70 is added to read as follows:
852.223-70 Instructions to offerors--Sustainable Acquisition Plan.
As prescribed in 823.103-71, when the Contracting Officer deems a
Sustainable Acquisition Plan necessary, the Contracting Officer shall
insert the following provision:
Instructions to Offerors--Sustainable Acquisition Plan (SEP 2019)
Offerors shall include a Sustainable Acquisition Plan in their
technical proposals. The plan must describe the approach and quality
assurance mechanisms for applying FAR subpart 23.1, Sustainable
Acquisition Policy and other Federal laws, regulations and Executive
Orders governing sustainable acquisition. The plan shall clearly
identify those products and services included in the proposal.
(End of provision)
0
14. Section 852.223-71 is added to read as follows:
852.223-71 Safety and Health.
As prescribed by 823.303-70, the Contracting Officer shall insert
the following clause:
Safety and Health (SEP 2019)
(a) To help ensure the protection of the life and health of all
persons, and to help prevent damage to property, the Contractor
shall comply with all Federal, State, and local laws and regulations
applicable to the work being performed under this contract. These
laws are implemented or enforced by the Environmental Protection
Agency (EPA), Occupational Safety and Health Administration (OSHA)
and other regulatory/enforcement agencies at the Federal, State, and
local levels.
(1) Additionally, the Contractor shall comply with the following
regulations when developing and implementing health and safety
operating procedures and practices for both personnel and facilities
involving the use or handling of hazardous materials and the conduct
of research, development, or test projects:
(i) 29 CFR 1910.1030, Bloodborne pathogens; 29 CFR 1910.1450,
Occupational exposure to hazardous chemicals in laboratories. These
regulations are available at https://www.osha.gov/.
(ii) Nuclear Regulatory Commission Standards and Regulations,
pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et
seq.) Copies are available from the U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001.
(2) The following Government guidelines are recommended for
developing and implementing health and safety operating procedures
and practices for both personnel and facilities:
(i) Biosafety in Microbiological and Biomedical Laboratories,
Centers for Disease Control and Prevention (CDC), available at
http://www.cdc.gov/biosafety/publications/index.htm.
(ii) Prudent Practices in the Laboratory, National Research
Council, National Academy Press, Washington, DC 20001, available at
http://www.nap.edu.
(b)(1) The Contractor shall maintain an accurate record of, and
promptly report to the Contracting Officer, all accidents or
incidents resulting in the exposure of persons to toxic substances,
hazardous materials; the injury or death of any person; or damage to
property incidental to work performed under the contract resulting
from toxic or hazardous materials and resulting in any or all
violations for which the Contractor has been cited by any Federal,
State or local regulatory/enforcement agency.
(2) The report shall include a copy of the notice of violation
and the findings of any inquiry or inspection, and an analysis
addressing the impact these violations may have on the work
remaining to be performed. The report shall also state the required
action(s), if any, to be taken to correct any violation(s) noted by
the Federal, State, or local regulatory/enforcement agency and the
time frame allowed by the agency to accomplish the necessary
corrective action.
(c) If the Contractor fails or refuses to comply with the
Federal, State or local regulatory/enforcement agency's directive(s)
regarding any violation(s) and prescribed corrective action(s), the
Contracting Officer may issue an order stopping all or part of the
work until satisfactory corrective action (as approved by the
Federal, State, or local regulatory/enforcement agencies) has been
taken and documented to the Contracting Officer. No part of the time
lost due to any such stop work order shall form the basis for a
request for extension or costs or damages by the Contractor.
(d) The Contractor shall insert this clause in each subcontract
involving toxic substances or hazardous materials. The
[[Page 45683]]
Contractor is responsible for the compliance of its subcontractors
with the provisions of this clause.
(End of clause)
852.236-88 [Removed and Reserved]
0
15. Section 852.236-88 is removed and reserved.
0
16. Section 852.243-70 is added to read as follows:
852.243-70 Construction Contract Changes--Supplement.
As prescribed in 843.205-70, the Contracting Officer shall insert
this clause in solicitations and contracts for construction that are
expected to exceed the micro-purchase threshold. The Contracting
Officer shall fill in the number of days in which a Contractor must
assert its right to an equitable adjustment; however, such amount shall
not exceed 60 calendar days.
Construction Contract Changes--Supplement (SEP 2019)
The FAR clauses 52.236-2, Differing Site Conditions; 52.243-4,
Changes; and 52.243-5, Changes and Changed Conditions, are
supplemented as follows:
(a) Submission of request for equitable adjustment proposals.
When directed by the Contracting Officer or requested by the
Contractor, the Contractor shall, in accordance with FAR 15.403-5,
submit proposals for changes in the work exceeding $500,000 in
writing to the Contracting Officer or Administrative Contracting
Officer (ACO), and to the resident engineer.
(1) The Contractor must provide an itemized breakdown for
changes exceeding the micro-purchase threshold (see FAR 2.101).
(2) The itemized breakdown shall include materials, quantities,
unit prices, labor costs (separated into trades), construction
equipment, etc. Labor costs shall be identified with specific
material placed or operation performed.
(3) Proposals shall be submitted to the Contracting Officer or
ACO and the resident engineer as expeditiously as possible, but not
later than [fill-in] calendar days, after receipt of a written
change order by the Contracting Officer.
(4) Proposals shall be signed by each subcontractor
participating in the change.
(5) The Contracting Officer will consider issuing a settlement
by determination to the contract if the Contractor's proposal
required by paragraph (a)(3) of this clause is not received within
the time period specified in paragraph (a)(3), or if agreement has
not been reached.
(b) Paragraphs (a)(1) through (5) of this clause and the
following paragraphs (b)(1) and (2) apply to proposals for changes
in the work $500,000 or less:
(1) As a basis for negotiation, allowances not to exceed 10
percent each for overhead and profit for the party performing the
work will be based on the value of labor, material, and equipment
required to accomplish the change. As the value of the change
increases, a declining scale will be used in negotiating the
percentage of overhead and profit. This declining scale will also be
used to negotiate the prime Contractor's or upper-tier
subcontractor's fee when work is performed by lower-tier
subcontractors (to a maximum of three tiers) and will be based on
the net increased cost to the prime or upper-tier subcontractor, as
applicable. Profit (fee) shall be computed by multiplying the profit
percentage by the sum of the direct costs and computed overhead
costs. Allowable percentages on changes will not exceed the
following:
(i) 10 percent overhead and/or 10 percent profit (fee) on the
first $20,000.
(ii) 7.5 percent overhead and/or 7.5 percent profit (fee) on the
next $30,000.
(iii) 5 percent overhead and/or 5 percent profit (fee) on a
balance over $50,000.
(2) The Contracting Officer will consider issuing a settlement
by determination to the contract if the Contractor's proposal
required by paragraph (3) is not received within 30 calendar days,
or if agreement has not been reached.
(c)(1) Overhead and Contractor's fee percentages shall be
considered to include insurance other than mentioned herein, field
and office supervisors and assistants, security police, use of small
tools, incidental job burdens, and general home office expenses and
no separate allowance will be made. Assistants to office supervisors
include all clerical, stenographic and general office help.
Incidental job burdens include, but are not necessarily limited to,
office equipment and supplies, temporary toilets, telephone and
conformance to OSHA requirements. Items such as, but not necessarily
limited to, review and coordination, estimating and expediting
relative to contract changes are associated with field and office
supervision and are considered to be included in the Contractor's
overhead and/or fee percentage.
(2) Where the Contractor's or subcontractor's portion of a
change involves credit items, such items must be deducted prior to
adding overhead and profit for the party performing the work. The
Contractor's fee is limited to the net increase to Contractor or
subcontractors' portions of cost computed in accordance with this
clause.
(3) Where a change involves credit items only, a proper measure
of the amount of downward adjustment in the contract price is the
reasonable cost to the Contractor if it had performed the deleted
work. A reasonable allowance for overhead and profit are properly
includable as part of the downward adjustment for a deductive
change. The amount of such allowance is subject to negotiation.
(End of clause)
[FR Doc. 2019-18524 Filed 8-29-19; 8:45 am]
BILLING CODE 8320-01-P
