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The Revolutionary FAR Overhaul has arrived to FAR Part 36 Impacting Federal Construction Projects

New subparts 36.1, Pre-Solicitation, 36.2, Evaluation and Award and 36.3, Post award, respectively, create logical organization for all activities in alignment with the acquisition lifecycle creating clear points of reference for the Federal Acquisition Regulation (FAR). The scope of the part is simplified to define the part's coverage to "construction, which includes dismantling, demolition or removal of improvements; and architect-engineer services". Enhanced to ensure requirements are clear and aligned with best practices.

Content retained in the Request for Order (RFO) FAR part 36 model deviation include, but are not limited to, the following:

  • Design-Build Selection Procedures (10 U.S.C. § 3241 and 41 U.S.C. § 3309)
  • Administration of Construction Change Orders (15 U.S.C. § 644(w))
  • Brooks Act of 1972 (Pub. L. 92-582)
  • Federal Acquisition Streamlining Act of 1994 (Pub. L. 103-355)
  • Services Acquisition Reform Act of 2003 (Pub. L. 108-136)

The section titled “Policy” was moved from 36.104 to 36.002 and revised to consolidate critical high-level requirements:

  • Retention of the direction that agencies must require the use of Project Labor Agreements for Federal construction projects with a total estimated construction cost at or above $35 million unless an exception applies.
  • Retention of the requirement that market research for construction contracts valued at or above $35 million must ensure that the market research procedures involve a current and proactive examination of the market conditions in the project area.
  • For design and construction selection, retention of the requirement that the contracting officer must use either design-bid-build procedures, two-phase design-build procedures, or another acquisition procedure authorized by law.
  • Retention of the requirement that agencies must implement high-performance sustainable building practices.

Subpart 36.101-2 provides the streamlined “Procedures” for two-phased design-build selection, previously at subpart 36.303. The contracting activity retains discretion to issue one or two solicitation documents for the procurement phases.

Subpart 36.101-5 provides clarified instruction that consideration for liquidated damages must be evaluated by the contracting officer during acquisition planning. The previous instruction was silent on when this evaluation must be made.

The requirement that the Government estimate of construction costs is to be prepared and furnished to the contracting officer remains, but was moved from subpart 36.203 to subpart 36.101-6, and the timing is revised from “at the earliest practicable time” to the estimate must be given to the contracting officer “before receipt of proposals”.

The following were removed from the FAR:

Requirements to provide for a site inspection during the solicitation phase, previously at 36.210 and 36.523, and to conduct a preconstruction conference after award, previously at 36.212 at 36.522, are removed. The decision to conduct these activities are now at the discretion of the acquisition team. The FAR Companion Guide (CG) provides best practices for acquisition teams to consider for pre-award construction site visits in CG Part 36 and for post-award conferences in CG Part 10.

Additionally, deleted was content that is outdated, redundant, or otherwise unnecessary are the following:

  • Outdated, redundant or otherwise unnecessary definitions across 36.001 and 36.102 are removed, leaving only a single definition, "Firm," at 36.001.
  • The “Applicability” section, previously found at 36.101, is removed.
  • Specific evaluation requirements for architect-engineer contracts, previously at 36.602-1 and 36.603, are removed. Contracting activities now have additional flexibility in evaluating offeror qualifications.
  • A specific call out for the evaluation of contract performance and preparing past performance evaluations for construction contracts, previously at 36.201, has been removed. Instead, the new subpart 36.3 Postaward refers contracting officers to FAR part 42 for general contract administration functions.
  • Disclosure of the magnitude of construction projects, previously at 36.204, is removed. This information may still be disclosed based on the strategy needs of the acquisition team.
  • The supplemental requirements for sealed bidding at 36.213 is removed. Acquisition teams who want to utilize sealed bidding should review part 14.
  • The section titled, "Performance of Work by the Contractor", formerly located at 36.501 and the implementing clause at 52.236-1 are removed. This requirement, often referred to as the "12 percent rule," mandated that prime contractors perform a specified minimum percentage of the total contract work with their own forces. This requirement is separate from the clause at 52.219- Limitations of Subcontracting.

Other clauses and provisions removed include:

  • 52.236-4 Physical Data
  • 52.236-19 Organization and Direction of the Work
  • 52.236-26 Preconstruction Conference
  • 52.236-27 Site Visit (Construction)
  • 52.236-28 Preparation of Proposals-Construction
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