81 FR 62434 - General Services Administration Acquisition Regulation (GSAR); Construction Contract Administration
GENERAL SERVICES ADMINISTRATION Federal Register Volume 81, Issue 175 (September 9, 2016)
Federal Register Volume 81, Issue 175 (September 9, 2016)
| Page Range | 62434-62445 | |
| FR Document | 2016-21629 |
[Federal Register Volume 81, Number 175 (Friday, September 9, 2016)] [Proposed Rules] [Pages 62434-62445] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-21629] [[Page 62434]] ======================================================================= ----------------------------------------------------------------------- GENERAL SERVICES ADMINISTRATION 48 CFR Parts 501, 511, 517, 532, 536, 543, 546, and 552 [GSAR Case 2015-G503; Docket No. 2016-0015; Sequence No. 1] RIN 3090-AJ63 General Services Administration Acquisition Regulation (GSAR); Construction Contract Administration AGENCY: Office of Acquisition Policy, General Services Administration (GSA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The General Services Administration (GSA) is issuing a proposed rule amending the General Services Administration Acquisition Regulation (GSAR) coverage on construction contracts, including provisions and clauses for solicitations and resultant contracts, to clarify, update, and incorporate existing construction contract administration procedures. DATES: Interested parties should submit written comments to the Regulatory Secretariat Division on or before November 8, 2016 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by GSAR case 2015-G503 by any of the following methods:Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by inputting ``GSAR Case 2015-G503'' under the heading ``Comment or Submission''. Select the link ``Comment Now'' that corresponds with GSAR Case 2015-G503. Follow the instructions provided on the screen. Please include your name, company name (if any), and ``GSAR Case 2015-G503'' on all attached document(s). Mail: General Services Administration, Regulatory Secretariat Division, 1800 F Street NW., ATTN: Ms. Flowers, Washington, DC 20405. Instructions: Please submit comments only and cite GSAR Case 2015- G503 in all correspondence related to this case. All comments received will generally be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: For clarification about content, contact Ms. Christina Mullins, General Services Acquisition Policy Division, GSA, by phone at 202-969-4066 or by email at Christina.Mullins@gsa.gov. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division by mail at 1800 F Street NW., Washington, DC 20405, or by phone at 202- 501-4755. Please cite the GSAR Case 2015-G503, Construction Contract Administration. SUPPLEMENTARY INFORMATION: I. Background The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to revise sections of GSAR part 536, Construction and Architect-Engineer Contracts, and related parts, to maintain consistency with the Federal Acquisition Regulation (FAR) and to clarify, update and incorporate existing construction contract administration guidance previously implemented through internal Public Building Service (PBS) policies. The proposed rule changes fall into five categories: (1) Incorporating existing agency policy previously issued through other means, (2) reorganizing to better align with the FAR, (3) incorporating agency unique clauses, (4) incorporating supplemental material, and (5) editing for clarity. Bringing existing policy into the GSAR will allow for greater transparency and an opportunity for the public to comment on these longstanding procedures. The proposed rule includes a total of five new agency unique provisions and clauses, six new supplemental clauses, and revision and reorganization of eight existing provisions and clauses. A GSAR rewrite initiative was undertaken by GSA to revise the GSAR starting in 2008. A proposed rule to update GSAR part 536, Construction and Architect-Engineer Contracts was initially published as GSAR Case 2008-G509 in the Federal Register at 73 FR 73199 on December 2, 2008. Due to the variety of issues addressed in the GSAR 536 rewrite, and internal stakeholder interest, the agency re-evaluated the implementation plan for the GSAR 536 rewrite and withdrew this initial proposed rule. The initial proposed rule withdrawal was published in the Federal Register at 80 FR 6944, on February 9, 2015. GSAR Case 2015-G503 is the second of several new GSAR cases to separately address the issues and update the GSAR 536 text. II. Discussion and Analysis The changes to the GSAR included in the proposed rule are summarized in this section. 1. Eight new clauses for construction contracts previously issued through other means are incorporated into GSAR parts 211, 232, and 236. The new clauses and a brief description are as follows: ------------------------------------------------------------------------ Name and No. Requirements Prescription ------------------------------------------------------------------------ 552.211-10 Commencement, Supplemental clause Same prescription as Prosecution, and Completion to FAR 52.211-10 to FAR clause. of Work. address notice to proceed, substantial completion, and phased work. 552.211-12 Liquidated Supplemental clause Same prescription as Damages--Construction. to FAR 52.211-12 to FAR clause. address substantial completion and phased work. 552.211-13 Time Extensions.. Supplemental clause Same prescription as to FAR 52.211-13 to FAR clause. address the project schedule as a baseline. 552.211-70 Substantial Agency unique clause Prescription Completion. to define the term consistent with and address related that for FAR 52.211- requirements. 10. 552.232-5 Payments under Supplemental clause Same prescription as Fixed-Price Construction to FAR 52.232-5 to FAR clause. Contracts. address pre-invoice payment meetings and clarify certification documentation required for payment. 552.236-6 Superintendence by Supplemental clause Clause prescription the Contractor. to FAR 52.236-6 to has no dollar address project threshold, which is management more inclusive than resources and the FAR clause that responsibilities. is only required at above simplified, in order to satisfy GSA specific contracting requirements. [[Page 62435]] 552.236-15 Schedules for Supplemental clause Clause prescription Construction Contracts. to FAR 52.236-15 to has no dollar address milestone threshold, which is events, cost more inclusive than breakdown, and the FAR clause that requirements for is only required at different project above simplified, delivery methods. in order to satisfy GSA specific contracting requirements. The base clause provides guidance for any type of construction project. Alternate I of the clause provides guidance specific to a design-bid-build construction project. Alternate II of the clause provide guidance specific to a design-build construction project. A third alternate is contemplated for a construction- manager-as- constructor project delivery method and may appear in a separate case to update the GSAR 536 text. 552.236-71 Contractor Agency unique clause The base clause Responsibilities. to address provides guidance requirements for for any type of different project construction delivery methods. project. Alternate I of the clause provides guidance specific to a design-build construction project. A second alternate is contemplated for a construction- manager-as- constructor project delivery method and may appear in a separate case to update the GSAR 536 text. ------------------------------------------------------------------------ 2. Seven existing clauses for construction contracts in GSAR parts 236 and 243 are revised and reorganized to better align with the FAR and to streamline the GSAR. The clauses and a brief description of the changes are as follows: ------------------------------------------------------------------------ Name and No. Requirements Prescription ------------------------------------------------------------------------ 552.236-11 Use and Supplemental Clause prescription Possession Prior to language to address revised for general Completion. unfinished work. construction. Replaces previous Clause prescription GSAR 552.236-81, also has no dollar Use of Equipment by threshold, which is the Government, and more inclusive than is now better the FAR clause that aligned with the is only required at FAR. above simplified, in order to satisfy GSA specific contracting requirements. 552.236-21 Specifications Supplemental Clause prescription and Drawings for language to address has no dollar Construction. inconsistencies, threshold, which is and clarify more inclusive than definition of terms the FAR clause that for different is only required at project delivery above simplified, methods. in order to satisfy GSA specific contracting requirements. Revised title and The base clause clause numbering to provides guidance better align with for any type of the FAR, previously construction was GSAR 552.236- project. Alternate 77, Specifications I of the clause and Drawings. provides guidance specific to a design-build construction project. A second alternate is contemplated for a construction- manager-as- constructor project delivery method and may appear in a separate case to update the GSAR 536 text. 552.236-70 (Existing) Clause deleted as it Clause deleted as it Definitions. is not necessary. is not necessary. 552.236-70 (Revised) Clause renumbered to Clause prescription Authorities and Limitations. streamline GSAM revised to include part 536. simplified Previously was GSAR acquisitions in 552.236-71, order to be more Authorities and consistent with Limitations. current contracting practices. Revised text to address non- compliance. 552.236-72 Submittals....... Revised title and Clause prescription clause numbering to revised to include better align the simplified content and to acquisitions in streamline GSAR order to be more part 536. consistent with Previously was GSAR current contracting 552.236-78, Shop practices. Drawings, Coordination Drawings, and Schedules. Revised to provide a broader definition of the term and to address response times, notice to proceed, and deviations. 552.236-73 Subcontracts..... Clause renumbered to Clause prescription streamline GSAR revised to include part 536. simplified Previously was GSAR acquisitions in 552.236-82, order to be more Subcontracts. consistent with current contracting practices. 552.243-71 Equitable Clause text remains Prescription for Adjustments. unchanged. this existing agency unique clause is revised to include the changes clause for simplified acquisitions and the differing site conditions clause. ------------------------------------------------------------------------ [[Page 62436]] 3. GSAR section 536.270 is added to provide agency regulations for options in construction contracts, as required by FAR part 17.2, Options. GSAR subpart 517.2 is revised to move all construction contract option requirements to GSAR section 536.270. In addition, procedures from the existing GSAR section 536.213 for construction options are incorporated into GSAR section 536.270 and are revised to better align with the FAR and to provide general application to both negotiated procurements and sealed bidding. Bringing these instructions into one area ensures consistency and provides better guidance to contracting officers when developing construction solicitations and contracts. As a result, one revised and three new provisions and clauses are incorporated into GSAR section 552.236. The provisions and clauses and a brief description are as follows: ------------------------------------------------------------------------ Name and No. Requirements Prescription ------------------------------------------------------------------------ 552.236-74 Evaluation of Agency unique Prescription written Options. provision for in plain language construction for ease of options. understanding. 552.236-75 Evaluation Agency unique Prescription written Exclusive of Options. provision for in plain language construction for ease of options. understanding. 552.236-76 Basis of Award- Revised title and Provision Sealed Bidding Construction. provision numbering prescription to better align the revised to provide content. Previously clarity. was GSAR 552.236- 73, Basis of Award- Construction Contracts. 552.236-77 Government's Agency unique clause Prescription written Right to Exercise Options. for construction in plain language options. for ease of understanding. ------------------------------------------------------------------------ 4. GSAR section 546.704 is added to provide agency approval for use of FAR clause 52.246-21, Warranty of Construction. III. Executive Orders 12866 and 13563 Executive Order (E.O.) 12866 of September 30, 1993, Regulatory Planning and Review, directs 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). Section 6(b) of the E.O. requires the OMB Office of Information and Regulatory Affairs (OIRA) to review regulatory actions that have been identified as significant regulatory actions by the promulgating agency or OIRA. This proposed rule has not been determined to be a significant regulatory action and was therefore not subject to OIRA review. However, this rule is not a ``major rule,'' as defined by 5 U.S.C. 804. E.O. 13563 of January 18, 2011, Improving Regulation and Regulatory Review, supplements and reaffirms the principles of E.O. 12866 of September 30, 1993. Section 1(c) of E.O. 13563 directs agencies to ``use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.'' Accordingly, GSA offers the following summary of the costs and benefits associated with this proposed rule. Construction Contract Administration Costs The total costs associated with this rule are $895 thousand per year for contractors and $224 thousand per year for the Federal Government. These costs are attributable to GSA contracts for construction, dismantling, demolition, or removal of improvements. The estimated costs for contractors affected by this rule are limited to the time needed to comply with clause requirements as follows: GSA construction contracts will be subject to GSAR clause 552.236- 72, Submittals. This clause provides guidance to contractors regarding preparation, submission and resubmission of required contract submittal documents such as shop drawings, coordination drawings, and schedules. Compliance costs include the time needed to research and identify the required information, perform quality assurance checks, and transmit the documents. However, contractors will not necessarily have to acquire information technology tools or hire additional personnel to comply as these have been longstanding procedures in use in GSA construction contracts and contractors are familiar with and are currently complying with these practices. In addition, the clause is simplified, including removing the requirement for a specific number of prints and copies of various submittals. GSA estimates the costs for vendors holding these contracts to be around $895 thousand per year. There are no other costs associated with this rule as no additional burden is imposed for other clause requirements. Construction Contract Administration Benefits This rule will save taxpayer dollars because it provides clarification on and consolidation of existing requirements for construction contracts that will allow for more consistency and efficiency in contracting for both businesses and contracting officers. Much of the content in GSAR part 536 has not been updated since the 1980s, and does not reflect current contracting practices. For example, sealed bidding as detailed in GSAR 536.213 is rarely used now. This rule provides several updates to clarify procedures relevant to today's construction administration practices. This will in turn provide greater consistency across contracts and lower administrative costs for contractors. In addition, GSAR coverage does not currently include internal policy and guidance issued in other forms such as Procurement Instructional Bulletins (PIBs) and Procurement Informational Letters (PILs). This rule brings these longstanding practices into the GSAR, consolidating policy into one area. As a result, contractors can expend less time and fewer resources to read, reconcile, and understand all the regulations relevant to their contract in order to fully comply with the requirements. IV. Regulatory Flexibility Act 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, at 5 U.S.C. 601, et seq., because the proposed rule will incorporate clauses that are currently in use in GSA construction solicitations and contracts and contractors are familiar with and are currently complying with these practices. However, since this is the first time these existing policies and procedures that impact the public are being published, an Initial Regulatory Flexibility Analysis (IRFA) has been prepared. The IRFA has been prepared [[Page 62437]] consistent with the criteria of 5 U.S.C. 604 and is summarized as follows: The proposed rule changes will apply to approximately 3,900 GSA construction contracts. Of these, approximately 3,500 (90 percent) construction contracts are held by small businesses. The proposed rule is unlikely to affect small businesses awarded GSA construction contracts as it implements clauses currently in use in construction solicitations and contracts. The proposed rule does not pose any new reporting, recordkeeping or other compliance requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. The agency determined that supplemental language is necessary for eight FAR clauses. No alternatives were determined that will accomplish the objectives of the rule. Bringing these regulations into the GSAR provides for transparency and allows for public comment. Bringing these regulations into the GSAR also consolidates policy into one area, allowing for more consistency and efficiency in contracting for both businesses and contracting officers. The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. GSA invites comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities. GSA will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule 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 2015- G503), in correspondence. V. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) applies because the proposed rule contains information collection requirements. However, no additional burden is imposed on the public for most clauses, and there is some burden reduction. One clause involves an existing information collection requirement that has never been previously recognized or vetted for public comment. Accordingly, the Regulatory Secretariat Division has submitted a request for approval of the existing information collection requirements to the Office of Management and Budget under 44 U.S.C. 3501, et seq. The information collected is used by PBS to evaluate a contractor's proposals, negotiate contract modifications, review required submittals, evaluate a contractor's progress, and review payment requests during contract administration. The impacts to the public for the following clauses are as follows: The new clause at GSAR 552.211-13, Time Extensions, requires the contractor to submit a written request detailing an analysis to justify a time extension. However, the clause does not add burden to what is already estimated by a previous information collection for FAR clause 52.243-4, Changes (see OMB Control Number 9000-0026). The new clause at GSAR 552.211-70, Substantial Completion, requires the contractor to submit a written notice of proposed substantial completion date for the construction work. However, the clause does not add burden to what is already estimated by a previous information collection for FAR clause 52.236-15, Schedules for Construction Contracts (see OMB Control Number 9000-0058). The new clause at GSAR 552.232-5, Payments under Fixed-Price Construction Contracts, requires the contractor to use certain GSA forms to submit the information necessary for a complete payment request. However, the clause does not add burden to what is already estimated by previous information collections for GSAR 532.905-70, FAR clause 52.232-5, Payments under Fixed-Price Construction Contracts, and FAR clause 52.232-27, Prompt Payment for Construction Contracts (see OMB Control Numbers 3090-0080, 9000-0070, and 9000-0102). The new clause at GSAR 552.236-15, Schedules for Construction Contracts, requires the contractor to identify a schedule of values, to provide updates specifically weekly or monthly, and to follow a critical path method in some cases. However, the clause does not add burden to what is already estimated by a previous information collection for FAR clause 52.236-15, Schedules (see OMB Control Number 9000-0058). The new clause at 552.236-72, Submittals, represents a reduction in burden. The clause was previously GSAR 552.236-78, Shop Drawings, Coordination Drawings, and Schedules. The clause is simplified, including removing the requirement for a specific number of prints and copies of various submittals such as shop drawings, coordination drawings, and schedules. This simplification will ease the compliance burden for the contractor during contract administration. However, an information collection was never previously filed for this clause. Public reporting burden for this collection of information is estimated to average 8 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The annual reporting burden is estimated as follows: Respondents: 3,758. Responses per respondent: 1. Total annual responses: 3.758. Preparation hours per response: 8. Total response burden hours: 30,064. The new provision at GSAR 552.236-76, Basis of Award-Sealed Bidding Construction, removes the use of alternates in sealed bidding. The provision was previously GSAR 552.236-73, Basis of Award-Construction Contracts. The provision title and prescription are revised to provide clarity, and the provision regulations are simplified. This provision change will reduce the complexity to businesses during contract solicitation as bid sheet line items will be more clearly understood for pricing. VI. Request for Comments Regarding Paperwork Burden Submit comments, including suggestions for reducing this burden, not later than November 8, 2016 to: GSAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405. Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. Requesters may obtain a copy of the justification from the General Services Administration, Regulatory Secretariat Division (MVCB), Washington, DC 20405, telephone 202-501-4755. Please cite OMB Control Number 3090-00XX, Construction Contract Administration, in all correspondence. List of Subjects in 48 CFR Parts 501, 511, 517, 532, 536, 543, 546, and 552. Government procurement. [[Page 62438]] Dated: September 9, 2016. Jeffrey A. Koses, Senior Procurement Executive, Office of Acquisition Policy, Office of Government-wide Policy. PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM Therefore, GSA proposes to amend 48 CFR parts 501, 511, 517, 532, 536, 543, 546, and 552 as set forth below: 0 1. The authority citation for 48 CFR part 501 continues to read as follows: Authority: 40 U.S.C. 121(c). 501.106 [Amended] 0 2. Amend section 501.106 in the table by-- 0 a. Removing GSAR reference ``532.111(c)'' and its corresponding OMB control number ``3090-0080''; 0 b. Removing from GSAR Reference ``532.905-70'' OMB control number ``9000-0102'' and adding ``3090-0080'' in its place; 0 c. Removing GSAR Reference ``532.905-71'' and its corresponding OMB control number ``3090-0080''; 0 d. Adding, in numerical sequence, GSAR references ``552.211-13(a)'' and ``552.211-70(b)'' and their corresponding OMB control numbers ``9000- 0026'' and ``9000-0058'', respectively; 0 e. Adding, in numerical sequence, GSAR reference ``552.232-5'' and its corresponding OMB control numbers ``3090-0080'', ``9000-0070'', and ``9000-0102''; and 0 f. Adding, in numerical sequence, GSAR references ``552.236-15'' and ``552.236-72'' and their corresponding OMB control numbers ``9000- 0058'' and ``3090-XXXX'', respectively. PART 511--DESCRIBING AGENCY NEEDS 0 3. The authority citation for 48 CFR part 511 continues to read as follows: Authority: 40 U.S.C. 121(c). 0 4. Revise section 511.404 to read as follows: 511.404 Contract clauses. (a) Supplies or services--(1) Shelf-life items. The contracting officer shall use the following clauses in solicitations and contracts that require delivery of shelf-life items within a specified number of months from the date of manufacture or production: (i) The contracting officer shall insert 552.211-79, Acceptable Age of Supplies, if the required shelf-life period is 12 months or less, and lengthy acceptance testing may be involved. For items having a limited shelf-life, substitute Alternate I when required by the program director. (ii) The contracting officer shall insert 552.211-80, Age on Delivery, if the required shelf-life period is more than 12 months, or when source inspection can be performed within a short time period. (2) Stock replenishment contracts. The contracting officer shall insert 552.211-81, Time of Shipment, in solicitations and stock replenishment contracts that do not include the Availability for Inspection, Testing, and Shipment/Delivery clause at 552.211-83 and require shipment within 45 calendar days after receipt of the order. If shipment is required in more than 45 days, the contracting officer shall use Alternate I. (3) Indeterminate testing time. The contracting officer shall insert 552.211-83, Availability for Inspection, Testing, and Shipment/ Delivery, in solicitations and contracts that provide for source inspection by Government personnel and that require lengthy testing for which time frames cannot be determined in advance. If the contract is for stock items, the contracting officer shall use Alternate I. (4) The contracting officer shall insert the clause at 552.211-94, Time of Delivery, in solicitations and contracts for supplies for the Stock Program when neither of the FAR delivery clauses (FAR 52.211-8 or 52.211-9) is suitable. (b) Construction. (1) The contracting officer shall insert the clause at 552.211-10, Commencement, Prosecution, and Completion of Work, in solicitations and contracts when a fixed-price construction contract is contemplated. (2) The contracting officer shall insert the clause at 552.211-70, Substantial Completion in solicitations and contracts when a fixed- price construction contract is contemplated. 0 5. Add subpart 511.5, consisting of section 511.504, to read as follows: Subpart 511.5--Liquidated Damages 511.504 Contract clauses. (a) The contracting officer shall insert the clause at 552.211-12, Liquidated Damages-Construction, in solicitations and contracts for construction, other than cost-plus-fixed-fee, when the contracting officer determines that liquidated damages are appropriate (see FAR 11.501(a)). (b) The contracting officer shall insert the clause at 552.211-13, Time Extensions, in solicitations and contracts for construction that use the clause at 552.211-12, Liquidated Damages--Construction. PART 517--SPECIAL CONTRACTING METHODS 0 6. The authority citation for 48 CFR part 517 is revised to read as follows: Authority: 40 U.S.C. 121(c). 0 7. Revise section 517.200 to read as follows: 517.200 Scope of subpart. (a) Except as provided in paragraph (b) of this section, this subpart applies to contracts for supplies and services, including architect-engineer services. (b) Policies and procedures for the use of options in solicitation provisions and contract clauses for services involving construction, alteration, or repair (including dredging, excavating, and painting) of buildings, bridges, roads, or other kinds of real property are prescribed in 536.270. FAR subpart 17.2 and this subpart 517.2 do not apply to the use of options in solicitation provisions and contract clauses for services involving construction, alteration, or repair (including dredging, excavating, and painting) of buildings, bridges, roads, or other kinds of real property. 0 8. Revise section 517.202 to read as follows: 517.202 Use of options. (a) Options may be used when they meet one or more of the following objectives: (1) Reduce procurement lead time and associated costs. (2) Ensure continuity of contract support. (3) Improve overall contractor performance. (4) Facilitate longer term contractual relationships with those contractors that continually meet or exceed quality performance expectations. (b) An option is normally in the Government's interest in the following circumstances: (1) There is an anticipated need for additional supplies or services during the contract term. (2) When there is both a need for additional supplies or services beyond the basic contract period and the use of multi-year contracting authority is inappropriate. (3) There is a need for continuity of supply or service support. (c) An option shall not be used if the market price is likely to change substantially and an economic price adjustment clause inadequately protects the Government's interest. [[Page 62439]] PART 532--CONTRACT FINANCING 0 9. The authority citation for 48 CFR part 532 continues to read as follows: Authority: 40 U.S.C. 121(c). 0 10. Revise section 532.111 to read as follows: 532.111 Contract clauses for non-commercial purchases. Insert the clause at 552.232-5, Payments under Fixed-Price Construction Contracts, in solicitations and contracts when a fixed- price construction contract is contemplated. PART 536--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS 0 11. The authority citation for 48 CFR part 536 continues to read as follows: Authority: 40 U.S.C. 121(c). 0 12. Revise subpart 536.2 to read as follows: Subpart 536.2--Special Aspects of Contracting for Construction 536.270 Options in construction contracting. 536.270-1 Use of options. 536.270-2 Solicitations. 536.270-3 Evaluation. 536.270-4 Exercise of options. 536.270-5 Solicitation provisions and contract clauses.'' 536.270 Options in construction contracting. 536.270-1 Use of options. (a) Subject to the limitations in this subsection, contracting officers may include options in contracts when it is in the Government's interest. (b) The scope of work in the base contract at award shall require the contractor to provide a discrete and fully functional deliverable. Options shall not be used to incrementally deliver work required to fulfill the requirements of the scope of work for the base contract. (c) Contracting officers shall justify in writing the use of options. (d) Including an option may be in the Government's interest when, in the judgment of the contracting officer-- (1) Additional work beyond the base contract is reasonably foreseeable; (2) It would not be advantageous to award a separate contract; (3) It would not be advantageous to permit an additional contractor to work on the same site; (4) Services arising out of or relating to the underlying construction contract may be required during or after substantial completion of the scope of work. For instance, if building equipment (e.g., mechanical and electrical equipment) will be installed under the construction contract, it may be advantageous to have the construction contractor maintain and service the equipment. In such an instance, the services performed may be included as an option to the underlying construction contract. Contracting officers shall ensure that the applicable clauses are included in any such option (e.g., Service Contract Act); or (5) It is otherwise justified. (e) Options for construction work may provide for an economic price adjustment based on cost or price indexes of labor or materials (see FAR 16.203-4(d)). Subject to the approval of the HCA, the contracting officer may develop and insert a project-specific price adjustment clause into the solicitation. 536.270-2 Solicitations. Solicitations containing options shall-- (a) Include appropriate option provisions and clauses when resulting contracts will provide for the exercise of options (see 536.270-5); (b) State the period within which the options may be exercised; and (c) State whether the basis of evaluation is inclusive or exclusive of the options (if exclusive, see 536.270-4(c)). 536.270-3 Evaluation. For sealed bidding that includes options-- (a) The low bidder for purposes of award is the responsible bidder offering the lowest aggregate price for the base bid and all options designated to be evaluated; and (b) Before opening bids that include options, the contracting officer must determine, and record in the contract file, the amount of funds available for the project. The amount recorded must be announced at the beginning of the bid opening. This amount may be increased later when determining the items to be awarded to the low bidder if the following condition is met: the award amount of the base bid and evaluated options does not exceed the amount offered for the base bid, the evaluated options, and the same combination of items by any other responsible bidder whose bid conforms to the solicitation. This requirement prevents the displacement of the low bidder by manipulating the options to be used. 536.270-4 Exercise of options. (a) The contracting officer shall exercise options in writing within the time period specified in the contract. (b) The contracting officer may exercise options only after determining, in writing, that all the following conditions exist: (1) Funds are available. (2) The requirement covered by the option fulfills an existing Government need. (3) Exercising the option is the most advantageous method of satisfying the Government's need, price and other factors considered. (4) The contractor is not listed in the System for Award Management Exclusions (see FAR 9.405-1). (5) The contractor's performance under the contract met or exceeded the Government's expectation for quality performance, unless another circumstance justifies an extended contractual relationship. (6) Exercising the option is in accordance with the terms of the option. (7) The option price is fair and reasonable, unless already determined as such (e.g., at time of award). (c) The contract modification, or other written document which notifies the contractor of the exercise of the option, must cite the option clause as authority. If exercising an unpriced or unevaluated option, cite the statutory authority permitting the use of other than full and open competition (see FAR 6.302). (d) When the contract provides for economic price adjustment and the contractor requests a revision of the price, the contracting officer shall determine the effect of the adjustment on prices under the option before the option is exercised. 536.270-5 Solicitation provisions and contract clauses. (a) Insert a provision substantially the same as the provision at 552.236-74, Evaluation of Options, in solicitations for fixed-price construction contracts when the solicitation contains an option clause and options will be included in the evaluation for award purposes. (b) Insert a provision substantially the same as the provision at 552.236-75, Evaluation Exclusive of Options, in solicitations for fixed-price construction contracts when the solicitation includes an option clause and options will not be included in the evaluation for award purposes. (c) Insert a provision substantially the same as the provision at 552.236-76, Basis of Award-Sealed Bidding Construction, in solicitations for fixed-price construction contracts when contracting by sealed bidding. Use the provision with its Alternate I when the solicitation contains an option clause. (d) Insert a clause substantially the same as the clause at 552.236-77, [[Page 62440]] Government's Right to Exercise Options, in solicitations and contracts for construction that include options. 0 13. Revise subpart 536.5 to read as follows: Subpart 536.5--Contract Clauses 536.506 Superintendence by the contractor. 536.511 Use and possession prior to completion. 536.515 Schedules for construction contracts. 536.521 Specifications and drawings for construction. 536.570 Authorities and limitations. 536.571 Contractor responsibilities. 536.572 Submittals. 536.573 Subcontracts. 536.506 Superintendence by the contractor. Insert the clause at 552.236-6, Superintendence by the Contractor, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated. 536.511 Use and possession prior to completion. Insert the clause at 552.236-11, Use and Possession Prior to Completion, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated. 536.515 Schedules for construction contracts. Insert the clause at 552.236-15, Schedules for Construction Contracts, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated. Use the clause-- (a) With its Alternate I when the contract amount is expected to be above the simplified acquisition threshold and a design-bid-build project delivery method will be followed; or (b) With its Alternate II when the contract amount is expected to be above the simplified acquisition threshold and a design-build project delivery method will be followed. 536.521 Specifications and drawings for construction. Insert the clause at 552.236-21, Specifications and Drawings for Construction, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated. Use the clause with its Alternate I when a design-build project delivery method will be followed. 536.570 Authorities and limitations. Insert the clause at 552.236-70, Authorities and Limitations, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated. 536.571 Contractor responsibilities. Insert the clause at 552.236-71, Contractor Responsibilities, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated. Use the clause with its Alternate I when a design-build project delivery method will be followed. 536.572 Submittals. Insert the clause at 552.236-72, Submittals, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated. Use the clause with its Alternate I when a design-build project delivery method will be followed. 536.573 Subcontracts. Insert the clause at 552.236-73, Subcontracts, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated. PART 543--CONTRACT MODIFICATIONS 0 14. The authority citation for 48 CFR part 543 is revised to read as follows: Authority: 40 U.S.C. 121(c). 0 15. Revise section 543.205 to read as follows: 543.205 Contract clauses. The contracting officer shall insert 552.243-71, Equitable Adjustments, in solicitations and contracts containing FAR 52.243-4, Changes, FAR 52.243-5, Changes and Changed Conditions, or FAR 52.236-2, Differing Site Conditions. PART 546--QUALITY ASSURANCE 0 16. The authority citation for 48 CFR part 546 continues to read as follows: Authority: 40 U.S.C. 121(c). 0 17. Add section 546.704 to read as follows: 546.704 Authority for use of warranties. FAR clause 52.246-21, Warranty of Construction, is approved by the agency for use in solicitations and contracts when a fixed-price construction contract is contemplated. PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 18. The authority citation for 48 CFR part 552 continues to read as follows: Authority: 40 U.S.C. 121(c). 0 19. Add section 552.211-10 to read as follows: 552.211-10 Commencement, Prosecution, and Completion of Work. As prescribed in 511.404, insert the following clause: Commencement, Prosecution, and Completion of Work (DATE) FAR 52.211-10, Commencement, Prosecution, and Completion of Work, is supplemented as follows: (a) The Contractor shall not commence work until the Contracting Officer issues a notice to proceed. (b) Notwithstanding paragraph (a) above, the Contractor must submit any required safety plans before commencing any construction work. (c) The Contractor shall diligently prosecute the work so as to achieve substantial completion of the work within the time specified in the contract. If the contract specifies different completion dates for different phases or portions of the work, the Contractor shall diligently prosecute the work so as to achieve substantial completion of such phases or portions of the work within the times specified. (End of clause) 0 20. Add sections 552.211-12 and 552.211-13 to read as follows: 552.211-12 Liquidated Damages--Construction. As prescribed in 511.504, insert the following clause: Liquidated Damages (DATE) FAR 52.211-12, Liquidated Damages-Construction, is supplemented as follows: (a) If the Contractor fails to achieve substantial completion of the work within the time specified in the contract, the Contractor shall be liable to the Government for liquidated damages at the rate specified for each calendar day following the required completion date that the work is not substantially complete. (b) If the contract requires different completion dates for different phases or portions of the work, the Contractor shall be liable for liquidated damages at the specified rate for each calendar day following the required completion date that the phase or portion of work is not substantially complete. If a single rate is specified, the specified rate shall be apportioned between the different phases or portions of the work. (c) If the Government elects to accept any portion of the work not specifically designated as a phase or portion of work with its own required completion date, the liquidated damage rate shall be apportioned between accepted work and uncompleted work, and the Contractor's liability for liquidated damages shall be computed accordingly. (End of clause) [[Page 62441]] 552.211-13 Time Extensions. As prescribed in 511.504, insert the following clause: Time Extensions (DATE) FAR 52.211-13, Time Extensions, is supplemented as follows: (a) If the Contractor requests an extension of the time for substantial completion, the Contractor shall base its request on an analysis of time impact using the project schedule as its baseline, and shall propose as a new substantial completion date to account for the impact. The Contractor shall submit a written request to the Contracting Officer setting forth facts and analysis in sufficient detail to enable the Contracting Officer to evaluate the Contractor's entitlement to an extension of time. (b) The Contractor shall only be entitled to an extension of time to the extent that-- (1) Substantial completion of the work is delayed by causes for which the Contractor is not responsible under this contract; and (2) The actual or projected substantial completion date is later than the date required by this contract for substantial completion. (c) The Contractor shall not be entitled to an extension of time if the Contractor has not updated the project schedule in accordance with the contract. (d) The Government shall not be liable for any costs to mitigate time impacts incurred by the Contractor that occur less than 30 calendar days after the date the Contractor submits a request for extension of time in compliance with this clause. (End of clause) 0 21. Add section 552.211-70 to read as follows: 552.211-70 Substantial Completion. As prescribed in 511.404, insert the following clause: Substantial Completion (DATE) (a) General. (1) For the purposes of FAR 52.211-10, Commencement, Prosecution and Completion of Work, and FAR 52.211-12, Liquidated Damages-Construction, the work shall be deemed complete when it is ``substantially complete.'' (2) There may be different completion dates required for different phases or portions of the work, as established in the contract. However, the work shall be deemed ``substantially complete'' if and only if the Contractor has completed the work and related contract obligations in accordance with the contract documents, such that the Government may enjoy the intended access, occupancy, possession, and use of the entire work without impairment due to incomplete or deficient work, and without interference from the Contractor's completion of remaining work or correction of deficiencies in completed work. (3) In no event shall the work be deemed ``substantially complete'' if all fire and life safety systems are not tested and accepted by the authority having jurisdiction, where such acceptance is required under the contract. (4) Unless otherwise specifically noted, or otherwise clear from context, all references in the contract to ``acceptance'' shall refer to issuance of a written determination of substantial completion by the Contracting Officer. (b) Notice of Substantial Completion. (1) With reasonable advance notice, the Contractor shall submit to the Contracting Officer a written proposal recommending a substantial completion date. (2) If the Contracting Officer takes exception to the notice of substantial completion, the Contractor shall be entitled to a written notice of conditions precluding determination of substantial completion. The Contractor shall only be entitled to an extension of time to address such conditions if, and to the extent that, the Contracting Officer provides notice of such conditions more than 30 calendar days after receipt of the notice of substantial completion. (c) Acceptance of Substantial Completion. (1) The Contracting Officer shall conduct inspections and make a determination of substantial completion within a reasonable time. (2) Substantial Completion shall be established by the Contracting Officer's issuance of a written determination specifying the date upon which the work is substantially complete. (d) Contract Completion. (1) The Contract is complete if and only if the Contractor has completed all work and related contract obligations, corrected all deficiencies and all punch list items, and complied with all conditions for final payment. (2) The Contractor shall not be entitled to final payment or release of any retainage held by the Government until after contract completion. If the Contractor does not achieve contract completion within the time required by this contract, the Government shall be entitled, after providing notice to the Contractor, to complete any work remaining unfinished. The Contractor shall be liable to the Government for all costs incurred by the Government to complete such work. (End of clause) 0 22. Add sections 552.232-5 and 552.232-6 to read as follows: 552.232-5 Payments under Fixed-Price Construction Contracts. As prescribed in 532.111, insert the following clause: Payments Under Fixed-Price Construction Contracts (DATE) FAR 52.232-5, Payments Under Fixed-Price Construction Contracts, is supplemented as follows: (a) Before submitting a request for payment, the Contractor shall, unless directed otherwise by the Contracting Officer, attend pre-invoice payment meetings, as scheduled, with the designated Government representative for the purpose of facilitating review and approval of payment requests. Payment meetings will be conducted and may be in person. The Contractor shall provide documentation to support the prospective payment request. (b) The Contractor shall submit its invoices to the Contracting Officer, unless directed otherwise by the Contracting Officer. Separate payment requests shall be submitted for progress payments, payments of retainage, and partial or final payments. (c) The Contractor shall use GSA Form 2419 Certification of Progress Payments Under Fixed-Price Construction Contracts to provide the certification required under FAR 52.232-5(c). (d) The Contractor shall use GSA Form 1142 Release of Claims to provide the certification required under FAR 52.232-5(h). (e) If an invoice does not meet the requirements of FAR 52.232- 27 and GSAM 552.232-27, the Contracting Officer may return the invoice to the Contractor without payment for correction. If the Contracting Officer disputes the requested payment amount, the Government may pay the portion of the requested payment that is undisputed. (f) GSA will not be obligated to issue final payment unless the Contractor has furnished to the Contracting Officer a release of claims against the Government relating to the contract, and submitted all required product warranties, as-built drawings, operating manuals, and other items as specified in the contract. The Contractor may reserve from the release specific claims only if such claims are explicitly identified with stated claim amounts. (End of clause) 552.236-6 Superintendence by the Contractor. As prescribed in 536.506, insert the following clause: Superintendence by the Contractor (DATE) The requirements of the clause entitled ``Superintendence by the Contractor'' at FAR 52.236-6, are supplemented as follows: (a) The Contractor shall employ sufficient management and contract administration resources, including personnel responsible for project management, field superintendence, change order administration, estimating, coordination, inspection, and quality control, to ensure the proper execution and timely completion of the contract. The Contractor shall designate a principal of the firm or other senior management official to provide executive oversight and problem resolution resources to the project for the life of the contract. (b) The Contractor shall employ, and require its subcontractors to employ, qualified personnel to perform the contract. The Government reserves the right to exclude, or remove from the site or building, any personnel for reasons of incompetence, carelessness, or insubordination, who violate rules and regulations concerning conduct on federal property, or whose continued employment on the site is otherwise deemed by the Government to be contrary to the public interest. (c) The Contractor shall be responsible for coordinating all activities of subcontractors, including all of the following activities: [[Page 62442]] (1) Preparation of shop drawings produced by different subcontractors where their work interfaces or may potentially conflict or interfere. (2) Scheduling of work by subcontractors. (3) Installation of work by subcontractors. (4) Use of the project site for staging and logistics. (d) Repeated failure or excessive delay to meet the superintendence requirements by the Contractor may be deemed a default for the purposes of the termination for default clause. (End of clause) 0 23. Add section 552.236-11 to read as follows: 552.236-11 Use and Possession Prior to Completion. As prescribed in 536.511, insert the following clause: Use and Possession Prior to Completion (DATE) Exercise by the Government of the right conferred by FAR 52.236- 11 shall not relieve the Contractor of responsibility for completing any unfinished components of the work. (End of clause) 0 24. Add section 552.236-15 to read as follows: 552.236-15 Schedules for Construction Contracts. As prescribed in 536.515, insert the following clause: Schedules for Construction Contracts (DATE) The requirements, of the clause entitled ``Schedules for Construction Contracts'' at FAR 52.236-15, are supplemented as follows: (a) Purpose. The project schedule shall be a rational, reasonable, and realistic plan for completing the work, and conform to the requirements specified in this clause and elsewhere in the contract. The Contractor understands and acknowledges that the preparation and proper management of the project schedule is a material component of the contract. (b) Use of the schedule. The Contracting Officer shall be entitled, but not required, to rely upon the project schedule to evaluate the Contractor's progress, evaluate entitlement to extensions of time, and determine the criticality or float of any activities described in such project schedule. (c) Submission. Prior to notice to proceed, or such other time as may be specified in the contract, the Contractor shall submit the project schedule. (d) Milestones. The project schedule shall incorporate milestone events specified in the contract, including, as applicable, notice to proceed, substantial completion, and milestones related to specified work phases and site restrictions. The project schedule shall also include Contractor-defined milestones to identify target dates for critical events, based upon the Contractor's chosen sequence of work. (e) Activities. The project schedule shall depict all major activities necessary to complete the work. (f) Schedule of values. (1) The Contractor shall prepare and submit for approval a cost breakdown of the Contract price, to be referred to as the ``schedule of values'', assigning values to each major activity necessary to complete the work. (2) Values must include all direct and indirect costs, although a separate value for bond costs may be established. (3) The schedule of values must contain sufficient detail to enable the Contracting Officer to evaluate applications for payment. (g) Conflicting terms. (1) If at any time the Contracting Officer finds that the project schedule does not comply with any contract requirement, the Contracting Officer will provide written notice to the Contractor. (2) Within 30 calendar days of written notice, or such other time as may be specified, from the Contracting Officer, the Contractor shall take one of the following actions: (i) Revise the project schedule. (ii) Adjust activity progress. (iii) Provide sufficient information demonstrating compliance. (3) If the Contractor fails to sufficiently address the Contracting Officer's exceptions to the project schedule, the Contracting Officer may-- (i) Withhold retainage until the project is substantially complete or until such time as the Contractor has complied with project schedule requirements; or (ii) Terminate the contract for default. (h) Revisions to the schedule. If the Contractor revises the project schedule after initial approved submission, the Contractor shall provide in writing a narrative describing the substance of the revision, the rationale for the revision, and the impact of the revision on the projected substantial completion date and the available float for all activities. The addition of detail to prospective activities shall not be deemed a revision if the overall duration of the detailed activity does not change. (i) Updates. Unless a different period for updates is specified elsewhere, the Contractor shall update the project schedule weekly to reflect actual progress in completing the work, and submit the updated project schedule by the following Monday. (End of clause) Alternate I (DATE). As prescribed in 536.515(a), substitute the following paragraphs (c), (e), (h), and (i) for paragraphs (c), (e), (h), and (i) of the basic clause: (c) Submission. Within 30 calendar days of notice to proceed, or such other time as may be specified in the contract, the Contractor shall submit the project schedule, together with a written narrative describing the major work activities, activities on the critical path, and major constraints underlying the sequence and logic of the project schedule. (e) Activities. (1) The Contractor shall use a critical path method project schedule to plan, coordinate, and perform the work. (2) The project schedule shall depict all activities necessary to complete the work, including, as applicable, all submittal and submittal review activities, all procurement activities, and all field activities, including mobilization, construction, start-up, testing, balancing, commissioning, and punchlist. (3) Activities shall be sufficiently detailed and limited in duration to enable proper planning and coordination of the work, effective evaluation of the reasonableness and realism of the project schedule, accurate monitoring of progress, and reliable analysis of schedule impacts. (4) Activity durations shall be based upon reasonable and realistic allocation of the resources required to complete each activity, given physical and logistical constraints on the performance of the work. All logic shall validly reflect physical or logistical constraints on relationships between activities. Except for the first and last activities in the project schedule, each activity shall have at least one predecessor and one successor relationship to form a logically connected network plan from notice to proceed to the contract completion date. (h) Revisions to the schedule. (1) The Contractor should anticipate that the initial submittal of the project schedule will be subject to review and may require revision. The Contractor shall devote sufficient resources for meetings, revisions, and resubmissions of the project schedule to address any exceptions taken to the initial submittal. The Contractor understands and acknowledges that the purpose of the initial review and resolution of exceptions is to maximize the usefulness of the project schedule for contract performance. (2) If the Contractor revises the project schedule after initial approved submission, the Contractor shall provide in writing a narrative describing the substance of the revision, the rationale for the revision, and the impact of the revision on the projected substantial completion date and the available float for all activities. The addition of detail to prospective activities shall not be deemed a revision if the overall duration of the detailed activity does not change. (i) Updates. Unless a different period for updates is specified elsewhere, the Contractor shall update the project schedule monthly to reflect actual progress in completing the work, and submit the updated project schedule within 5 working days of the end of each month. Alternate II (DATE). As prescribed in 536-515(b), substitute the following paragraphs (c), (e), and (i) for paragraphs (c), (e), and (i) of the basic clause: (c) Submission. (1) Within 30 calendar days of notice to proceed, or such other time as may be specified in the contract, the Contractor shall submit the project schedule, together with a written narrative describing the major design and construction activities. The project schedule may indicate construction activities in summary form prior to completion of final design documents. (2) Within 30 calendar days of completion of final design documents, the Contractor shall submit a revised project schedule depicting all activities necessary to complete construction work activities, together with a written narrative describing the major work [[Page 62443]] activities, activities on the critical path, and major constraints underlying the sequence and logic of the project schedule. (e) Activities. (1) The Contractor shall use a critical path method project schedule to plan, coordinate, and perform the work. (2) Activities shall be sufficiently detailed and limited in duration to enable proper planning and coordination of the work, effective evaluation of the reasonableness and realism of the project schedule, accurate monitoring of progress, and reliable analysis of schedule impacts. (3) Activity durations shall be based upon reasonable and realistic allocation of the resources required to complete each activity, given physical and logistical constraints on the performance of the work. All logic shall validly reflect physical or logistical constraints on relationships between activities. Except for the first and last activities in the project schedule, each activity shall have at least one predecessor and one successor relationship to form a logically connected network plan from notice to proceed to the contract completion date. (i) Updates. Unless a different period for updates is specified elsewhere, the Contractor shall update the project schedule monthly to reflect actual progress in completing the work, and submit the updated project schedule within 5 working days of the end of each month. 0 25. Add section 552.236-21 to read as follows: 552.236-21 Specifications and Drawings for Construction. As prescribed in 536.521, insert the following clause: Specifications and Drawings for Construction (DATE) The requirements of the clause entitled ``Specifications and Drawings for Construction'' at FAR 52.236-21, are supplemented as follows: (a) In case of difference between small and large-scale drawings, the large-scale drawings shall govern. (b) Schedules on any contract drawing shall take precedence over conflicting information on that or any other contract drawing. (c) On any of the drawings where a portion of the work is detailed or drawn out and the remainder is shown in outline, the parts detailed or drawn out shall apply also to all other like portions of the work. (d) Where the word ``similar'' occurs on the drawings, it shall have a general meaning and not be interpreted as being identical, and all details shall be worked out in relation to their location and their connection with other parts of the work. (e) Standard details or specification drawings are applicable when listed, bound with the specifications, noted on the drawings, or referenced elsewhere in the specifications. (1) Where notes on the specification drawings indicate alterations, such alterations shall govern. (2) In case of difference between standard details or specification drawings and the specifications, the specifications shall govern. (3) In case of difference between the standard details or specification drawings and the drawings prepared specifically for this contract, the drawings prepared specifically for this contract shall govern. (f) Different requirements within the contract documents shall be deemed inconsistent only if compliance with both cannot be achieved. (g) Unless otherwise noted, the drawings shall be interpreted to provide for a complete construction, assembly, or installation of the work, without regard to the detail with which material components are shown in the drawings. (End of clause) Alternate I (DATE). As prescribed in 536.521, add the following paragraph to the basic clause: (h) For the purposes of this clause, specifications and drawings refer only to those included among the contract documents, and not to those produced by the Contractor pursuant to its responsibilities under the contract. 552.236-70 [Removed] 0 26. Remove section 552.236-70. 552.236-71 [Redesignated as 552.236-70] 0 27. Redesignate section 552.236-71 as section 552.236-70 and revise it to read as follows: 552.236-70 Authorities and Limitations. As prescribed in 536.570, insert the following clause: Authorities and Limitations (DATE) (a) All work shall be performed under the general direction of the Contracting Officer. The Contracting Officer alone shall have the power to bind the Government and to exercise the rights, responsibilities, authorities and functions vested in him by the contract documents. The Contracting Officer may designate contracting officer's representatives (CORs) to act for him. Wherever any provision in this contract specifies an individual (such as, but not limited to, Construction Engineer, Resident Engineer, Inspector or Custodian) or organization, whether Governmental or private, to perform any act on behalf of or in the interests of the Government, that individual or organization shall be deemed to be the COR under this contract but only to the extent so specified. The Contracting Officer may, at any time during the performance of this contract, vest in any such COR additional power and authority to act for him or designate additional CORs, specifying the extent of their authority to act for him. A copy of each document vesting additional authority in a COR or designating an additional COR shall be furnished to the Contractor. (b) The Contractor shall perform the contract in accordance with any order (including but not limited to instruction, direction, interpretation, or determination) issued by a COR in accordance with his authority to act for the Contracting Officer; but the Contractor assumes all the risk and consequences of performing the contract in accordance with any order (including but not limited to instruction, direction, interpretation, or determination) of anyone not authorized to issue such order. (c) If the Contractor receives written notice from the Contracting Officer of non-compliance with any requirement of this contract, the Contractor must initiate action as may be appropriate to comply with the specified requirement as defined in the notice. In the event the Contractor fails to initiate such action within a reasonable period of time as defined in the notice, the Contracting Officer shall have the right to order the Contractor to stop any or all work under the contract until the Contractor has complied or has initiated such action as may be appropriate to comply within a reasonable period of time. The Contractor will not be entitled to any extension of contract time or payment for any costs incurred as a result of being ordered to stop work for such cause. (End of clause) 0 28. Add new section 552.236-71 to read as follows: 552.236-71 Contractor Responsibilities. As prescribed in 536.571, insert the following clause: Contractor Responsibilities (DATE) (a) The Contractor shall be responsible for compliance with applicable codes, standards and regulations pertaining to the health and safety of personnel during performance of the contract. (b) Unless expressly stated otherwise in the contract, the Contractor shall be responsible for all means and methods employed in the performance of the contract. (c) The Contractor shall immediately bring to the Contracting Officer's attention any hazardous materials or conditions not disclosed in the contract documents discovered by or made known to the Contractor during the performance of the contract. (d) The Contractor shall be responsible for providing professional design services in connection with performance of the work or portions of the work only if this responsibility is expressly stated in the contract, and the contract documents provide the performance and design criteria that such services will be required to satisfy. In the performance of such work, the Contractor shall be responsible for retaining licensed design professionals, who shall sign and seal all drawings, calculations, specifications and other submittals that the licensed professional prepares. The Contractor shall be responsible for, and GSA shall be entitled to rely upon, the adequacy and completeness of all professional design services provided under the contract. (e) Where installation of separate work components as shown in the contract will result in conflict or interference between such components or with existing conditions, including allowable tolerances, it is the Contractor's responsibility to bring such [[Page 62444]] conflict or interference to the attention of the Contracting Officer and seek direction before fabrication, construction, or installation of any affected work. If the Contractor fabricates, constructs, or installs any work prior to receiving such direction, the Contractor shall be responsible for all cost and time incurred to resolve or mitigate such conflict or interference. (f) Where drawings show work without specific routing, dimensions, locations, or position relative to other work or existing conditions, and such information is not specifically defined by reference to specifications or other information supplied in the contract, the Contractor is responsible for routing, dimensioning, and locating such work in coordination with other work or existing conditions in a manner consistent with contract requirements. (g) It is not the Contractor's responsibility to ensure that the contract documents comply with applicable laws, statutes, building codes and regulations. If it comes to the attention of the Contractor that any of the contract documents do not comply with such requirements, the Contractor shall promptly notify the Contracting Officer in writing. If the Contractor performs any of the work prior to notifying and receiving direction from the Contracting Officer, the Contractor shall assume full responsibility for correction of such work, and any fees or penalties that may be assessed for non-compliance. (End of clause) Alternate I (DATE). As prescribed in 536.571, delete paragraphs (d), (e), (f), and (g) of the basic clause, and insert paragraphs (d), (e), (f), and (g) as follows: (d) The Contractor shall be responsible for providing professional design services unless this responsibility is expressly excluded from the contract. In the performance of such work, the Contractor shall be responsible for retaining licensed design professionals, who shall sign and seal all drawings, calculations, specifications and other submittals that the licensed professional prepares. The Contractor shall be responsible for, and GSA shall be entitled to rely upon, the adequacy and completeness of all professional design services provided under the contract. (e) The Contractor's responsibilities include the responsibilities of the Architect-Engineer Contractor, as specified in FAR 52.236-23. (f) The Contractor shall include in all subcontracts that require professional design services express terms establishing GSA as a third party beneficiary. No other person shall be deemed a third party beneficiary of the contract. (g) The Contractor shall determine whether the information contained in the contract documents complies with applicable laws, statutes, building codes and regulations. If it comes to the attention of the Contractor that any of the contract documents do not comply with such requirements, the Contractor shall promptly notify the Contracting Officer in writing. If the Contractor performs any of the work prior to notifying and receiving direction from the Contracting Officer, the Contractor shall assume full responsibility for correction of such work, and any fees or penalties that may be assessed for non-compliance. 0 29. Add section 552.236-72 to read as follows: 552.236-72 Submittals. As prescribed in 536.572, insert the following clause: Submittals (DATE) (a) The Contractor shall prepare and submit all submittals as specified in the contract or requested by the Contracting Officer. (1) Submittals may include: safety plans, schedules, shop drawings, coordination drawings, samples, calculations, product information, or mockups. (2) Shop drawings may include fabrication, erection and setting drawings, manufacturers' scale drawings, wiring and control diagrams, cuts or entire catalogs, pamphlets, descriptive literature, and performance and test data. (b) Unless otherwise provided in this contract, or otherwise directed by the Contracting Officer, submittals shall be submitted to the Contracting Officer. (c) The Contractor shall be entitled to receive notice of action on submittals within a reasonable time, given the volume or complexity of the submittals and the criticality of the affected activities to substantial completion as may be indicated in the project schedule. (d) Review of submittals will be general and shall not be construed as permitting any departure from the contract requirements. (e) The Contractor shall not proceed with construction work or procure products or materials described or shown in submittals until the submittal is reviewed. Any work or activity undertaken prior to review shall be at the Contractor's risk. Should the Contracting Officer subsequently determine that the work or activity does not comply with the contract, the Contractor shall be responsible for all cost and time required to comply with the Contracting Officer's determination. The Contracting Officer shall have the right to order the Contractor to cease execution of work for which submittals have not been reviewed. The Government shall not be liable for any cost or delay incurred by the Contractor attributable to the proper exercise of this right. (f) The Contractor shall identify, in writing, all deviations or changes in resubmitted submittals. In the absence of such written notice, review of a resubmission shall not include or apply to such deviations or changes. (End of clause) Alternate I (DATE). As prescribed in 536.572, add the following paragraph to the basic clause: (g) The Contractor shall submit design documents for review in accordance with PBS-P100. The Government shall review submittals for the limited purpose of verifying that the documents conform to the design criteria expressed in the contract documents. 552.236-73 through 81 [Removed] 0 30. Remove sections 552.236-73 through 81. 552.236-82 [Redesignated as 552.236-73] 0 31. Redesignate section 552.236-82 as section 552.236-73 and revise the introductory text to read as follows: 552.236-73 Subcontracts. As prescribed in 536.573, insert the following clause: * * * * * 0 32. Add new sections 552.236-74 through 552.236-77 to read as follows: 552.236-74 Evaluation of Options. As prescribed in 536.270-5(a), insert the following provision: Evaluation of Options (DATE) The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s). (End of provision) 552.236-75 Evaluation Exclusive of Options. As prescribed in 536.270-5(b), insert the following provision: Evaluation Exclusive of Options (DATE) The Government will evaluate offers for award purposes by including only the price for the basic requirement. Options will not be included in the evaluation for award purposes. (End of provision) 552.236-76 Basis of Award--Sealed Bidding Construction As prescribed in 536.270-5(c), insert the following provision: Basis of Award--Sealed Bidding Construction (DATE) A bid may be rejected as nonresponsive if the bid is materially unbalanced as to bid prices. A bid is unbalanced when the bid is based on prices significantly less than cost for some work and significantly overstated for other work. (End of provision) Alternate I (DATE). As prescribed in 536.270-5(c), designate the basic provision as paragraph (a) and add the following paragraph to the basic provision: (b) The low bidder for purposes of award is the responsible bidder offering the lowest aggregate price for (1) the base requirement plus (2) all options designated to be evaluated. The evaluation of options will not obligate the Government to exercise the options. [[Page 62445]] 552.236-77 Government's Right to Exercise Options. As prescribed in 536.270-5(d), insert the following clause: Government's Right to Exercise Options (DATE) (a) The Government may exercise any option in writing in accordance with the terms and conditions of the contract within _____ [insert the period of time within which the Contracting Officer may exercise the option]. Unless otherwise specified, options may be exercised within 90 calendar days of contract award. (b) If the Government exercises the option, the contract shall be considered to include this option clause. (End of clause) 0 33. Amend section 552.243-71 by-- 0 a. Revising the date of the clause, 0 b. Removing from paragraph (a) ``FAR 52.243-4'' and adding ``FAR 52.243-4, the ``Changes and Changed Conditions'' clause prescribed by FAR 52.243-5,'' in its place; and 0 c. Revising paragraph (c). The revisions read as follows: 552.243-71 Equitable Adjustments. As prescribed in 543.205, insert the following clause: Equitable Adjustments (DATE) * * * * * (c) The proposal shall be submitted within the time specified in the ``Changes'', ``Changes and Changed Conditions'', or ``Differing Site Conditions'' clause, as applicable, or such other time as may reasonably be required by the Contracting Officer. * * * * * [FR Doc. 2016-21629 Filed 9-8-16; 8:45 am] BILLING CODE 6820-61-P
![62434 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules
GENERAL SERVICES • Mail: General Services The proposed rule changes fall into
ADMINISTRATION Administration, Regulatory Secretariat five categories: (1) Incorporating
Division, 1800 F Street NW., ATTN: Ms. existing agency policy previously issued
48 CFR Parts 501, 511, 517, 532, 536, Flowers, Washington, DC 20405. through other means, (2) reorganizing to
543, 546, and 552 Instructions: Please submit comments better align with the FAR, (3)
[GSAR Case 2015–G503; Docket No. 2016– only and cite GSAR Case 2015–G503 in incorporating agency unique clauses, (4)
0015; Sequence No. 1] all correspondence related to this case. incorporating supplemental material,
All comments received will generally be and (5) editing for clarity. Bringing
RIN 3090–AJ63 existing policy into the GSAR will allow
posted without change to http://
General Services Administration www.regulations.gov, including any for greater transparency and an
Acquisition Regulation (GSAR); personal and/or business confidential opportunity for the public to comment
Construction Contract Administration information provided. To confirm on these longstanding procedures. The
receipt of your comment(s), please proposed rule includes a total of five
AGENCY: Office of Acquisition Policy, check www.regulations.gov, new agency unique provisions and
General Services Administration (GSA). approximately two to three days after clauses, six new supplemental clauses,
ACTION: Proposed rule. submission to verify posting (except and revision and reorganization of eight
allow 30 days for posting of comments existing provisions and clauses.
SUMMARY: The General Services A GSAR rewrite initiative was
submitted by mail).
Administration (GSA) is issuing a undertaken by GSA to revise the GSAR
proposed rule amending the General FOR FURTHER INFORMATION CONTACT: For
starting in 2008. A proposed rule to
Services Administration Acquisition clarification about content, contact Ms.
update GSAR part 536, Construction
Regulation (GSAR) coverage on Christina Mullins, General Services
and Architect-Engineer Contracts was
construction contracts, including Acquisition Policy Division, GSA, by
initially published as GSAR Case 2008–
provisions and clauses for solicitations phone at 202–969–4066 or by email at
G509 in the Federal Register at 73 FR
and resultant contracts, to clarify, Christina.Mullins@gsa.gov. For
73199 on December 2, 2008. Due to the
update, and incorporate existing information pertaining to status or
variety of issues addressed in the GSAR
construction contract administration publication schedules, contact the
536 rewrite, and internal stakeholder
procedures. Regulatory Secretariat Division by mail
interest, the agency re-evaluated the
DATES: Interested parties should submit
at 1800 F Street NW., Washington, DC
implementation plan for the GSAR 536
written comments to the Regulatory 20405, or by phone at 202–501–4755.
rewrite and withdrew this initial
Secretariat Division on or before Please cite the GSAR Case 2015–G503,
proposed rule. The initial proposed rule
November 8, 2016 to be considered in Construction Contract Administration.
withdrawal was published in the
the formulation of a final rule. SUPPLEMENTARY INFORMATION: Federal Register at 80 FR 6944, on
ADDRESSES: Submit comments I. Background February 9, 2015. GSAR Case 2015–
identified by GSAR case 2015–G503 by G503 is the second of several new GSAR
any of the following methods: The General Services Administration cases to separately address the issues
• Regulations.gov: http:// (GSA) is amending the General Services and update the GSAR 536 text.
www.regulations.gov. Submit comments Administration Acquisition Regulation
II. Discussion and Analysis
via the Federal eRulemaking portal by (GSAR) to revise sections of GSAR part
inputting ‘‘GSAR Case 2015–G503’’ 536, Construction and Architect- The changes to the GSAR included in
under the heading ‘‘Comment or Engineer Contracts, and related parts, to the proposed rule are summarized in
Submission’’. Select the link ‘‘Comment maintain consistency with the Federal this section.
Now’’ that corresponds with GSAR Case Acquisition Regulation (FAR) and to 1. Eight new clauses for construction
2015–G503. Follow the instructions clarify, update and incorporate existing contracts previously issued through
provided on the screen. Please include construction contract administration other means are incorporated into GSAR
your name, company name (if any), and guidance previously implemented parts 211, 232, and 236. The new
‘‘GSAR Case 2015–G503’’ on all through internal Public Building Service clauses and a brief description are as
attached document(s). (PBS) policies. follows:
Name and No. Requirements Prescription
552.211–10 Commencement, Prosecution, Supplemental clause to FAR 52.211–10 to Same prescription as FAR clause.
and Completion of Work. address notice to proceed, substantial com-
pletion, and phased work.
552.211–12 Liquidated Damages—Construc- Supplemental clause to FAR 52.211–12 to Same prescription as FAR clause.
tion. address substantial completion and phased
work.
552.211–13 Time Extensions .......................... Supplemental clause to FAR 52.211–13 to Same prescription as FAR clause.
address the project schedule as a baseline.
552.211–70 Substantial Completion ................ Agency unique clause to define the term and Prescription consistent with that for FAR
address related requirements. 52.211–10.
552.232–5 Payments under Fixed-Price Con- Supplemental clause to FAR 52.232–5 to ad- Same prescription as FAR clause.
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struction Contracts. dress pre-invoice payment meetings and
clarify certification documentation required
for payment.
552.236–6 Superintendence by the Contractor Supplemental clause to FAR 52.236–6 to ad- Clause prescription has no dollar threshold,
dress project management resources and which is more inclusive than the FAR
responsibilities. clause that is only required at above sim-
plified, in order to satisfy GSA specific con-
tracting requirements.
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![62438 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules
Dated: September 9, 2016. items having a limited shelf-life, clause at 552.211–12, Liquidated
Jeffrey A. Koses, substitute Alternate I when required by Damages—Construction.
Senior Procurement Executive, Office of the program director.
Acquisition Policy, Office of Government- (ii) The contracting officer shall insert PART 517—SPECIAL CONTRACTING
wide Policy. 552.211–80, Age on Delivery, if the METHODS
required shelf-life period is more than ■ 6. The authority citation for 48 CFR
PART 501—GENERAL SERVICES 12 months, or when source inspection
ADMINISTRATION ACQUISITION part 517 is revised to read as follows:
can be performed within a short time
REGULATION SYSTEM period. Authority: 40 U.S.C. 121(c).
Therefore, GSA proposes to amend 48 (2) Stock replenishment contracts. ■ 7. Revise section 517.200 to read as
CFR parts 501, 511, 517, 532, 536, 543, The contracting officer shall insert follows:
546, and 552 as set forth below: 552.211–81, Time of Shipment, in
solicitations and stock replenishment 517.200 Scope of subpart.
■ 1. The authority citation for 48 CFR
part 501 continues to read as follows: contracts that do not include the (a) Except as provided in paragraph
Availability for Inspection, Testing, and (b) of this section, this subpart applies
Authority: 40 U.S.C. 121(c). Shipment/Delivery clause at 552.211–83 to contracts for supplies and services,
501.106 [Amended] and require shipment within 45 including architect-engineer services.
■ 2. Amend section 501.106 in the table
calendar days after receipt of the order. (b) Policies and procedures for the use
by— If shipment is required in more than 45 of options in solicitation provisions and
■ a. Removing GSAR reference days, the contracting officer shall use contract clauses for services involving
‘‘532.111(c)’’ and its corresponding Alternate I. construction, alteration, or repair
OMB control number ‘‘3090–0080’’; (3) Indeterminate testing time. The (including dredging, excavating, and
■ b. Removing from GSAR Reference contracting officer shall insert 552.211– painting) of buildings, bridges, roads, or
‘‘532.905–70’’ OMB control number 83, Availability for Inspection, Testing, other kinds of real property are
‘‘9000–0102’’ and adding ‘‘3090–0080’’ and Shipment/Delivery, in solicitations prescribed in 536.270. FAR subpart 17.2
in its place; and contracts that provide for source and this subpart 517.2 do not apply to
■ c. Removing GSAR Reference inspection by Government personnel the use of options in solicitation
‘‘532.905–71’’ and its corresponding and that require lengthy testing for provisions and contract clauses for
OMB control number ‘‘3090–0080’’; which time frames cannot be services involving construction,
■ d. Adding, in numerical sequence, determined in advance. If the contract is alteration, or repair (including dredging,
GSAR references ‘‘552.211–13(a)’’ and for stock items, the contracting officer excavating, and painting) of buildings,
‘‘552.211–70(b)’’ and their shall use Alternate I. bridges, roads, or other kinds of real
corresponding OMB control numbers (4) The contracting officer shall insert property.
‘‘9000–0026’’ and ‘‘9000–0058’’, the clause at 552.211–94, Time of ■ 8. Revise section 517.202 to read as
respectively; Delivery, in solicitations and contracts follows:
■ e. Adding, in numerical sequence, for supplies for the Stock Program when 517.202 Use of options.
GSAR reference ‘‘552.232–5’’ and its neither of the FAR delivery clauses
(FAR 52.211–8 or 52.211–9) is suitable. (a) Options may be used when they
corresponding OMB control numbers
(b) Construction. (1) The contracting meet one or more of the following
‘‘3090–0080’’, ‘‘9000–0070’’, and ‘‘9000–
officer shall insert the clause at objectives:
0102’’; and
■ f. Adding, in numerical sequence, 552.211–10, Commencement, (1) Reduce procurement lead time and
GSAR references ‘‘552.236–15’’ and Prosecution, and Completion of Work, associated costs.
‘‘552.236–72’’ and their corresponding in solicitations and contracts when a (2) Ensure continuity of contract
OMB control numbers ‘‘9000–0058’’ and fixed-price construction contract is support.
‘‘3090–XXXX’’, respectively. contemplated. (3) Improve overall contractor
(2) The contracting officer shall insert performance.
PART 511—DESCRIBING AGENCY the clause at 552.211–70, Substantial (4) Facilitate longer term contractual
NEEDS Completion in solicitations and relationships with those contractors that
contracts when a fixed-price continually meet or exceed quality
■ 3. The authority citation for 48 CFR performance expectations.
part 511 continues to read as follows: construction contract is contemplated.
■ 5. Add subpart 511.5, consisting of
(b) An option is normally in the
Authority: 40 U.S.C. 121(c).
section 511.504, to read as follows: Government’s interest in the following
■ 4. Revise section 511.404 to read as
circumstances:
follows: Subpart 511.5—Liquidated Damages (1) There is an anticipated need for
additional supplies or services during
511.404 Contract clauses. 511.504 Contract clauses. the contract term.
(a) Supplies or services—(1) Shelf-life (a) The contracting officer shall insert (2) When there is both a need for
items. The contracting officer shall use the clause at 552.211–12, Liquidated additional supplies or services beyond
the following clauses in solicitations Damages-Construction, in solicitations the basic contract period and the use of
and contracts that require delivery of and contracts for construction, other multi-year contracting authority is
shelf-life items within a specified than cost-plus-fixed-fee, when the inappropriate.
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number of months from the date of contracting officer determines that (3) There is a need for continuity of
manufacture or production: liquidated damages are appropriate (see supply or service support.
(i) The contracting officer shall insert FAR 11.501(a)). (c) An option shall not be used if the
552.211–79, Acceptable Age of (b) The contracting officer shall insert market price is likely to change
Supplies, if the required shelf-life the clause at 552.211–13, Time substantially and an economic price
period is 12 months or less, and lengthy Extensions, in solicitations and adjustment clause inadequately protects
acceptance testing may be involved. For contracts for construction that use the the Government’s interest.
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activities, activities on the critical path, and specifications, the specifications shall authority to act for the Contracting Officer;
major constraints underlying the sequence govern. but the Contractor assumes all the risk and
and logic of the project schedule. (3) In case of difference between the consequences of performing the contract in
(e) Activities. (1) The Contractor shall use standard details or specification drawings accordance with any order (including but not
a critical path method project schedule to and the drawings prepared specifically for limited to instruction, direction,
plan, coordinate, and perform the work. this contract, the drawings prepared interpretation, or determination) of anyone
(2) Activities shall be sufficiently detailed specifically for this contract shall govern. not authorized to issue such order.
and limited in duration to enable proper (f) Different requirements within the (c) If the Contractor receives written notice
planning and coordination of the work, contract documents shall be deemed from the Contracting Officer of non-
effective evaluation of the reasonableness inconsistent only if compliance with both compliance with any requirement of this
and realism of the project schedule, accurate cannot be achieved. contract, the Contractor must initiate action
monitoring of progress, and reliable analysis (g) Unless otherwise noted, the drawings as may be appropriate to comply with the
of schedule impacts. shall be interpreted to provide for a complete specified requirement as defined in the
(3) Activity durations shall be based upon construction, assembly, or installation of the notice. In the event the Contractor fails to
reasonable and realistic allocation of the work, without regard to the detail with which initiate such action within a reasonable
resources required to complete each activity, material components are shown in the period of time as defined in the notice, the
given physical and logistical constraints on drawings. Contracting Officer shall have the right to
the performance of the work. All logic shall order the Contractor to stop any or all work
validly reflect physical or logistical (End of clause) under the contract until the Contractor has
constraints on relationships between Alternate I (DATE). As prescribed in complied or has initiated such action as may
activities. Except for the first and last 536.521, add the following paragraph to be appropriate to comply within a reasonable
activities in the project schedule, each the basic clause: period of time. The Contractor will not be
activity shall have at least one predecessor (h) For the purposes of this clause, entitled to any extension of contract time or
and one successor relationship to form a specifications and drawings refer only to payment for any costs incurred as a result of
logically connected network plan from notice those included among the contract being ordered to stop work for such cause.
to proceed to the contract completion date. documents, and not to those produced by the
(i) Updates. Unless a different period for Contractor pursuant to its responsibilities (End of clause)
updates is specified elsewhere, the under the contract. ■ 28. Add new section 552.236–71 to
Contractor shall update the project schedule read as follows:
monthly to reflect actual progress in 552.236–70 [Removed]
completing the work, and submit the updated 552.236–71 Contractor Responsibilities.
■ 26. Remove section 552.236–70.
project schedule within 5 working days of As prescribed in 536.571, insert the
the end of each month. 552.236–71 [Redesignated as 552.236–70] following clause:
■ 25. Add section 552.236–21 to read as ■ 27. Redesignate section 552.236–71 as
Contractor Responsibilities (DATE)
follows: section 552.236–70 and revise it to read
as follows: (a) The Contractor shall be responsible for
552.236–21 Specifications and Drawings
for Construction. 552.236–70 Authorities and Limitations. compliance with applicable codes, standards
and regulations pertaining to the health and
As prescribed in 536.521, insert the As prescribed in 536.570, insert the safety of personnel during performance of the
following clause: following clause: contract.
Specifications and Drawings for (b) Unless expressly stated otherwise in the
Authorities and Limitations (DATE)
contract, the Contractor shall be responsible
Construction (DATE)
(a) All work shall be performed under the for all means and methods employed in the
The requirements of the clause entitled general direction of the Contracting Officer. performance of the contract.
‘‘Specifications and Drawings for The Contracting Officer alone shall have the (c) The Contractor shall immediately bring
Construction’’ at FAR 52.236–21, are power to bind the Government and to to the Contracting Officer’s attention any
supplemented as follows: exercise the rights, responsibilities, hazardous materials or conditions not
(a) In case of difference between small and authorities and functions vested in him by disclosed in the contract documents
large-scale drawings, the large-scale drawings the contract documents. The Contracting discovered by or made known to the
shall govern. Officer may designate contracting officer’s Contractor during the performance of the
(b) Schedules on any contract drawing representatives (CORs) to act for him. contract.
shall take precedence over conflicting Wherever any provision in this contract (d) The Contractor shall be responsible for
information on that or any other contract specifies an individual (such as, but not providing professional design services in
drawing. limited to, Construction Engineer, Resident connection with performance of the work or
(c) On any of the drawings where a portion Engineer, Inspector or Custodian) or portions of the work only if this
of the work is detailed or drawn out and the organization, whether Governmental or responsibility is expressly stated in the
remainder is shown in outline, the parts private, to perform any act on behalf of or in contract, and the contract documents provide
detailed or drawn out shall apply also to all the interests of the Government, that the performance and design criteria that such
other like portions of the work. individual or organization shall be deemed to services will be required to satisfy. In the
(d) Where the word ‘‘similar’’ occurs on the be the COR under this contract but only to performance of such work, the Contractor
drawings, it shall have a general meaning and the extent so specified. The Contracting shall be responsible for retaining licensed
not be interpreted as being identical, and all Officer may, at any time during the design professionals, who shall sign and seal
details shall be worked out in relation to performance of this contract, vest in any such all drawings, calculations, specifications and
their location and their connection with COR additional power and authority to act other submittals that the licensed
other parts of the work. for him or designate additional CORs, professional prepares. The Contractor shall
(e) Standard details or specification specifying the extent of their authority to act be responsible for, and GSA shall be entitled
drawings are applicable when listed, bound for him. A copy of each document vesting to rely upon, the adequacy and completeness
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with the specifications, noted on the additional authority in a COR or designating of all professional design services provided
drawings, or referenced elsewhere in the an additional COR shall be furnished to the under the contract.
specifications. Contractor. (e) Where installation of separate work
(1) Where notes on the specification (b) The Contractor shall perform the components as shown in the contract will
drawings indicate alterations, such contract in accordance with any order result in conflict or interference between
alterations shall govern. (including but not limited to instruction, such components or with existing conditions,
(2) In case of difference between standard direction, interpretation, or determination) including allowable tolerances, it is the
details or specification drawings and the issued by a COR in accordance with his Contractor’s responsibility to bring such
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![62444 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules
conflict or interference to the attention of the Contractor shall assume full responsibility design criteria expressed in the contract
Contracting Officer and seek direction before for correction of such work, and any fees or documents.
fabrication, construction, or installation of penalties that may be assessed for non-
any affected work. If the Contractor compliance. 552.236–73 through 81 [Removed]
fabricates, constructs, or installs any work ■ 29. Add section 552.236–72 to read as ■ 30. Remove sections 552.236–73
prior to receiving such direction, the through 81.
Contractor shall be responsible for all cost
follows:
and time incurred to resolve or mitigate such 552.236–72 Submittals. 552.236–82 [Redesignated as 552.236–73]
conflict or interference. ■ 31. Redesignate section 552.236–82 as
(f) Where drawings show work without
As prescribed in 536.572, insert the
following clause: section 552.236–73 and revise the
specific routing, dimensions, locations, or introductory text to read as follows:
position relative to other work or existing Submittals (DATE)
conditions, and such information is not 552.236–73 Subcontracts.
specifically defined by reference to (a) The Contractor shall prepare and As prescribed in 536.573, insert the
specifications or other information supplied submit all submittals as specified in the following clause:
in the contract, the Contractor is responsible contract or requested by the Contracting
for routing, dimensioning, and locating such Officer.
* * * * *
work in coordination with other work or ■ 32. Add new sections 552.236–74
(1) Submittals may include: safety plans,
existing conditions in a manner consistent schedules, shop drawings, coordination through 552.236–77 to read as follows:
with contract requirements. drawings, samples, calculations, product
(g) It is not the Contractor’s responsibility 552.236–74 Evaluation of Options.
information, or mockups.
to ensure that the contract documents (2) Shop drawings may include fabrication, As prescribed in 536.270–5(a), insert
comply with applicable laws, statutes, erection and setting drawings, manufacturers’ the following provision:
building codes and regulations. If it comes to scale drawings, wiring and control diagrams,
the attention of the Contractor that any of the cuts or entire catalogs, pamphlets,
Evaluation of Options (DATE)
contract documents do not comply with such descriptive literature, and performance and The Government will evaluate offers for
requirements, the Contractor shall promptly test data. award purposes by adding the total price for
notify the Contracting Officer in writing. If (b) Unless otherwise provided in this all options to the total price for the basic
the Contractor performs any of the work prior contract, or otherwise directed by the requirement. Evaluation of options will not
to notifying and receiving direction from the Contracting Officer, submittals shall be obligate the Government to exercise the
Contracting Officer, the Contractor shall submitted to the Contracting Officer. option(s).
assume full responsibility for correction of (c) The Contractor shall be entitled to
such work, and any fees or penalties that may (End of provision)
receive notice of action on submittals within
be assessed for non-compliance. a reasonable time, given the volume or 552.236–75 Evaluation Exclusive of
complexity of the submittals and the Options.
(End of clause) criticality of the affected activities to
Alternate I (DATE). As prescribed in substantial completion as may be indicated
As prescribed in 536.270–5(b), insert
536.571, delete paragraphs (d), (e), (f), in the project schedule. the following provision:
and (g) of the basic clause, and insert (d) Review of submittals will be general Evaluation Exclusive of Options (DATE)
paragraphs (d), (e), (f), and (g) as and shall not be construed as permitting any
follows: departure from the contract requirements. The Government will evaluate offers for
(e) The Contractor shall not proceed with award purposes by including only the price
(d) The Contractor shall be responsible for construction work or procure products or for the basic requirement. Options will not be
providing professional design services unless materials described or shown in submittals included in the evaluation for award
this responsibility is expressly excluded from until the submittal is reviewed. Any work or purposes.
the contract. In the performance of such activity undertaken prior to review shall be
work, the Contractor shall be responsible for at the Contractor’s risk. Should the
(End of provision)
retaining licensed design professionals, who Contracting Officer subsequently determine
shall sign and seal all drawings, calculations, 552.236–76 Basis of Award—Sealed
that the work or activity does not comply Bidding Construction
specifications and other submittals that the with the contract, the Contractor shall be
licensed professional prepares. The responsible for all cost and time required to As prescribed in 536.270–5(c), insert
Contractor shall be responsible for, and GSA comply with the Contracting Officer’s the following provision:
shall be entitled to rely upon, the adequacy determination. The Contracting Officer shall
and completeness of all professional design Basis of Award—Sealed Bidding
have the right to order the Contractor to cease
services provided under the contract. Construction (DATE)
execution of work for which submittals have
(e) The Contractor’s responsibilities not been reviewed. The Government shall not A bid may be rejected as nonresponsive if
include the responsibilities of the Architect- be liable for any cost or delay incurred by the the bid is materially unbalanced as to bid
Engineer Contractor, as specified in FAR Contractor attributable to the proper exercise prices. A bid is unbalanced when the bid is
52.236–23. of this right. based on prices significantly less than cost
(f) The Contractor shall include in all (f) The Contractor shall identify, in writing, for some work and significantly overstated
subcontracts that require professional design all deviations or changes in resubmitted for other work.
services express terms establishing GSA as a submittals. In the absence of such written
third party beneficiary. No other person shall notice, review of a resubmission shall not (End of provision)
be deemed a third party beneficiary of the include or apply to such deviations or Alternate I (DATE). As prescribed in
contract. changes. 536.270–5(c), designate the basic
(g) The Contractor shall determine whether provision as paragraph (a) and add the
the information contained in the contract (End of clause) following paragraph to the basic
documents complies with applicable laws,
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Alternate I (DATE). As prescribed in provision:
statutes, building codes and regulations. If it 536.572, add the following paragraph to
comes to the attention of the Contractor that (b) The low bidder for purposes of award
any of the contract documents do not comply
the basic clause: is the responsible bidder offering the lowest
with such requirements, the Contractor shall (g) The Contractor shall submit design aggregate price for (1) the base requirement
promptly notify the Contracting Officer in documents for review in accordance with plus (2) all options designated to be
writing. If the Contractor performs any of the PBS–P100. The Government shall review evaluated. The evaluation of options will not
work prior to notifying and receiving submittals for the limited purpose of obligate the Government to exercise the
direction from the Contracting Officer, the verifying that the documents conform to the options.
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552.236–77 Government’s Right to placing a task order or establishing a Acquisition Regulation (GSAR) to
Exercise Options. Blanket Purchase Agreement (BPA) establish special ordering procedures
As prescribed in 536.270–5(d), insert against a Federal Supply Schedule (FSS) (per FAR 8.403(b)). These special
the following clause: contract. This proposed rule seeks to ordering procedures clarify the
provide clear and comprehensive authority to acquire order-level
Government’s Right to Exercise Options
implementation of the ability to acquire materials when placing an order or
(DATE)
order-level materials through the FSS establishing a BPA against an FSS
(a) The Government may exercise any program to create parity between FSS contract. Currently, most commercial
option in writing in accordance with the contracts and commercial indefinite- indefinite-delivery/indefinite-quantity
terms and conditions of the contract within delivery/indefinite-quantity (IDIQ) (IDIQ) contracts provide the flexibility
_____ [insert the period of time within which
contracts, reduce the need to conduct to easily acquire order-level materials;
the Contracting Officer may exercise the
option]. Unless otherwise specified, options less efficient procurement transactions, however the FSS program does not. This
may be exercised within 90 calendar days of lower barriers of entry to the federal proposed rule aims to create parity
contract award. marketplace and make it easier to do between the FSS program and other
(b) If the Government exercises the option, business the federal government. commercial IDIQs while also ensuring
the contract shall be considered to include DATES: Interested parties should submit an appropriate set of controls or
this option clause. written comments to the Regulatory safeguards are put in place.
(End of clause) Secretariat Division at one of the Improving the acquisition of order
■ 33. Amend section 552.243–71 by— addressees shown below on or before level materials through the FSS program
■ a. Revising the date of the clause, November 8, 2016 to be considered in was expressly cited in the Office of
■ b. Removing from paragraph (a) ‘‘FAR the formation of the final rule. Federal Procurement Policy’s roadmap
52.243–4’’ and adding ‘‘FAR 52.243–4, ADDRESSES: Submit comments in for simplifying the federal procurement
the ‘‘Changes and Changed Conditions’’ response to GSAR Case 2016–G506 by process. (See Transforming the
clause prescribed by FAR 52.243–5,’’ in any of the following methods: Marketplace: Simplifying Federal
its place; and • Regulations.gov: http:// Procurement to Improve Performance,
■ c. Revising paragraph (c). www.regulations.gov. Submit comments Drive Innovation, and Increase Savings,
The revisions read as follows: by searching for ‘‘GSAR Case 2016– available at https://
G506.’’ Select the link ‘‘Comment Now’’ www.whitehouse.gov/sites/default/files/
552.243–71 Equitable Adjustments. that corresponds with GSAR Case 2016– omb/procurement/memo/simplifying-
As prescribed in 543.205, insert the G506. Follow the instructions provided federal-procurement-to-improve-
following clause: on the screen. Please include your performance-drive-innovation-increase-
Equitable Adjustments (DATE) name, company name (if any), and savings.pdf.) Providing the same
‘‘GSAR Case 2016–G506’’ on your flexibilities in the FSS program that are
* * * * * attached document. currently authorized for commercial
(c) The proposal shall be submitted within • Mail: General Services
the time specified in the ‘‘Changes’’, IDIQ vehicles will help to reduce
Administration, Regulatory Secretariat
‘‘Changes and Changed Conditions’’, or contract duplication and the associated
Division (MVCB), ATTN: Ms. Flowers,
‘‘Differing Site Conditions’’ clause, as administrative costs and inefficiencies
applicable, or such other time as may 1800 F Street NW., 2nd Floor,
for agencies. Simultaneously, it will
reasonably be required by the Contracting Washington, DC 20405.
Instructions: Please submit comments reduce transaction costs for contractors,
Officer. including small businesses, by
* * * * * only and cite GSAR Case 2016–G506, in
all correspondence related to this case. eliminating the need for FSS contract
[FR Doc. 2016–21629 Filed 9–8–16; 8:45 am] holders to compete for and enter into
All comments received will generally be
BILLING CODE 6820–61–P
posted without change to http:// additional contracts for this ancillary
www.regulations.gov, including any work. The Government Accountability
personal and/or business confidential Office (GAO) reports the costs of being
GENERAL SERVICES on multiple contract vehicles ranged
ADMINISTRATION information provided. To confirm
receipt of your comment(s), please from $10,000 to $1,000,000 due to
48 CFR Parts 515, 538, and 552 check www.regulations.gov, increased bid and proposal, and
approximately two to three days after administrative costs.
[GSAR Case 2016–G506; Docket No. 2016–
0016; Sequence No. 1]
submission to verify posting (except This proposed rule would achieve
allow 30 days for posting of comments parity for the FSS program by providing
RIN 3090–AJ75 submitted by mail). further clarification in the GSAR of
FOR FURTHER INFORMATION CONTACT: Ms. regulatory changes made by the Federal
General Services Administration Acquisition Regulatory Council in years
Leah Price, Procurement Analyst, at
Acquisition Regulation (GSAR); past to overcome the holdings in a Court
703–605–2558, or Mr. Curtis Glover, Sr.,
Federal Supply Schedule, Order-Level of Federal Claims decision, ATA
Procurement Analyst, at 202–501–1448,
Materials Defense Industries, Inc. v. United States,
for clarification of content. For
AGENCY: Office of Acquisition Policy, information pertaining to status or 38 Fed. Cl. 489 (1997) and a GAO
General Services Administration. publication schedules, contact the opinion, Pyxis Corporation, B–282469;
Regulatory Secretariat Division at 202– B–282469.2. These decisions were
ehiers on DSK5VPTVN1PROD with PROPOSALS
ACTION: Proposed rule.
501–4755. Please cite GSAR Case 2016– issued at a time when there was no
SUMMARY: The General Services G506. guidance in the FAR about open market
Administration (GSA) is proposing to SUPPLEMENTARY INFORMATION: items and served as impetus for opening
amend the General Services Federal Acquisition Regulation (FAR)
Administration Acquisition Regulation I. Background Case 1999–614, bringing the guidance
(GSAR) to clarify the authority to GSA is proposing to amend the from the FSS Contractor Guide into the
acquire order-level materials when General Services Administration FAR. The FAR Case stated:
VerDate Sep<11>2014 15:27 Sep 08, 2016 Jkt 238001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\09SEP1.SGM 09SEP1](https://thefederalregister.org/doc/81_FR_62609/page/12.svg)
Document Created: 2018-02-09 13:15:24
Document Modified: 2018-02-09 13:15:24
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Interested parties should submit written comments to the Regulatory Secretariat Division on or before November 8, 2016 to be considered in the formulation of a final rule. | |
| Contact | For clarification about content, contact Ms. Christina Mullins, General Services Acquisition Policy Division, GSA, by phone at 202-969-4066 or by email at [email protected] For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division by mail at 1800 F Street NW., Washington, DC 20405, or by phone at 202- 501-4755. Please cite the GSAR Case 2015-G503, Construction Contract Administration. | |
| FR Citation | 81 FR 62434 | |
| RIN Number | 3090-AJ63 | |
| CFR Citation | 48
CFR
501 48 CFR 511 48 CFR 517 48 CFR 532 48 CFR 536 48 CFR 543 48 CFR 546 48 CFR 552 |
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