GSAR Case 2008-G509; Rewrite of Part 536, Construction and Architect-Engineer Contracts (Comment #1)

Para A., Background States clauses “552.236-78 - Shop Drawings, Coordination Drawings, and Schedules and 552.236-77 - Specifications and Drawings,” will be combined “into clause 552.236-77.” However, the revised clause was not provided in this published notice, so no opportunity has been given to review the proposed changes to this clause. 536.101 Applicability The addition of the sentence, “Contracts for construction management services are addressed in GSAM Part 537, “ is confusing as currently stated. As currently written, the non-regulatory part 536.102 does not even include a definition for construction management services, so it is impossible to tell what services fall into the "construction management services" arena that would be covered by GSAM Part 537 provisions. Recommend clearly identifying which contracts would fall under the Service (i.e. Part 537) purview vice the traditional Construction/AE (i.e. Part 536) parameters here and why. Also it should be noted that CM services may be procured under the schedules which would be considered a commercial buy under FAR Part 8. Finally, if a new type of contract (i.e. CMc) is being introduced then the appropriate Part would be GSAM 516, not here in GSAM 536. Recommend removal of reference to GSAM Part 537 altogether and movement of "new contract type" to GSAM 516. 536.570-4 Basis of award—construction contract. In reference to subpara (a), recommend amending the title of provision 552.236-73 from "Basis of Award - Construction Contract" to "Basis of Award - Construction Contract Using Sealed Bidding" to clarify the intent and usage of this provision as it only applies in the event the contract is procured using Part 14 procedures, not negotiated procedures. Also recommend adding verbiage within the text of subpara (a) as follows: "Insert a provision substantially the same as 552.236-73, Basis of Award—Construction Contract Using Sealed Bidding, in solicitations for fixed-price construction contracts awarded using sealed bidding except if any of the following..." to further clarify the usage of this provision. This change would require a corresponding change in the title and date of the associated provision. See changes in attached general Part 536 Word doc as well as changes in attached document containing Clauses/provisions itself. 536.570-XX Project Schedule. Directs insertion of the clause at 552.236-XX, Project Schedule, but the clause was not provided in this published notice, so no opportunity has been given to review the proposed changes to this clause. 536.602-1 Selection criteria. Subpara (a)(2) Recommend inserting the rest of the quoted evaluation factor regarding geographical area and location. The key to this evaluation factor per the FAR citation (36.602-1(a)(5) is that is shall be evaluated provided that it leaves an appropriate number of qualified firms, given the nature and size of the project. Not including this portion of the evaluation factor in the GSAM citation is misleading and misrepresents the intent of the factor for evaluation purposes. Also recommend removing the overly restrictive and prescriptive qualification measures applied to this factor as required by the second sentence of 536.602-1(a)(2). Establishing a general "not to exceed" percentage maximum is understandable for this criteria given the intent of the criteria, however, limiting the discretion of the Selection Authority/CO to determine how best to apply evaluation factors on an individual per project basis given the nature and requirements of each project/board is ill advised. Such decisions should be left to the discretion of the Selection Authority which is tasked with making the selection; perhaps this is not as critical of a factor in some selections or perhaps it is more critical in others. The application of how each factor should be applied should not be arbitrarily set or predetermined for all AE boards by the GSAM; rather that is a decision that must be made on an individual acquisition basis during the planning stages so as to best address the critical needs of each project and requirement/customer need. Recommend including a citation/reference/link for the referenced "approved" class deviation at 536.602-1(a)(3). If the deviation exists need to state when it was approved, the expiration date (if applicable) and provide a link (hyperlink if possible) of where one can access the deviation. Perhaps include the deviation in the rewrite process as an Appendix to the GSAM. Does not seem sufficient to simply state "under deviation" without providing what deviation and when it was approved so Contracting Officers can cite as such in contracts.