E8-28604. General Services Administration Acquisition Regulation; GSAR 2008-G509; Rewrite of Part 536, Construction and Architect-Engineer Contracts

AGENCY:

Office of the Chief Acquisition Officer, General Services Administration (GSA).

ACTION:

Proposed rule.

SUMMARY:

The GSA is proposing to amend the GSA Acquisition Regulation (GSAR) to revise the language that provides requirements for contracting construction and architect-engineer services.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before February 2, 2009 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by GSAR Case 2008-G509 by any of the following methods:

• Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2008-G509” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with GSAR Case 2008-G509. Follow the instructions provided to complete the “Public Comment and Submission Form.” Please include your name, company name (if any), and “GSAR Case G2008-G509” on your attached document.
• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann Duarte, Washington, DC 20405.

Instructions: Please submit comments only and cite GSAR Case 2008-G509 in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT

For clarification of content, contact Ms. Cecelia L. Davis at [phone]. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC 20405, [phone]. Please cite GSAR Case 2008-G509.

SUPPLEMENTARY INFORMATION:

A. Background

The GSA is amending the GSAR to update the text addressing GSAR 536, Construction and Architect-Engineer Contracts, Subpart 536.1 General, Subpart 536.2 Special Aspects of Contracting for Construction, Subpart 536.5 Contract Clauses, and Subpart 536.6 Architect-Engineer Services. This rule is a result of the GSA Acquisition Manual (GSAM) Rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the FAR and implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can utilize when entering into and administering contractual relationships. The GSAM incorporates the GSAR as well as internal agency acquisition policy.

The GSA will rewrite each part of the GSAR and GSAM, and as each GSAR part is rewritten, will publish it in the Federal Register.

This rule covers the rewrite of the GSAR portion of Part 536. The rule revises: 536.1 General, to add language at 536.101 to clarify the applicability of this part when contracting for construction and architect-engineer services and contracts for construction management services; Subpart 536.2, Special Aspects of Contracting for Construction, to replace “you” with “contracting officer” and “Their use” with “Use of” to ensure grammatical and structural clarity; to delete 536.270 (c), and move the prior coverage at paragraph (d) to paragraph(c) because the FAR coverage is adequate; to delete 536.271 because the underlying Executive Order is no longer in effect; Subpart 536.5 Contract Clauses, to delete clauses 552.236.72—Specialist, 552.236-74—Working hours, 552.236-75—Use of premises, 552.236-76—Measurements, 552.236-79—Samples, 552.236-80—Heat, and 552.236-81 - Use of Equipment by the Government, because the substance of the clauses is covered in the agency's technical specifications; to combine 552.236-78 - Shop Drawings, Coordination Drawings, and Schedules and 552.236-77 - Specifications and Drawings, into clause 552.236-77 to align with the FAR clause and revise the title of the clause; to delete 552.236-83 - Requirement for a Project Labor Agreement, because the underlying Executive Order is no longer in effect; through an appropriate deviation add new clause 552.236-XX - Project Schedule; for use in all solicitations and contracts, to replace FAR 52.236-15 Schedules for Construction Contracts, because the FAR clause does not sufficiently provide the protection needed by the agency; Subpart 536.6; to change “Commerce Business Daily” to “FedBizOpps,” and delete section (d) as unnecessary based upon existing FAR coverage.

Discussion of Comments

One public comment was received in response to the Advanced Notice of Proposed Rulemaking. The comment addressed acquiring construction under FAR Part 12—Acquisition of Commercial Items. The GSA issued agency guidance on August 7, 2002, stating that from a policy standpoint that construction can be acquired using FAR Part 12 procedures. In an Office of Federal Procurement Policy memorandum dated July 3, 2003, it states: “For the reasons discussed below, FAR Part 12, as currently promulgated, should rarely, if ever, be used for new construction acquisitions or non-routine alteration and repair services. In accordance with long-standing practice, agencies should apply the policies of FAR Part 36 to these acquisitions.” Additionally, some of the GSA regions are using FAR Part 12 to procure such things as sprinkler systems, painting projects, etc. The agency's guidance was never intended to include major construction (new buildings/courthouses, etc). The agency agrees that additional guidance regarding construction as it relates to FAR Part 12 should be addressed, and may be considered in finalizing the rewrite of GSAR Part 512.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The GSA does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. The revisions only update and reorganize existing coverage. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The GSA will consider comments from small entities concerning the affected GSAR Part 536 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (GSAR case 2008-G509), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed changes to the GSAM do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 536

• Government procurement

Dated: October 29, 2008

Al Matera,

Director, Office of Acquisition Policy.

Therefore, GSA proposes to amend 48 CFR part 536 as set forth below:

PART 536—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

1. The authority citation for 48 CFR part 536 continues to read as follows:

Authority: : 40 U.S.C. 121(c).

2. Revise section 536.101 to read as follows:

536.101

Applicability.

This part supplements FAR Part 36 policies and procedures applicable to contracting for construction and architect-engineer services. Contracts for construction management services are addressed in GSAM Part 537. If a requirement in this part is inconsistent with a requirement in another GSAR part, this part takes precedence.

3. Amend section 536.213-370 in paragraph (a) by revising the second and fourth sentences to read as follows:

536.213-370

Bids that include alternates.

(a) * * * If it appears that funds available for a project may be insufficient to include all desired features in the base bid, the contracting officer may issue a solicitation for a base bid and include one or more alternates in the order of priority. * * * Use of alternates must be limited and should involve only “add” alternates.

4. Amend section 536.213-371 by revising paragraph (a) and the introductory text of (c) to read as follows:

536.213-371

Bids that include options.

(a) Subject to the limitations in paragraph (c) of this section, the contracting officer may include options in contracts if it is in the Government's interest.

(c) Contracting officer must not use options under any of the following conditions:

536.270

[Amended]

5. Amend section 536.270 by removing paragraph (c) and redesignating paragraph (d) as (c).

536.271

[Removed]

6. Remove section 536.271.

536.570-3

[Removed]

7. Remove section 536.570-3.

536.570-5 through 536.570-7

[Removed]

8. Remove sections 536.570-5 through 536.570-7.

9. Revise section 536.570-8 to read as follows:

536.570-8

Shop drawings and other submittals.

Insert the clause at 552.236-77, Shop Drawings and Other Submittals, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated and the contract amount is expected to exceed the simplified acquisition threshold.

536.570-9 through 536.570-12

[Removed]

10. Remove sections 536.570-9 through 536.570-12.

536.570-14

[Removed]

11. Remove section 536.570-14.

12. Add section 536.570-XX to read as follows:

536.570-XX

Project Schedule.

Insert the clause at 552.236-XX, Project Schedule, in solicitations and contracts instead of FAR 52.236-15, Schedules for Construction Contracts, if construction, dismantling, demolition, or removal of improvements is contemplated and the contract amount is expected to exceed the simplified acquisition threshold.

13. Amend section 536.602-1 by revising paragraphs (a)(2), (b) introductory text, (b)(1); and by removing paragraph (d). The revised text reads as follows:

536.602-1

Selection criteria.

(a) * * *

(1) * * *

(2) This factor must not exceed five percent of the total weight of all evaluation criteria. To receive the maximum score for this factor, the architect-engineer firm(s) must demonstrate that at least 35 percent of the architect-engineer contract services (based on the total contract price) will be accomplished within the geographical boundaries established for the project.

(b) The notice posted in FedBizOpps for a proposed project must identify the general geographical area of the project by either:

(1) A radius in miles or other appropriate unit of measure; or