83 FR 45384 - VA Acquisition Regulation: Construction and Architect-Engineer Contracts
DEPARTMENT OF VETERANS AFFAIRS Federal Register Volume 83, Issue 174 (September 7, 2018)
Federal Register Volume 83, Issue 174 (September 7, 2018)
| Page Range | 45384-45396 | |
| FR Document | 2018-18309 |
[Federal Register Volume 83, Number 174 (Friday, September 7, 2018)] [Proposed Rules] [Pages 45384-45396] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-18309] ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 48 CFR Parts 801, 825, 836, 842, 846, 852 and 853 RIN 2900-AQ18 VA Acquisition Regulation: Construction and Architect-Engineer Contracts AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, will publish them in the Federal Register. VA will combine related topics, as appropriate. In particular, this rulemaking revises VAAR concerning Construction and Architect-Engineer Contracts, as well as affected parts covering the Department of Veterans Affairs Acquisition Regulations System, Foreign Acquisition, Contract Administration and Audit Services, Quality Assurance, Solicitation Provisions and Contract Clauses, and Forms. DATES: Comments must be received on or before November 6, 2018 to be considered in the formulation of the final rule. ADDRESSES: Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273-9026 (this is not a toll-free number). Comments should indicate that they are [[Page 45385]] submitted in response to ``RIN 2900-AQ18--VA Acquisition Regulation: Construction and Architect-Engineer Contracts.'' Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Mr. Ricky Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 632-5276. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: Background This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR. VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions, and removals have been reviewed and concurred with by VA's Integrated Product Team of agency stakeholders. The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, and sections. The Office of Federal Procurement Policy Act, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR. When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at title 48 CFR, chapter 8, parts 801 to 873. Discussion and Analysis VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authorities that are removed from the VAAR will be included in the VAAM as internal agency guidance. The VAAM is being created in parallel with these revisions to the VAAR and is not subject to the rulemaking process as they are internal VA procedures and guidance. Therefore, the VAAM will not be finalized until corresponding VAAR parts are finalized, and the VAAM is not yet available on line. VAAR Part 801--Department of Veterans Affairs Acquisition Regulation System This proposed rule contains existing information collection requirements. The proposed rule results in multiple actions affecting these information collections, including outright removal of the information collection. In 801.106, OMB approval under the Paperwork Reduction Act, we propose to amend 801.106 table columns titled ``48 CFR part or section where identified and described,'' and ``Current OMB control number.'' We propose to remove the reference to 852.236-84, Schedule of Work Progress, and discontinue the associated corresponding OMB Control Number 2900-0422 as the information is adequately covered in agency specifications and its use in a clause is not required or appropriate. For access to agency specifications where such information is adequately covered, see the VA Technical Information Library (TIL), VA's source for Electronic Design and Construction Information, at https://www.cfm.va.gov/TIL/, including Master Specification Division 01, General Requirements: 01 32 16.01, Architectural and Engineering CPM Schedules; 01 32 16.13, Network Analysis Schedules; 01 16.15, Project Schedules (Small Projects--Design/Bid/Build); 01 32 16.16, Network Analysis Schedules (Design-Build Only); and, 01 32 16.17, Project Schedules (Small Projects--Design/Build). In 801.106, in reference to table described, we propose to remove the reference to 852.236-89, Buy American Act, and discontinue the associated corresponding OMB Control Number 2900-0622 as the clause is being removed as set forth in the preamble when describing actions under VAAR part 852 as it duplicates FAR clauses and is unnecessary. In 801.106, in reference to the table described, we propose to remove the reference to 852.236-91, Special Notes, and discontinue the associated corresponding OMB Control Number 2900-0623. Paragraph (a) of the clause is already covered via required System for Award Management (SAM) representations and certifications. Paragraphs (b), (c) and (d) are addressed in Section 01 00 00, General Requirements, contained in all construction contract specifications (reference the VA Office of Construction and Facilities Management, Technical Information Library (TIL), VA Numbered Standards for Construction, PG-18-1, Master Construction Specifications, Division 01--General Requirements). Paragraph (e), which references claims by the contractor for delay attributed to unusually severe weather under FAR 52.249-14, Excusable Delays, is governed by the Network Analysis System specifications-- Section 01 32 16.13, Network Analysis Schedules--Major Projects; 01 32 16.15, Project Schedules (Small Projects Design-Bid-Build); 01 32 16.16, (Network Analysis System (Design-Build Only); or 01 32 16.17, Project Schedule (Small Projects Design-Build), as applicable, which provide details of the requirements the contractor must follow to justify time extensions. VA internal procedures related to how contracting officers and Government Resident Engineers or technical reviewers should analyze contractor data and which records to review to support such claims for time extensions due to unusually severe weather, not having a significant effect beyond the internal operating procedures of the VA, would be moved to the VAAM. VAAR Part 825--Foreign Acquisition We propose to revise the authority citations under part 825 to include a reference to 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. We propose to remove subpart 825.2, Buy American Act--Construction Materials, and the associated prescribed clauses under subpart 825.11, Solicitation Provisions and Contract Clauses, as it is duplicative of the FAR. Clause 852.236-89, Buy American Act, along with its Alternate I and II, is [[Page 45386]] proposed for removal as set forth in VAAR part 852 of the preamble. The clause and its alternates are referenced in a table in 825.1102, Acquisition of construction. As the clause is proposed for removal, this table which prescribes the use of the clause is also proposed for removal. In accordance with FAR drafting standards and the requirement in FAR 1.304(b)(1) that agency acquisition regulations shall not unnecessarily repeat, paraphrase, or otherwise restate material contained in the FAR, these subparts are therefore proposed for removal. VAAR Part 836--Construction and Architect-Engineer Contracts We propose to revise the authority citations under part 836 to include a reference to 41 U.S.C. 1121(c)(3) and 1303(a)(2), which is from Title 41, Public Contracts, and speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. 41 U.S.C. 1303(a)(2) is added to reflect VA's authority as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA. We propose to revise the authority citations under part 836 to include a reference to 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. In 836.202, Specifications, we propose to remove paragraphs (a) and (b) as internal procedural guidance, and to redesignate and renumber it to 836.202-70 to indicate that it is a VA supplement to FAR 36.202. The title would be revised from ``Specifications'' to ``Specifications--use of equal products'' to reflect the topic that fits intelligibly under this section of the FAR. The existing paragraph (c) would be revised to reflect that use of clause 852.236-90, Restriction on Submission and Use of Equal Products, in solicitations and contracts requires approval of the justification documentation required by FAR 11.105, Items peculiar to one manufacturer. The paragraph reference to (c) under this section would be removed as the VAAR is being supplemented and only one paragraph will be reflected which would be unnumbered and unlettered. The existing VAAR language which is proposed for revision with this rule is necessary as the FAR speaks to ``brand name or equal'' and the purpose of the VA's clause is to be clear that when the VA enters products for items peculiar to one manufacturer (brand name), ``or equal'' products are not permissible substitutes. In 836.203, Government estimate of construction costs, we propose to renumber and retitle the section to 836.203-70, Protection of the independent government estimate--sealed bid, and would revise it to more specifically clarify VA procedures to protect the independent government estimate in sealed bid acquisitions when bid openings are held. This would also provide policy regarding marking the Independent Government Estimate (IGE) as ``For Official Use Only (FOUO)'' as well as procedures for filing the document and later removing the protective marking after a public bid opening. In 836.204, Disclosure of the magnitude of construction projects, we propose to revise the estimated price ranges to provide a better measure for contractors to gauge estimated construction costs for projects of the National Cemetery Administration and the Office of Construction and Facilities Management. In 836.206, Liquidated damages, we propose to remove the entire section since the subject matter is adequately covered in the FAR. In 836.209, Construction contracts with architect-engineer firms, we propose to remove the entire section as internal procedures of VA not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)), and which would be moved to the VAAM. In 836.213, Special procedures for sealed bidding in construction contracting, we propose to remove the section title as the underlying subsections are proposed for removal. We propose to remove 836.213-4, Notice of award, as internal procedures of VA not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)), and which would be moved to the VAAM. We propose to remove 836.213-70, Notice to proceed, as procedural information internal to VA which would be moved to the VAAM. We propose to revise 836.500, Scope of subpart, to remove paragraphs (b) and (c) which duplicate the authority to use other clauses and provisions as already provided for in FAR 36.500. We propose to redesignate paragraph (a) as an unnumbered paragraph in keeping with FAR Drafting Guidelines and formatting style. We propose to revise 836.501, Performance of work by the contractor, to make minor edits and to add a reference to VAAR subpart 819.70, which implements the Veterans First Contracting Program. In 836.513, Accident prevention, we propose to remove the entire section since the prescribed clause is duplicative of coverage in FAR clause 52.236-1, Accident Prevention. We propose to revise 836.521, Specifications and drawings for construction, only to make minor edits for capitalization. We propose to remove 836.570, Correspondence, as the clause it prescribes 852.236-76, Correspondence, is proposed for removal. The subject matter will be addressed more appropriately in a ``Notice to Proceed'' letter to the contractor from the contracting officer. Therefore, the clause and its prescription are unnecessary. We propose to remove 836.571, Reference to ``standards,'' since the clause it prescribes 852.236-77, Reference to ``Standards'', is proposed for removal. The subject matter is addressed in the VA Master Specifications (located at: https://www.cfm.va.gov/til/), and the clause and therefore its prescription is unnecessary. In 836.572, Government supervision, we propose to remove the entire section and redesignate the numbering and placement to the more appropriate VAAR part 842, Contract Administration and Audit Services, by adding a new section 842.204, Contract clause for Government construction contract administration. The clause would be therefore renumbered and revised accordingly. In 836.573, Daily report of workers and materials, we propose to amend the title of the section and report to ``Contractor production report,'' and would prescribe a revised clause 852.236-79, Contractor Production Report. We propose to revise 836.574, Subcontracts and work coordination, only to make minor edits for capitalization. We propose to remove 836.575, Schedule of work progress, since the subject matter of the prescribed clause 852.236-84, Schedule of Work Progress, is addressed in the VA Master Specifications, Division 01, General Requirements: 01 32 16.01, Architectural and Engineering CPM [[Page 45387]] Schedules; 01 32 16.13, Network Analysis Schedules; 01 16.15, Project Schedules (Small Projects--Design/Bid/Build); 01 32 16.16, Network Analysis Schedules (Design-Build Only); and, 01 32 16.17, Project Schedules (Small Projects--Design/Build). The clause is proposed for removal and therefore its prescription would be unnecessary. We propose to remove 836.576, Supplementary labor standards provisions, since the subject matter of the prescribed clause 852.236- 85, Supplementary Labor Standards Provisions, is addressed in FAR clauses 52.222-6, Construction Wage Rate Requirements (formerly known as Davis-Bacon Act) and 52.222-8, Payrolls and Basic Records. The clause is proposed for removal and therefore its prescription would be unnecessary. We propose to remove 836.577, Workers' compensation, which prescribes clause 852.236-86, Workers' Compensation. The clause is unnecessary since it merely cites a Public Law regarding applicability of States' workers' compensation laws. The VAAR is not required to cite individual States' workers' compensation laws to make them applicable to companies performing work in individual states. The clause is proposed for removal and therefore its prescription would be unnecessary. We propose to remove 836.579, Special Notes, which prescribes the clause at 852.236-91, Special Notes. As stated under VAAR part 801 in the preamble of this proposed rule, the clause's paragraph (a) is already covered via required System for Award Management (SAM) representations and certifications. Paragraphs (b), (c) and (d) are addressed in Section 01 00 00, General Requirements, contained in all construction contract specifications (reference the VA Office of Construction and Facilities Management, Technical Information Library (TIL), VA Numbered Standards for Construction, PG-18-1, Master Construction Specifications, Division 01--General Requirements). And, paragraph (e), which references claims by the contractor for delay attributed to unusually severe weather under FAR 52.249-14, Excusable Delays, is governed by the Network Analysis System specifications-- Section 01 32 16.13, Network Analysis System; 01 32 16.13, Project Schedules (Small Projects Design-Bid-Build); 01 32 16.16, (Network Analysis System (Design-Build Only); or 01 32 16.17, Project Schedule (Small Projects Design-Build), as applicable, which provide details of the requirements the contractor must follow to justify time extensions. VA internal procedures related to how contracting officers and Government Resident Engineers or technical reviewers should analyze contractor data and which records to review to support such claims for time extensions due to unusually severe weather, not having a significant effect beyond the internal operating procedures of the VA, would be moved to the VAAM. The clause is proposed for removal and therefore its prescription as contained in this section would be unnecessary. We propose to add 836.580, Notice to bidders--additive or deductive bid line items, and a prescription requiring the contracting officer to insert the provision 852.236-92, Notice to Bidders--Additive or Deductive Bid Line Items, in invitations for bids when the contracting officer determines that funds may not be available for all the desired construction features at contract award. We propose to remove 836.602, Selection of firms for architect- engineer contracts. Previously there was no text under this heading/ title. As all sections under this are now proposed for removal, no heading/title would be required. We propose to remove 836.602-1, Selection criteria, as internal procedural information which will be revised and moved to the VA Acquisition Manual. We propose to remove 836.602-2, Evaluation boards; 836.602-4, Selection authority; and 836.602-5, Short selection process for contracts not to exceed the simplified acquisition threshold, as internal procedural information which will be revised and moved to the VA Acquisition Manual. We propose to revise 836.603, Collecting data on and appraising firms' qualifications. The title would be revised to correct a typo and the text would be revised to include a Veterans Benefits Administration point of contact for filing and maintaining Standard Form (SF) 330 Files as required by the FAR. In 836.606, Negotiations, we propose to revise the section in its entirety to remove internal agency procedural guidance in section 836.606-70, General, as unnecessary, and to remove the title, ``General,'' by redesignating section 836.606-71, Architect-Engineer's proposal, to 836.606-70, and retitling it to read ``Architect-Engineer firms' proposal.'' We propose to revise the text which requires use of the VA Form 6298, Architect-Engineer Fee Proposal, which has been updated with the new form number and updating FAR citation references and thresholds. This form is used for the submission of a contractor's proposal and supporting cost data from the selected firm during negotiation of an A-E contract for design services estimated at $50,000 or more. And, we propose to change the word ``must'' to ``shall'' when requiring the use of the form as prescribed in this section. In 836.606-72, Contract price, we propose to remove the section in its entirety and move it to the companion VA Acquisition Manual as internal operating procedures of the VA. We propose to redesignate and revise 836.606-73, Application of 6 percent architect-engineer fee limitation, to section 836.606-71, and retain the same title, ``Application of 6 percent architect-engineer fee limitation,'' to place all text now under section 836.606 in sequential subsections. 836.606-71, Application of 6 percent architect- engineer fee limitation, would provide policy explaining when the limitation applies, what costs the 6 percent fee limitation does and does not cover, and delete use of VA Form 10-1193, Application for Health Care Facility Program, and VA Form 10-6238, EMIS Construction Program Estimate Worksheet. The forms proposed for deletion are not required for use in this instance. We propose to add subpart 836.70--Unique Forms for Contracting for Construction, Architect-Engineer Services, and Dismantling, Demolition, or Removal of Improvements, and the sections falling under that subpart--836.7000, Scope of subpart; and 836.7001, Unique construction and architect-engineer services forms. This would prescribe forms contracting officers may use for construction, architect-engineer services or dismantling, demolition or removal of improvements. In 836.7000, Scope of subpart, it sets forth the requirements for use of VA unique forms. In the new proposed 836.7001, Unique construction and architect- engineer services forms, we propose to add the following forms as prescribed elsewhere in the VAAR or as reflected in the individual prescriptions-- In paragraph (a) we propose to add information referencing VA Form 6298, Architect-Engineer Fee Proposal (see 853.236-70), and pointing information to the prescription. VA Form 6298, Architect-Engineer Fee Proposal, shall be used as prescribed in 836.606-71. In paragraph (b) we propose to add the prescription for VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services) (see 853.236-71). VA Form 2138, Order for Supplies or Services (Including Task Orders for [[Page 45388]] Construction or A-E Services), may be used for ordering supplies or services, including task orders for Construction or A-E services, to include dismantling, demolition, or removal of improvements. In paragraph (c) we propose to add information referencing VA Form 10101, Contractor Production Report (see 853.236-72), and pointing information to the prescription. Contractors may use VA Form 10101, Contractor Production Report, or a contractor generated form containing the same type of information contained in the form, as required by 836.573 which prescribes the clause at 852.236-79, Contractor Production Report. VAAR Part 842--Contract Administration and Audit Services We propose to revise the authority citations under part 842 to include a reference to 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. We propose to add coverage under VAAR subpart 842.2, Contract Administration Services, and 842.271, Contract clause for Government construction contract administration, to prescribe clause 852.242-70, Government Construction Contract Administration, that would describe contract administration functions to be delegated under construction contracts that exceed the micro-purchase threshold for construction. It would describe the role of the designated contracting officer performing contract administration, as well as certain functions that are delegated to VA resident engineers, if assigned. It also contains some language found under the previous clause, 852.236-78, Government Supervision. The information more properly falls under FAR part 42 and the VAAR supplement, so the new clause number more properly follows FAR drafting conventions, to include placing the prescription in the same part where the clause itself is located. VAAR Part 846--Quality Assurance We propose to revise the part 846 authorities to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. We also propose to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. In 846.312, Construction contracts, which prescribes clause 852.236-74, Inspection of construction, we propose to remove the entire section since VA Master Specifications provide the requirements for performing inspections. The clause is proposed for removal and therefore its prescription would be unnecessary. VAAR Part 852--Solicitation Provisions and Contract Clauses In 852.236-71, Specifications and Drawings for Construction, we propose to amend the clause to place with the contractor the responsibility for checking all drawings furnished immediately upon receipt, and comparing them and verifying figures before laying out the work. It would also require the prompt notification of the contracting officer of any discrepancies. It would hold the contractor responsible for any errors that might have been avoided by complying with these requirements, for identifying errors or omissions that are necessary to carry out the intent of the drawings and specifications, and for performing such work as if fully and correctly set forth. In 852.236-72, Performance of Work by the Contractor, we propose to amend the clause and Alternate 1 to make the text gender-neutral, to update terminology and to clarify language. In 852.236-74, Inspection of Construction, we propose to remove and reserve the clause in its entirety since VA Master Specifications provide the requirements for performing inspections. In 852.236-76, Correspondence, we propose to remove and reserve the clause since it is administrative guidance covered in the Notice to Proceed letter. In 852.236-77, Reference to ``Standards,'' we propose to remove and reserve the clause as unnecessary since VA Master Specifications are used in VA contracts. In 852.236-78, Government Supervision, we propose to remove and reserve the clause and would propose to include a revised version at 852.242-70, Government Construction Contract Administration. In 852.236-79, Daily Report of Workers and Materials, we propose to amend the title of the clause to ``Contractor Production Report'' and would revise the clause to reflect use of VA Form 10101 which is based on industry reporting standards. In 852.236-80, Subcontracts and Work Coordination, we propose to make minor capitalization corrections for Contractor and Contracting Officer, and to clarify in paragraph (d) that the Government reserves the right to refuse to permit employment on the work, or require dismissal from the work, of any subcontractor or subcontractor employee, who, by reason of previous unsatisfactory work on Department of Veterans Affairs projects or for any other reason, is considered by the contracting officer to be incompetent, careless, or otherwise objectionable. The words ``or subcontractor employee'' and ``careless'' would be added that were previously missing from the text. In 852.236-84, Schedule of Work Progress, we propose to remove the clause in its entirety and reserve it since the subject is already covered in the Network Analysis Schedules section of the VA Master Specifications. In 852.236-85, Supplementary Labor Standards Provisions, we propose to remove the clause in its entirety and reserve it since it is procedural and is addressed in FAR clauses 52.222-6, Construction Wage Rate Requirements, and 52.222-8, Payrolls and Basic Records. In 852.236-86, Workers' Compensation, we propose to remove the clause in its entirety and reserve it since it merely cites a Public Law regarding applicability of States' workers' compensation laws. The VAAR is not required to cite individual States' workers' compensation laws to make them applicable to companies performing work in individual states. In 852.236-87, Accident Prevention, we propose to remove the clause in its entirety and reserve it since the subject is already covered in the Accident Prevention Plan section of the VA Master Specifications. In 852.236-89, Buy American Act, along with its Alternate I and II, we propose to remove and reserve the clause as it is redundant to the FAR and is unnecessary. In 852.236-90, Restriction on Submission and Use of Equal Products, we propose to revise the clause to clarify the language to reinforce that the submission of ``equal'' products is not permitted; and to reformat the clause to standard FAR drafting convention and specify that notwithstanding any other clause or provision, only brand name [[Page 45389]] products for the items listed in the fill-in clause will be authorized for use on the contract. The prescription for this clause would require compliance with the documentation and authorizations required by FAR 11.105 when it is determined that only one product will meet the Government's minimum needs. In 852.236-91, Special Notes, we propose to remove the clause in its entirety and reserve it since the material addressed is covered by the certification under the System for Award Management or under the Shop Drawings, Product Data & Submittals section of the VA Master Specifications. We propose to add a new clause 852.236-92, Notice to Bidders-- Additive or Deductive Bid Line Items, to provide guidance on how such bid items will be evaluated to determine the low bidder. We propose to add a new clause 852.242-70, Government Construction Contract Administration, to enumerate the responsibilities being delegated. VAAR Part 853--Forms We propose to amend the authority if part 853 to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. We also propose to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. In subpart 853.1--General, in 853.107, Obtaining forms, we propose to revise the text to provide the current website address where VA forms are obtained now: https://www.va.gov/vaforms/. The outdated address for an old VA office would be removed, as well as the outdated practice of requesting forms in hard copy directly from the agency policy office. All forms will be available online. In subpart 853.2--Prescription of Forms, we propose to revise the list of forms applicable to VAAR part 836 that are used between VA and its contractors, potential offerors or bidders, or the general public. In 853.236, Construction and architect-engineer contracts, in section 853.236-70, VA Form 6298, Architect-Engineer Fee Proposal, we are revising the number of the form and changing the location of the prescription reference from 836.606-71 to 836.7001(a). In 853.236 we also propose to add the following sections identifying forms applicable to part 836: 853.236-71, VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services) which provides the prescription reference for use of the form for ordering supplies or services, including task orders for Construction or A-E services, to include dismantling, demolition, or removal of improvements. 853.236-72, VA Form 10101, Contractor Production Report, which provides the prescription reference for use of the form or a contractor generated form containing the same type of information contained in the form. Effect of Rulemaking Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA's implementation of its legal authority and publication of the VAAR for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with FAR subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts. Executive Orders 12866, 13563 and 13771 Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review, defines ``significant regulatory action'' to mean any regulatory action that is likely to result in a rule that may: ``(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal Governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.'' VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is not a significant regulatory action under E.O. 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis. Paperwork Reduction Act This proposed rule impacts eight existing information collection requirements associated with four Office of Management and Budget (OMB) control number approvals. The proposed actions in this rule result in multiple actions affecting some of these information collections, such as: The proposed outright removal of the information collection; no change in information collection burdens although titles and number of the information collection would be slightly revised; or no change to the existing OMB control number and associated burden. The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi). [[Page 45390]] This proposed rule contains one provision constituting a collection of information at 48 CFR 836.606-71, Architect-engineer's proposal, concerning use of and prescription for VA Form 10-6298, Architect- Engineer Fee Proposal, which is proposed to be revised with updated thresholds and FAR citations, as well as an updated number to remove the ``10-'' currently part of the form number. Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new collection of information is associated with this provision as a part of this proposed rule. The information collection requirement for 836.606-71 is currently approved by OMB and has been assigned OMB control number 2900-0208. The burden of this information collection would remain unchanged. There would be no change in the information collection burden that is associated with this proposed request. However, we are proposing to amend the information collection requirement to renumber the form currently numbered and titled as VA Form 10-6298, Architect-Engineer Fee Proposal, to now read: VA Form 6298, Architect-Engineer Fee Proposal. Additionally, older dollar thresholds and FAR citations in the form would be updated to current levels and correct citations. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), OMB has approved the reporting or recordkeeping provisions that are included in the text and form under 836.606-71 cited above against the assigned OMB control number. For the requested administrative amendments to the form, as required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document. Further proposed revision to the associated OMB control number relating to other provisions of this proposed rule are identified separately in this submittal. This proposed rule also contains two provisions constituting a collection of information at 48 CFR 852.236-72, Performance of Work by the Contractor; and 48 CFR 852.236-88, Contract Changes--Supplement, that would remain unchanged. Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collection of information is associated with these provisions as a part of this proposed rule. The information collection requirements for 852.236-72 and 852.236-88 are currently approved by OMB and have been assigned OMB control number 2900-0422. The burden of these information collections would remain unchanged. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), OMB has approved the reporting or recordkeeping provisions that are included in the clause at 852.236-72 and 852.236-88 cited above and against the assigned OMB control number. Further proposed revision to the associated OMB control number relating to other information collections and provisions of this proposed rule are identified separately in this submittal. This proposed rule would impose the following amended information collection requirements to one of the four existing information collection approval numbers associated with this proposed rule. Although this action contains the following provision constituting a collection of information at 48 CFR 852.236-79, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed collection of information is associated with this provision as a part of this proposed rule. The information collection requirement for 852.236-79 is currently approved by OMB and has been assigned OMB control number 2900-0208. There would be no change in the information collection burden that is associated with this proposed request. However, we are proposing to amend the information collection requirement to revise the title and to renumber the form currently numbered and titled as VA Form 10-6131, Daily Log (Contract Progress Report--Formal Contract) to replace this form, along with replacing the number and title of VA Form 10-6001a, Supplement Contract Progress Report with one new number, title and format--VA Form 10101, Contractor Production Report. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document. The currently approved burden remains unchanged. This action also contains a provision constituting a collection of information at 48 CFR 852.236-80, however, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed collection of information is associated with this provision as a part of this proposed rule. The information collection requirement for 852.236-80 is currently approved by OMB and has been assigned OMB control number 2900-0422. The currently approved burden associated with this clause would remain unchanged. However, this information collection has been submitted to OMB to amend the information collection requirement to make a minor correction to the title of the clause, as stated in paragraph 1 of the Supporting Statement, to reflect the full name of the clause--``Subcontracts and Work Coordination'' in lieu of an abbreviated title reflected on the Supporting Statement--``Work Coordination.'' The clause was otherwise referenced correctly in the remainder of the supporting statement. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review to revise the title in paragraph 1 of the submitted statement. Notice of OMB approval for this information collection will be published in a future Federal Register document. This proposed rule would remove one of the existing information collection requirements associated with this action at 48 CFR 852.236- 84, Schedule of Work Progress. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), while the actual OMB control number will remain in existence due to other information collections on the same OMB control number that are approved and active, it discontinues the inclusion of 852.236-84 under the associated corresponding approved OMB control number, 2900-0422. As a result of this proposed rule, there would be a removal in the information collection burden that is associated with it. For 48 CFR 852.236-84, Schedule of Work Progress, as now included on OMB control number 2900- 0422, this would result in a removal of 1828.5 estimated annual burden hours and an annual cost savings of $70,800. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document. This proposed rule would remove two of the existing information collection requirements associated with this action at 48 CFR 852.236- 89, Buy American Act; and 852.236-91, Special Notes. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it discontinues the associated corresponding approved OMB control numbers, 2900-0622 and 2900-0623, respectively. As a result of this proposed rule, there would be a removal [[Page 45391]] in the information collection burden that is associated with it. For 48 CFR 852.236-89, Buy American Act, and its corresponding OMB control number 2900-0622, this would result in a removal of 22 estimated annual burden hours and an annual cost savings to respondents of $852. For 48 CFR 852.236-91, Special Notes, and its corresponding OMB control number 2900-0623, this would result in a removal of 778 estimated annual burden hours and an annual cost savings of $30,122. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted these information collection amendments to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document. Regulatory Flexibility Act This proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The overall impact of the proposed rule would be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating processes or procedures. VA estimates no cost impact to individual business would result from these rule updates. This rulemaking clarifies VA's policy regarding the contracting order of priority for Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) as a result of VA's implementation of 38 U.S.C. 8127-8128 as a result of the U.S. Supreme Court's decision in Kingdomware Technologies, Inc. vs. the United States, July 25, 2018, only as it pertains to the application of the VA Rule of Two to contracts for construction and architect-engineer contracts in accordance with Public Law 109-461 as codified at 38 U.S.C. 8127-8128. It does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. On this basis, this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601- 612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal Governments or on the private sector. List of Subjects 48 CFR Part 801 Administrative practice and procedure, Government procurement, Reporting and recordkeeping requirements. 48 CFR Part 825 Customs duties and inspection, Foreign currencies, Foreign trade, Government procurement. 48 CFR Parts 836 and 852 Government procurement, Reporting and recordkeeping requirements. 48 CFR Part 842 Accounting, Government procurement. 48 CFR Parts 846 and 853 Government procurement. Signing Authority The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on August 20, 2018, for publication. Dated: August 21, 2018. Consuela Benjamin, Regulations Development Coordinator, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. For the reasons set out in the preamble, VA proposes to amend 48 CFR parts 801, 825, 836, 842, 846, 852, and 853 as follows: PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION SYSTEM 0 1. The authority citation for part 801 continues to read as follows: Authority: 38 U.S.C. 8123; 38 U.S.C. 8153; 38 U.S.C. 8303; 40 U.S.C. 121(c); 41 U.S.C. 1702; 41 U.S.C. 1707; and 48 CFR 1.301- 1.304. Subpart 801.1--Purpose, Authority, Issuance 801.106 [Amended] 0 2. In section 801.106, under the table columns titled ``48 CFR part or section where identified and described'' and ``Current OMB control number'': 0 a. Remove the reference to 852.236-84 and add in its place 852.236-83. 0 b. Remove the reference to 852.236-89 and the corresponding OMB Control Number 2900-0622. 0 c. Remove the reference to 852.236-91 and the corresponding OMB Control Number 2900-0623. PART 825--FOREIGN ACQUISITION 0 3. The authority citation for part 825 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301- 1.304. Subpart 825.2 [Removed and Reserved] 0 4. Subpart 825.2 is removed and reserved. Subpart 825.11 [Removed and Reserved] 0 5. Subpart 825.11 is removed and reserved. PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS 0 6. The authority citation for part 836 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3), 1303(a)(2) and 1702; and 48 CFR 1.301-1.304. Subpart 836.2--Special Aspects of Contracting for Construction 0 7. Section 836.202 is revised to read as follows: 836.202 Specifications. 0 8. Section 836.202-70 is added to read as follows: 836.202-70 Specifications--use of equal products. Upon approval of the justification documentation required by FAR 11.105, Items peculiar to one manufacturer, the contracting officer shall include the clause found at 852.236-90, Restriction on Submission and Use of Equal Products, in solicitations and contracts. The contracting officer shall complete the clause by inserting the items which have been approved for restriction to a brand name. This clause also places offerors or bidders on notice that the ``brand name'' provisions of any clause or provision that may authorize the [[Page 45392]] submission of an ``equal'' product, shall not apply to the specific items listed in clause 852.236-90. 0 9. Section 836.203 is revised to read as follows: 836.203 Government estimate of construction costs. 0 10. Section 836.203-70 is added to read as follows: 836.203-70 Protection of the independent government estimate--sealed bid. For sealed bid acquisitions the contracting officer or bid custodian is not authorized to release the basis for calculating the estimate at any time. The person preparing the independent government estimate (IGE) shall-- (a) Designate the IGE as ``For Official Use Only (FOUO)''; (b) The contracting officer or bid custodian shall file a sealed copy of the IGE with the bids. (In the case of two-step acquisitions, the contracting officer or bid custodian accomplishes this during the second step); (c) After the bids are read and recorded during a Public Bid Opening, remove the ``For Official Use Only (FOUO)'' designation then read and record the estimate as if it were a bid, in the same detail as the bids; and (d) In instances where only one bid has been received, the government estimate shall not be read by the contracting officer as it may be needed to conduct negotiations with the offeror. 0 11. Section 836.204 is revised to read as follows: 836.204 Disclosure of the magnitude of construction projects. The contracting officer shall utilize the estimated price ranges defined in FAR 36.204 as further supplemented below when identifying the magnitude of a VA project in advance notices and solicitations: (f) For estimated price ranges between $1,000,000 and $5,000,000, the contracting officer shall identify the magnitude of a VA project in advance notices and solicitations in terms of the following price ranges: (1) Between $1,000,000 and $2,000,000. (2) Between $2,000,000 and $5,000,000. (g) Between $5,000,000 and $10,000,000. (h) For estimated price ranges greater than $10,000,000, the contracting officer shall identify the magnitude of a VA project in advance notices and solicitations in terms of one of the following price ranges: (1) Between $10,000,000 and $20,000,000. (2) Between $20,000,000 and $50,000,000. (3) Between $50,000,000 and $100,000,000. (4) Between $100,000,000 and $150,000,000. (5) Between $150,000,000 and $200,000,000. (6) Between $200,000,000 and $250,000,000. (7) More than $250,000,000. 836.206 [Removed] 0 12. Section 836.206 is removed. 836.209 [Removed] 0 13. Section 836.209 is removed. 836.213, 836.213-4, and 836.213-70 [Removed] 0 14. Sections 836.213, 836.213-4, and 836.213-70 are removed. Subpart 836.5--Contract Clauses 0 15. Section 836.500 is revised to read as follows: 836.500 Scope of subpart. The clauses and provisions prescribed in this subpart are set forth for use in fixed-price construction contracts in addition to those in FAR subpart 36.5. 0 16. Section 836.501 is revised to read as follows: 836.501 Performance of work by the contractor. The contracting officer shall insert the clause at 852.236-72, Performance of Work by the Contractor, in solicitations and contracts for construction that contain the FAR clause at 52.236-1, Performance of Work by the Contractor, except those awarded pursuant to subpart 819.70. When the solicitations or contracts include a section entitled ``Network Analysis System (NAS),'' the contracting officer shall use the clause with its Alternate I. 836.513 [Removed] 0 17. Section 836.513 is removed. 0 18. Section 836.521 is revised to read as follows: 836.521 Specifications and drawings for construction. The contracting officer shall insert the clause at 852.236-71, Specifications and Drawings for Construction, in solicitations and contracts for construction that include the FAR clause at 52.236-21, Specifications and Drawings for Construction. 836.570 [Removed] 0 19. Section 836.570 is removed. 836.571 [Removed] 0 20. Section 836.571 is removed. 836.572 [Removed] 0 21. Section 836.572 is removed. 0 22. Section 836.573 is revised to read as follows: 836.573 Contractor production report. The contracting officer shall insert the clause at 852.236-79, Contractor Production Report, in solicitations and contracts for construction expected to exceed the simplified acquisition threshold. The contracting officer may, when in the best interest of the Government, insert the clause in solicitations and contracts for construction when the contract amount is expected to be at or below the simplified acquisition threshold. 0 23. Section 836.574 is revised to read as follows: 836.574 Subcontracts and work coordination. The contracting officer shall insert the clause at 852.236-80, Subcontracts and Work Coordination, in invitations for bids and contracts for construction expected to exceed the micro-purchase threshold for construction. When the solicitations or contracts are for new construction work with complex mechanical-electrical work, the contracting officer may use the clause with its Alternate I. 836.575 [Removed] 0 24. Section 836.575 is removed. 836.576 [Removed] 0 25. Section 836.576 is removed. 836.577 [Removed] 0 26. Section 836.577 is removed. 836.579 [Removed] 0 27. Section 836.579 is removed. 0 28. Section 836.580 is added to read as follows: 836.580 Notice to bidders--additive or deductive bid line items. The contracting officer may include the provision 852.236-92, Notice to Bidders--Additive or Deductive Bid Line Items, in invitations for bids when the contracting officer determines that funds may not be available for all the desired construction features at contract award. Subpart 836.6--Architect-Engineer Services 836.602, 836.602-1, 836.602-2, 836.602-4, and 836.602-5 [Removed] 0 29. Sections 836.602, 836.602-1, 836.602-2, 836.602-4, and 836.602-5 are removed. 0 30. Section 836.603 is revised to read as follows: [[Page 45393]] 836.603 Collecting data on and appraising firms' qualifications. The Associate Executive Director, Office of Facilities Engineering, for Central Office; the Director, Office of Construction Management, for National Cemetery Administration; the Senior Executive Service for Administration and Facilities for Veterans Benefits Administration; and the Chief, Engineering Service, for field facilities, are responsible for collecting Standard Forms 330 and maintaining a data file on architect-engineer qualifications. 0 31. Sections 836.606, 836.606-70, and 836.606-71 are revised to read as follows: 836.606 Negotiations. 836.606-70 Architect-engineer firms' proposal. (a) When the contract price is estimated to be $50,000 or more, the contracting officer shall use VA Form 6298, Architect-Engineer Fee Proposal, to obtain the proposal and supporting cost data from the proposed contractor and subcontractor in the negotiation of an A-E contract for design services. (b) In obtaining A-E services for research study, seismic study, master planning study, construction management and other related services contracts, the contracting officer shall use VA Form 6298, supplemented or modified as needed for the particular project type. 836.606-71 Application of 6 percent architect-engineer fee limitation. (a) The production and delivery of designs, plans, drawings, and specifications shall not exceed 6 percent of the estimated cost of construction. Other A-E fees are not included in this 6 percent. Such fees are delineated in paragraph (c) of this section. (b) The 6 percent limit also applies to contract modifications, including modifications involving: (1) Work not initially included in the contract. Apply the 6 percent limit to the revised total estimated construction cost. (2) Redesign. Apply the 6 percent limit as follows-- (i) Add the estimated construction cost of the redesign features to the original estimated construction cost; (ii) Add the contract cost for the original design to the contract cost for redesign; and, (iii) Divide the total contract design cost by the total estimated construction cost. The resulting percentage may not exceed the 6 percent statutory limitation. (c) The 6 percent fee limitation does not apply to the following architect or engineer services: (1) Investigative services including but not limited to-- (i) Determination of program requirements, including schematic or preliminary plans and estimates; (ii) Determination of feasibility of proposed project; (iii) Preparation of measured drawings of existing facility; (iv) Subsurface investigation; (v) Structural, electrical, and mechanical investigation of existing facility; (vi) Surveys: topographic, boundary, utilities, etc.; (vii) Environmental services; (viii) Geo-Tech studies; and (ix) Feasibility studies. (2) Special consultant services that are not normally available in organizations of architects or engineers and that are not specifically applied to the actual preparation of working drawings or specifications of the project for which the service are required. (3) Other-- (i) Reproduction of approved designs through models, color renderings, photographs, or other presentation media; (ii) Travel and per diem allowances other than those required for the development and review of working drawings and specifications; (iii) Supervision or inspection of construction, review of shop drawings or samples, and other services performed during the construction phase; (iv) All other services that are not an integral part of the production and delivery of plans, designs, and specifications; and, (v) The cost of reproducing drawings and specifications for bidding and their distribution to prospective bidders and plan file rooms. 836.606-72 and 836.606-73 [Removed] 0 32. Sections 836.606-72 and 836.606-73 are removed. 0 33. Subpart 836.70 is added to read as follows: Subpart 836.70--Unique Forms for Contracting for Construction, Architect-Engineer Services, and Dismantling, Demolition, or Removal of Improvements 836.7000 Scope of subpart. This subpart sets forth requirements for the use of VA unique forms, as prescribed in this part, for contracting for construction, architect-engineer services, or dismantling, demolition, or removal of improvements. See part 853. 836.7001 Unique construction and architect-engineer services forms. Contracting officers may use the following forms, as prescribed in this part or subpart, for construction, architect-engineer services or dismantling, demolition, or removal of improvements contracts as set forth below and in the referenced prescriptions: (a) VA Form 6298, Architect-Engineer Fee Proposal (see 853.236-70). VA Form 6298, Architect-Engineer Fee Proposal, shall be used as prescribed in 836.606-70. (b) VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services) (see 853.236-71). VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services), may be used for ordering supplies or services, including task orders for Construction or A-E services, to include dismantling, demolition, or removal of improvements. (c) VA Form 10101, Contractor Production Report (see 853.236-72). Contractors may use VA Form 10101, Contractor Production Report or a contractor generated form containing the same type of information contained in the form, as required by 836.573 which prescribes the clause at 852.236-79, Contractor Production Report. PART 842--CONTRACT ADMINISTRATION AND AUDIT SERVICES 0 34. The authority citation for part 842 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301- 1.304. 0 35. Subpart 842.2 is added to read as follows: Subpart 842.2--Contract Administration Services 842.271 Contract clause for Government construction contract administration. The contracting officer shall insert the clause at 852.242-70, Government Construction Contract Administration, in solicitations and contracts for construction expected to exceed the micro-purchase threshold for construction. PART 846--QUALITY ASSURANCE 0 36. The authority citation for part 846 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304. 846.312 [Removed] 0 37. Section 846.312 is removed. [[Page 45394]] PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 38. The authority citation for part 852 continues to read as follows: Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301- 1.304. 0 39. Section 852.236-71 is revised to read as follows: 852.236-71 Specifications and Drawings for Construction. As prescribed in 836.521, insert the following clause: Specifications and Drawings for Construction (Date) The clause entitled ``Specifications and Drawings for Construction'' in FAR 52.236-21 is supplemented as follows: (a) The Contracting Officer's interpretation of the drawings and specifications will be final, subject to the Disputes clause. (b) The Contractor shall-- (1) Check all drawings and specifications furnished immediately upon receipt; (2) Compare all drawings and the specifications, and verify the figures before laying out the work; (3) Promptly notify the Contracting Officer of any discrepancies; (4) Be responsible for any errors that might have been avoided by complying with this paragraph (b); and (5) Reproduce and print contract drawings and specifications as needed. (c) In general-- (1) Drawings of greater detail shall govern over drawings of lesser detail unless specifically noted otherwise; and (2) Figures and numerical quantities noted on drawings govern over scale measurements. (d) Omissions from the drawings or specifications or the misdescription of details of work that are manifestly necessary to carry out the intent of the drawings and specifications, or that are customarily performed, shall not relieve the Contractor from performing such omitted or misdescribed details of the work. The Contractor shall perform such details as if fully and correctly set forth and described in the drawings and specifications. (e) The work shall conform to the specifications and the contract drawings identified on the following index of drawings: Title File Drawing No. (End of clause) 0 40. Section 852.236-72 is revised to read as follows: 852.236-72 Performance of Work by the Contractor. As prescribed in 836.501, insert the following clause: Performance of Work by the Contractor (Date) (a) In accordance with FAR 52.236-1, the contract work accomplished on the site by laborers, mechanics, and foreman/ superintendent on the contractor's payroll and under their direct supervision shall be used in establishing the percent of work to be performed by the Contractor. Cost of material and equipment installed by such labor may be included. The work by the contractor's executive, administrative and clerical forces shall be excluded in establishing compliance with the requirements of this clause. (b) The Contractor shall submit, simultaneously with the schedule of costs required by the Payments under Fixed-Price Construction Contracts clause of the contract, a statement designating the portions of contract work to be performed with the contractor's own forces. The approved schedule of costs will be used in determining the value of a work activity/event, or portions thereof, of the work for the purpose of this article. (c) Changes to established activity/event identifiers or responsibility codes for Contractor activities shall not be made without approval from the Contracting Officer. (d) In the event the Contractor fails to comply with FAR 52.236- 1, Performance of Work by the Contractor, the Contracting Officer will withhold retention in the amount of 15% of the value of any work activity/element being invoiced that was not authorized by the Contracting Officer to be performed by someone other than the prime contractor's own workforce. (End of clause) Alternate I (DATE). For requirements which include a Network Analysis System (NAS), substitute the following paragraph (b) for paragraph (b) of the basic clause: (b) The Contractor shall submit, simultaneously with the cost per activity of the construction schedule required by Section 01310 or 01311, NETWORK ANALYSIS SYSTEM, a responsibility code for all activities of the network for which the contractor's forces will perform the work. The cost of these activities will be used in determining the portions of the total contract work to be executed by the contractor's forces for the purpose of this article. 852.236-74 [Removed and Reserved] 0 41. Section 852.236-74 is removed and reserved. 852.236-76 [Removed and Reserved] 0 42. Section 852.236-76 is removed and reserved. 852.236-77 [Removed and Reserved] 0 43. Section 852.236-77 is removed and reserved. 852.236-78 [Removed and Reserved] 0 44. Section 852.236-78 is removed and reserved. 0 45. Section 852.236-79 is revised to read as follows: 852.236-79 Contractor Production Report. As prescribed in 836.573, insert the following clause: Contractor Production Report (Date) (a) The Contractor shall furnish to the resident engineer, for each workday, a consolidated report for the preceding workday. Reporting shall begin from date of mobilization until the date of final acceptance except for authorized holidays. VA Form 10101, Contractor Production Report, or a Contractor generated form containing the same type of information shall be signed, dated and submitted by the Contractor superintendent. (b) Each report shall include and specifically identify at least one safety topic germane to the jobsite that day. (End of clause) 0 46. Section 852.236-80 is revised to read as follows: 852.236-80 Subcontracts and Work Coordination. As prescribed in 836.574, insert the following clause: Subcontracts and Work Coordination (Date) (a) Nothing contained in this contract shall be construed as creating any contractual relationship between any subcontractor and the Government. Divisions or sections of specifications are not intended to control the Contractor in dividing work among subcontractors, or to limit work performed by any trade. (b) The Contractor shall be responsible to the Government for acts and omissions of his/her own employees, and of the subcontractors and their employees. The Contractor shall also be responsible for coordination of the work of the trades, subcontractors, and material suppliers. (c) The Government or its representatives will not undertake to settle any differences between the Contractor and subcontractors or between subcontractors. (d) The Government reserves the right to refuse to permit employment on the work, or require dismissal from the work, of any subcontractor or subcontractor employee who, by reason of previous unsatisfactory work on Department of Veterans Affairs projects or for any other reason, is considered by the Contracting Officer to be incompetent, careless, or otherwise objectionable. (End of clause) Alternate I (DATE). For new construction work with complex mechanical-electrical work, the following paragraph relating to work coordination may be substituted for paragraph (b) of the basic clause: (b) The Contractor shall be responsible to the Government for acts and omissions of his/her own employees, and subcontractors and their employees. The Contractor shall also be responsible for coordination of the work of the trades, subcontractors, and material suppliers. The Contractor shall, in advance of the work, prepare coordination drawings showing the location of openings [[Page 45395]] through slabs, the pipe sleeves and hanger inserts, as well as the location and elevation of utility lines, including, but not limited to, conveyor systems, pneumatic tubes, ducts, and conduits and pipes 2 inches and larger in diameter. These drawings, including plans, elevations, and sections as appropriate, shall clearly show the manner in which the utilities fit into the available space and relate to each other and to existing building elements. Drawings shall be of appropriate scale to satisfy the previously stated purposes, but not smaller than \3\2044;8 -inch scale. Drawings may be composite (with distinctive colors for the various trades) or may be separate but fully coordinated drawings (such as sepias or photographic paper reproducibles) of the same scale. Separate drawings shall depict identical building areas or sections and shall be capable of being overlaid in any combination. The submitted drawings for a given area of the project shall show the work of all trades that will be involved in that particular area. Six complete composite drawings or six complete sets of separate reproducible drawings shall be received by the Government not less than 20 days prior to the scheduled start of the work in the area illustrated by the drawings, for the purpose of showing the Contractor's planned methods of installation. The objectives of such drawings are to promote carefully planned work sequence and proper trade coordination, in order to assure the expeditious solutions of problems and the installation of lines and equipment as contemplated by the contract documents while avoiding or minimizing additional costs to the Contractor and to the Government. In the event the Contractor, in coordinating the various installations and in planning the method of installation, finds a conflict in location or elevation of any of the utilities with themselves, with structural items or with other construction items, he/she shall bring this conflict to the attention of the Contracting Officer immediately. In doing so, the Contractor shall explain the proposed method of solving the problem or shall request instructions as to how to proceed if adjustments beyond those of usual trades' coordination are necessary. Utilities installation work will not proceed in any area prior to the submission and completion of the Government review of the coordinated drawings for that area, nor in any area in which conflicts are disclosed by the coordination drawings, until the conflicts have been corrected to the satisfaction of the Contracting Officer. It is the responsibility of the Contractor to submit the required drawings in a timely manner consistent with the requirements to complete the work covered by this contract within the prescribed contract time. 852.236-84 [Removed and Reserved] 0 47. Section 852.236-84 is removed and reserved. 852.236-85 [Removed and Reserved] 0 48. Section 852.236-85 is removed and reserved. 852.236-86 [Removed and Reserved] 0 49. Section 852.236-86 is removed and reserved. 852.236-87 [Removed and Reserved] 0 50. Section 852.236-87 is removed and reserved. 852.236-89 [Removed and Reserved] 0 51. Section 852.236-89 is removed and reserved. 0 52. Section 852.236-90 is revised to read as follows: 852.236-90 Restriction on Submission and Use of Equal Products. As prescribed in 836.202-70, insert the following clause in solicitations and contracts when it is determined that only one product will meet the Government's minimum needs and the submission of ``equal'' products is not permitted: Restriction on Submission and Use of Equal Products (Date) (a) This clause applies to the following items: [Contracting Officer fill-in] ----------------------------------------------------------------------- ----------------------------------------------------------------------- ----------------------------------------------------------------------- (b) Notwithstanding the ``Material and Workmanship'' clause of this contract, FAR 52.236-5(a), nor any other clause or provision, only brand name products for the items listed above will be authorized for use on this contract. (End of clause) 852.236-91 [Removed and Reserved] 0 53. Section 852.236-91 is removed and reserved. 0 54. Section 852.236-92 is added to read as follows: 852.236-92 Notice to Bidders--Additive or Deductive Bid Line Items. As prescribed in 836.580, insert the following provision: Notice to Bidders--Additive or Deductive Bid Line Items (Date) (a) Additive or deductive line items in the Schedule shall be evaluated to determine the low offeror and the items to be awarded. The evaluation shall be made as follows-- (1) Prior to the opening of bids, the Government will determine the amount of funds available for the project. (2) The low bid shall be the Bidder that-- (i) Is otherwise eligible for award; and (ii) Offers the lowest aggregate amount for the first or base line item, plus or minus (in the order stated in the list of priorities in the bid schedule) those additive or deductive line items that provide the most features within the funds determined available. (3) All bids shall be evaluated on the basis of the same additive or deductive line items. (i) If adding another item from the bid schedule list of priorities would make the award exceed the available funds for all offerors, the Contracting Officer will skip that item and go to the next item from the bid schedule of priorities; and (ii) Add that next item if an award may be made that includes that line item and is within the available funds. (b) The Contracting Officer will use the list of priorities in the bid Schedule only to determine the low offeror. After determining the low offeror, an award may be made on any combination of items if-- (1) It is in the best interest of the Government; (2) Funds are available at the time of award; and (3) The low offeror's price for the combination to be awarded is less than the price offered by any other responsive, responsible offeror. (c) Example. ``The amount available is $100,000. Offeror A's base bid and four additives (in the order stated in the list of priorities in the bid Schedule) are $85,000, $10,000, $8,000, $6,000, and $4,000. Offeror B's base bid and four additives are $80,000, $16,000, $9,000, $7,000, and $4,000. Offeror A is the low offeror. The aggregate amount of offeror A's bid for purposes of award would be $99,000, which includes a base bid plus the first and fourth additives. The second and third additives were skipped because each of them would cause the aggregate bid to exceed $100,000.'' (End of provision) 0 55. Section 852.242-70 is added as follows: 852.242-70 Government Construction Contract Administration. As prescribed in 842.271, insert the following clause. This is a fill-in clause. Government Construction Contract Administration (Date) (a) Contract administration functions set forth in FAR 42.302 are hereby delegated to: [Insert name and office address of Contracting Officer] (b) The work will be under the direction of a Department of Veterans Affairs Contracting Officer, who may designate another VA employee to act as resident engineer at the construction site. (c) Except as provided below, the resident engineer's directions will not conflict with or change contract requirements. Within the limits of any specific authority delegated by the Contracting Officer, the resident engineer may, by written direction, make changes in the work. The Contractor shall be advised of the extent of such authority prior to execution of any work under the contract. (d) The Contracting Officer identified in paragraph (a) of this clause may further delegate the responsibilities below to the following warranted personnel on site: [Insert name and office address of individual with limited authority] (1) Conduct post-award orientation conferences. (2) Issue administrative changes, correcting errors or omissions in typing, Contractor address, facility or activity code, remittance [[Page 45396]] address, computations which do not required additional contract funds, and other such changes (see FAR 43.101). (3) For actions not to exceed $ (insert dollar amount) negotiate and execute supplemental agreements incorporating Contractor proposals resulting from change orders issued under the Changes clause. (4) Negotiate and execute supplemental agreements changing contract delivery schedules where the time extension does not exceed (insert number) calendar days. (End of clause) PART 853--FORMS 0 56. The authority citation for part 853 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301- 1.304. Subpart 853.1--General 0 57. Section 853.107 is revised to read as follows: 853.107 Obtaining forms. VA forms may be obtained online at https://www.va.gov/vaforms/ or upon request from any VA contracting office. Subpart 853.2--Prescription of Forms 0 58. Sections 853.236 and 853.236-70 are revised to read as follows: 853.236 Construction and architect-engineer contracts. 853.236-70 VA Form 6298, Architect-Engineer Fee Proposal (see 836.7001(a)). 0 59. Sections 853.236-71 and 853.236.72 are added to read as follows: 853.236-71 VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services) (see 836.7001(b)). 853.236-72 VA Form 10101, Contractor Production Report (see 836.7001(c)). [FR Doc. 2018-18309 Filed 9-6-18; 8:45 am] BILLING CODE 8320-01-P
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(End of clause) the ten-day notice required by paragraph (b) See 837.110–70(a) for clause
■ 54. Section 852.237–78 is added to (a)(2) of the Default clause if— 852.237–74 Non-discrimination in
(a) The Contractor, through circumstances Service Delivery.
read as follows:
reasonably within its control or that of its
employees, performs any act under or in [FR Doc. 2018–18310 Filed 9–6–18; 8:45 am]
852.237–78 Performance and Delivery.
connection with this contract, or fails in the BILLING CODE 8320–01–P
As prescribed in 837.7001(b)(2), insert performance of any service under this
the following clause: contract and the act or failures may
Performance and Delivery (Date) reasonably be considered to reflect discredit DEPARTMENT OF VETERANS
upon the Department of Veteran Affairs in AFFAIRS
(a) The Contractor shall furnish the fulfilling its responsibility for proper care of
material ordered and perform the services remains; 48 CFR Parts 801, 825, 836, 842, 846,
specified as promptly as possible, but not (b) The Contractor, or its employees, 852 and 853
later than 36 hours after receiving solicits relatives or friends of the deceased to
notification to remove the remains, excluding purchase supplies or services not under this RIN 2900–AQ18
the time necessary for the Government to contract. (The Contractor may furnish
inspect and check results of preparation. supplies or arrange for services not under VA Acquisition Regulation:
(b) The Government may, at no additional this contract, only if representatives of the Construction and Architect-Engineer
charge, require the Contractor to hold the deceased voluntarily request, select, and pay Contracts
remains for an additional period not to for them.);
exceed 72 hours from the time the remains (c) The services or any part of the services AGENCY: Department of Veterans Affairs.
are casketed and final inspection is are performed by anyone other than the ACTION: Proposed rule.
completed. Contractor or the Contractor’s employees
without the written authorization of the SUMMARY: The Department of Veterans
(End of clause) Affairs (VA) is proposing to amend and
Contracting Officer;
■ 55. Section 852.237–79 is added to (d) The Contractor refuses to perform the update its VA Acquisition Regulation
read as follows: services required for any particular remains; (VAAR) in phased increments to revise
or or remove any policy superseded by
852.237–79 Subcontracting. (e) The Contractor mentions or otherwise changes in the Federal Acquisition
As prescribed in 837.7001(b)(3), insert uses this contract in its advertising in any Regulation (FAR), to remove procedural
the following clause: way.
guidance internal to VA into the VA
Subcontracting (Date) Acquisition Manual (VAAM), and to
(End of clause)
The Contractor shall not subcontract any incorporate any new agency specific
work under this contract without the 852.271–70 [Removed and Reserved] regulations or policies. These changes
Contracting Officer’s written approval. This seek to streamline and align the VAAR
■ 58. Section 852.271–70 is removed with the FAR and remove outdated and
clause does not apply to contracts of
employment between the Contractor and its and reserved. duplicative requirements and reduce
personnel. burden on contractors. The VAAM
PART 871—LOAN GUARANTY AND
(End of clause) VOCATIONAL REHABILITATION AND incorporates portions of the removed
EMPLOYMENT PROGRAMS VAAR as well as other internal agency
■ 56. Section 852.237–80 is added to
acquisition policy. VA will rewrite
read as follows:
■ 59. The authority citation for part 871 certain parts of the VAAR and VAAM,
852.237–80 Health Department and is revised to read as follows: and as VAAR parts are rewritten, will
Transport Permits. publish them in the Federal Register.
Authority: 40 U.S.C. 121(c); 41 U.S.C. VA will combine related topics, as
As prescribed in 837.7001(b)(4), insert 1121(c)(3); 41 U.S.C. 1702; and 48 CFR
the following clause: 1.301–1.304.
appropriate. In particular, this
rulemaking revises VAAR concerning
Health Department and Transport Construction and Architect-Engineer
Permits (Date) Subpart 871.2—Vocational
Rehabilitation and Employment Contracts, as well as affected parts
The Contractor shall meet all State and Service covering the Department of Veterans
local licensing requirements and obtain and Affairs Acquisition Regulations System,
furnish all necessary health department and ■ 60. Section 871.212 is revised to read Foreign Acquisition, Contract
shipping permits at no additional cost to the as follows: Administration and Audit Services,
Government. The Contractor shall ensure that Quality Assurance, Solicitation
all necessary health department permits are 871.212 Contract clauses. Provisions and Contract Clauses, and
in order for disposition of the remains.
(a) Contracting officers shall use the Forms.
(End of clause) following clauses, as appropriate, in DATES: Comments must be received on
■ 57. Section 852.249–70 is added to solicitations and contracts for vocational or before November 6, 2018 to be
read as follows: rehabilitation and employment services considered in the formulation of the
as they pertain to training and final rule.
852.249–70 Termination for Default— rehabilitation services and contracts for
Supplement for Mortuary Services. ADDRESSES: Written comments may be
counseling services: submitted through
As prescribed in 849.504–70, insert
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the following clause: (1) 852.271–72 Time Spent by www.Regulations.gov; by mail or hand-
Counselee in Counseling Process. delivery to Director, Regulation Policy
Termination for Default—Supplement and Management (00REG), Department
(2) 852.271–73 Use and Publication
for Mortuary Services (Date) of Veterans Affairs, 810 Vermont
of Counseling Results.
The clause entitled ‘‘Default’’ in FAR Avenue NW, Room 1063B, Washington,
(3) 852.271–74 Inspection. DC 20420; or by fax to (202) 273–9026
52.249–8, is supplemented as follows:
The Contracting Officer may terminate this (4) 852.271–75 Extension of Contract (this is not a toll-free number).
contract for default by written notice without Period. Comments should indicate that they are
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in the information collection burden Unfunded Mandates 1702; 41 U.S.C. 1707; and 48 CFR 1.301–
that is associated with it. For 48 CFR 1.304.
The Unfunded Mandates Reform Act
852.236–89, Buy American Act, and its of 1995 requires, at 2 U.S.C. 1532, that Subpart 801.1—Purpose, Authority,
corresponding OMB control number agencies prepare an assessment of Issuance
2900–0622, this would result in a anticipated costs and benefits before
removal of 22 estimated annual burden issuing any rule that may result in the 801.106 [Amended]
hours and an annual cost savings to expenditure by State, local, and tribal ■ 2. In section 801.106, under the table
respondents of $852. For 48 CFR Governments, in the aggregate, or by the columns titled ‘‘48 CFR part or section
852.236–91, Special Notes, and its private sector, of $100 million or more where identified and described’’ and
corresponding OMB control number (adjusted annually for inflation) in any ‘‘Current OMB control number’’:
2900–0623, this would result in a one year. This proposed rule would ■ a. Remove the reference to 852.236–84
removal of 778 estimated annual burden have no such effect on State, local, and and add in its place 852.236–83.
hours and an annual cost savings of tribal Governments or on the private ■ b. Remove the reference to 852.236–89
$30,122. As required by the Paperwork sector. and the corresponding OMB Control
Reduction Act of 1995 (at 44 U.S.C. Number 2900–0622.
List of Subjects
3507(d)), VA has submitted these ■ c. Remove the reference to 852.236–91
information collection amendments to 48 CFR Part 801 and the corresponding OMB Control
OMB for its review. Notice of OMB Administrative practice and Number 2900–0623.
approval for this information collection procedure, Government procurement,
will be published in a future Federal PART 825—FOREIGN ACQUISITION
Reporting and recordkeeping
Register document. requirements. ■ 3. The authority citation for part 825
Regulatory Flexibility Act 48 CFR Part 825 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C.
This proposed rule would not have a Customs duties and inspection,
1702; and 48 CFR 1.301–1.304.
significant economic impact on a Foreign currencies, Foreign trade,
substantial number of small entities as Government procurement. Subpart 825.2 [Removed and Reserved]
they are defined in the Regulatory 48 CFR Parts 836 and 852 ■ 4. Subpart 825.2 is removed and
Flexibility Act, 5 U.S.C. 601–612. The reserved.
overall impact of the proposed rule Government procurement, Reporting
and recordkeeping requirements. Subpart 825.11 [Removed and
would be of benefit to small businesses
owned by Veterans or service-disabled 48 CFR Part 842 Reserved]
Veterans as the VAAR is being updated Accounting, Government ■ 5. Subpart 825.11 is removed and
to remove extraneous procedural procurement. reserved.
information that applies only to VA’s
internal operating processes or 48 CFR Parts 846 and 853 PART 836—CONSTRUCTION AND
procedures. VA estimates no cost Government procurement. ARCHITECT-ENGINEER CONTRACTS
impact to individual business would ■ 6. The authority citation for part 836
result from these rule updates. This Signing Authority
is revised to read as follows:
rulemaking clarifies VA’s policy The Secretary of Veterans Affairs
approved this document and authorized Authority: 40 U.S.C. 121(c); 41 U.S.C.
regarding the contracting order of
1121(c)(3), 1303(a)(2) and 1702; and 48 CFR
priority for Service-Disabled Veteran- the undersigned to sign and submit the 1.301–1.304.
Owned Small Businesses (SDVOSBs) document to the Office of the Federal
and Veteran-Owned Small Businesses Register for publication electronically as Subpart 836.2—Special Aspects of
(VOSBs) as a result of VA’s an official document of the Department Contracting for Construction
implementation of 38 U.S.C. 8127–8128 of Veterans Affairs. Robert L. Wilkie,
as a result of the U.S. Supreme Court’s Secretary, Department of Veterans ■ 7. Section 836.202 is revised to read
decision in Kingdomware Technologies, Affairs, approved this document on as follows:
Inc. vs. the United States, July 25, 2018, August 20, 2018, for publication. 836.202 Specifications.
only as it pertains to the application of Dated: August 21, 2018. ■ 8. Section 836.202–70 is added to read
the VA Rule of Two to contracts for Consuela Benjamin, as follows:
construction and architect-engineer Regulations Development Coordinator, Office
contracts in accordance with Public Law of Regulation Policy & Management, Office 836.202–70 Specifications—use of equal
109–461 as codified at 38 U.S.C. 8127– of the Secretary, Department of Veterans products.
8128. It does not have an economic Affairs. Upon approval of the justification
impact to individual businesses, and For the reasons set out in the documentation required by FAR 11.105,
there are no increased or decreased preamble, VA proposes to amend 48 Items peculiar to one manufacturer, the
costs to small business entities. On this CFR parts 801, 825, 836, 842, 846, 852, contracting officer shall include the
basis, this proposed rule would not have and 853 as follows: clause found at 852.236–90, Restriction
a significant economic impact on a on Submission and Use of Equal
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substantial number of small entities as PART 801—DEPARTMENT OF Products, in solicitations and contracts.
they are defined in the Regulatory VETERANS AFFAIRS ACQUISITION The contracting officer shall complete
Flexibility Act, 5 U.S.C. 601–612. REGULATION SYSTEM the clause by inserting the items which
Therefore, under 5 U.S.C. 605(b), this have been approved for restriction to a
regulatory action is exempt from the ■ 1. The authority citation for part 801 brand name. This clause also places
initial and final regulatory flexibility continues to read as follows: offerors or bidders on notice that the
analysis requirements of sections 603 Authority: 38 U.S.C. 8123; 38 U.S.C. 8153; ‘‘brand name’’ provisions of any clause
and 604. 38 U.S.C. 8303; 40 U.S.C. 121(c); 41 U.S.C. or provision that may authorize the
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submission of an ‘‘equal’’ product, shall (2) Between $20,000,000 and 836.572 [Removed]
not apply to the specific items listed in $50,000,000. ■ 21. Section 836.572 is removed.
clause 852.236–90. (3) Between $50,000,000 and ■ 22. Section 836.573 is revised to read
■ 9. Section 836.203 is revised to read $100,000,000. as follows:
as follows: (4) Between $100,000,000 and
$150,000,000. 836.573 Contractor production report.
836.203 Government estimate of (5) Between $150,000,000 and The contracting officer shall insert the
construction costs.
$200,000,000. clause at 852.236–79, Contractor
■ 10. Section 836.203–70 is added to (6) Between $200,000,000 and Production Report, in solicitations and
read as follows: $250,000,000. contracts for construction expected to
836.203–70 Protection of the independent (7) More than $250,000,000. exceed the simplified acquisition
government estimate—sealed bid. threshold. The contracting officer may,
836.206 [Removed]
when in the best interest of the
For sealed bid acquisitions the ■ 12. Section 836.206 is removed. Government, insert the clause in
contracting officer or bid custodian is
solicitations and contracts for
not authorized to release the basis for 836.209 [Removed]
construction when the contract amount
calculating the estimate at any time. The ■ 13. Section 836.209 is removed. is expected to be at or below the
person preparing the independent
836.213, 836.213–4, and 836.213–70 simplified acquisition threshold.
government estimate (IGE) shall—
[Removed] ■ 23. Section 836.574 is revised to read
(a) Designate the IGE as ‘‘For Official
■ 14. Sections 836.213, 836.213–4, and as follows:
Use Only (FOUO)’’;
(b) The contracting officer or bid 836.213–70 are removed. 836.574 Subcontracts and work
custodian shall file a sealed copy of the coordination.
IGE with the bids. (In the case of two- Subpart 836.5—Contract Clauses
The contracting officer shall insert the
step acquisitions, the contracting officer ■ 15. Section 836.500 is revised to read clause at 852.236–80, Subcontracts and
or bid custodian accomplishes this as follows: Work Coordination, in invitations for
during the second step); bids and contracts for construction
(c) After the bids are read and 836.500 Scope of subpart.
expected to exceed the micro-purchase
recorded during a Public Bid Opening, The clauses and provisions prescribed threshold for construction. When the
remove the ‘‘For Official Use Only in this subpart are set forth for use in solicitations or contracts are for new
(FOUO)’’ designation then read and fixed-price construction contracts in construction work with complex
record the estimate as if it were a bid, addition to those in FAR subpart 36.5. mechanical-electrical work, the
in the same detail as the bids; and ■ 16. Section 836.501 is revised to read contracting officer may use the clause
(d) In instances where only one bid as follows: with its Alternate I.
has been received, the government
836.501 Performance of work by the 836.575 [Removed]
estimate shall not be read by the contractor.
contracting officer as it may be needed ■ 24. Section 836.575 is removed.
to conduct negotiations with the offeror. The contracting officer shall insert the
■ 11. Section 836.204 is revised to read
clause at 852.236–72, Performance of 836.576 [Removed]
as follows: Work by the Contractor, in solicitations ■ 25. Section 836.576 is removed.
and contracts for construction that
836.204 Disclosure of the magnitude of contain the FAR clause at 52.236–1, 836.577 [Removed]
construction projects. Performance of Work by the Contractor, ■ 26. Section 836.577 is removed.
The contracting officer shall utilize except those awarded pursuant to
subpart 819.70. When the solicitations 836.579 [Removed]
the estimated price ranges defined in
FAR 36.204 as further supplemented or contracts include a section entitled ■ 27. Section 836.579 is removed.
below when identifying the magnitude ‘‘Network Analysis System (NAS),’’ the ■ 28. Section 836.580 is added to read
of a VA project in advance notices and contracting officer shall use the clause as follows:
solicitations: with its Alternate I.
836.580 Notice to bidders—additive or
(f) For estimated price ranges between deductive bid line items.
836.513 [Removed]
$1,000,000 and $5,000,000, the
■ 17. Section 836.513 is removed. The contracting officer may include
contracting officer shall identify the
■ 18. Section 836.521 is revised to read the provision 852.236–92, Notice to
magnitude of a VA project in advance
as follows: Bidders—Additive or Deductive Bid
notices and solicitations in terms of the
Line Items, in invitations for bids when
following price ranges: 836.521 Specifications and drawings for the contracting officer determines that
(1) Between $1,000,000 and construction. funds may not be available for all the
$2,000,000. The contracting officer shall insert the desired construction features at contract
(2) Between $2,000,000 and clause at 852.236–71, Specifications and award.
$5,000,000. Drawings for Construction, in
(g) Between $5,000,000 and solicitations and contracts for Subpart 836.6—Architect-Engineer
$10,000,000. construction that include the FAR Services
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(h) For estimated price ranges greater clause at 52.236–21, Specifications and
than $10,000,000, the contracting officer 836.602, 836.602–1, 836.602–2, 836.602–4,
Drawings for Construction. and 836.602–5 [Removed]
shall identify the magnitude of a VA
project in advance notices and 836.570 [Removed] ■ 29. Sections 836.602, 836.602–1,
solicitations in terms of one of the ■ 19. Section 836.570 is removed. 836.602–2, 836.602–4, and 836.602–5
following price ranges: are removed.
(1) Between $10,000,000 and 836.571 [Removed] ■ 30. Section 836.603 is revised to read
$20,000,000. ■ 20. Section 836.571 is removed. as follows:
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836.603 Collecting data on and appraising (c) The 6 percent fee limitation does 836.7001 Unique construction and
firms’ qualifications. not apply to the following architect or architect-engineer services forms.
The Associate Executive Director, engineer services: Contracting officers may use the
Office of Facilities Engineering, for (1) Investigative services including following forms, as prescribed in this
Central Office; the Director, Office of but not limited to— part or subpart, for construction,
Construction Management, for National (i) Determination of program architect-engineer services or
Cemetery Administration; the Senior requirements, including schematic or dismantling, demolition, or removal of
Executive Service for Administration preliminary plans and estimates; improvements contracts as set forth
and Facilities for Veterans Benefits (ii) Determination of feasibility of below and in the referenced
Administration; and the Chief, proposed project; prescriptions:
Engineering Service, for field facilities, (iii) Preparation of measured drawings (a) VA Form 6298, Architect-Engineer
are responsible for collecting Standard of existing facility; Fee Proposal (see 853.236–70).
Forms 330 and maintaining a data file (iv) Subsurface investigation; VA Form 6298, Architect-Engineer
(v) Structural, electrical, and Fee Proposal, shall be used as
on architect-engineer qualifications.
mechanical investigation of existing prescribed in 836.606–70.
■ 31. Sections 836.606, 836.606–70, and (b) VA Form 2138, Order for Supplies
facility;
836.606–71 are revised to read as (vi) Surveys: topographic, boundary, or Services (Including Task Orders for
follows: utilities, etc.; Construction or A–E Services) (see
836.606 Negotiations. (vii) Environmental services; 853.236–71). VA Form 2138, Order for
(viii) Geo-Tech studies; and Supplies or Services (Including Task
836.606–70 Architect-engineer firms’ (ix) Feasibility studies. Orders for Construction or A–E
proposal. (2) Special consultant services that are Services), may be used for ordering
(a) When the contract price is not normally available in organizations supplies or services, including task
estimated to be $50,000 or more, the of architects or engineers and that are orders for Construction or A–E services,
contracting officer shall use VA Form not specifically applied to the actual to include dismantling, demolition, or
6298, Architect-Engineer Fee Proposal, preparation of working drawings or removal of improvements.
to obtain the proposal and supporting specifications of the project for which (c) VA Form 10101, Contractor
cost data from the proposed contractor the service are required. Production Report (see 853.236–72).
and subcontractor in the negotiation of (3) Other— Contractors may use VA Form 10101,
an A–E contract for design services. (i) Reproduction of approved designs Contractor Production Report or a
through models, color renderings, contractor generated form containing
(b) In obtaining A–E services for
photographs, or other presentation the same type of information contained
research study, seismic study, master
media; in the form, as required by 836.573
planning study, construction (ii) Travel and per diem allowances
management and other related services which prescribes the clause at 852.236–
other than those required for the 79, Contractor Production Report.
contracts, the contracting officer shall development and review of working
use VA Form 6298, supplemented or drawings and specifications; PART 842—CONTRACT
modified as needed for the particular (iii) Supervision or inspection of ADMINISTRATION AND AUDIT
project type. construction, review of shop drawings SERVICES
836.606–71 Application of 6 percent or samples, and other services
■ 34. The authority citation for part 842
architect-engineer fee limitation. performed during the construction
is revised to read as follows:
phase;
(a) The production and delivery of
(iv) All other services that are not an Authority: 40 U.S.C. 121(c); 41 U.S.C.
designs, plans, drawings, and
integral part of the production and 1702; and 48 CFR 1.301–1.304.
specifications shall not exceed 6 percent
delivery of plans, designs, and 35. Subpart 842.2 is added to read as
of the estimated cost of construction. ■
specifications; and, follows:
Other A–E fees are not included in this (v) The cost of reproducing drawings
6 percent. Such fees are delineated in and specifications for bidding and their
paragraph (c) of this section. Subpart 842.2—Contract
distribution to prospective bidders and
(b) The 6 percent limit also applies to Administration Services
plan file rooms.
contract modifications, including 842.271 Contract clause for Government
modifications involving: 836.606–72 and 836.606–73 [Removed] construction contract administration.
(1) Work not initially included in the ■ 32. Sections 836.606–72 and 836.606– The contracting officer shall insert the
contract. Apply the 6 percent limit to 73 are removed. clause at 852.242–70, Government
the revised total estimated construction ■ 33. Subpart 836.70 is added to read as Construction Contract Administration,
cost. follows: in solicitations and contracts for
(2) Redesign. Apply the 6 percent construction expected to exceed the
limit as follows— Subpart 836.70—Unique Forms for
micro-purchase threshold for
Contracting for Construction,
(i) Add the estimated construction construction.
Architect-Engineer Services, and
cost of the redesign features to the
Dismantling, Demolition, or Removal of PART 846—QUALITY ASSURANCE
original estimated construction cost;
Improvements
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(ii) Add the contract cost for the ■ 36. The authority citation for part 846
original design to the contract cost for 836.7000 Scope of subpart. is revised to read as follows:
redesign; and, This subpart sets forth requirements
Authority: 40 U.S.C. 121(c); 41 U.S.C.
(iii) Divide the total contract design for the use of VA unique forms, as 1121(c)(3); 41 U.S.C. 1702; and 48 CFR
cost by the total estimated construction prescribed in this part, for contracting 1.301–1.304.
cost. The resulting percentage may not for construction, architect-engineer
exceed the 6 percent statutory services, or dismantling, demolition, or 846.312 [Removed]
limitation. removal of improvements. See part 853. ■ 37. Section 846.312 is removed.
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![45394 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules
PART 852—SOLICITATION Performance of Work by the Contractor 852.236–79 Contractor Production Report.
PROVISIONS AND CONTRACT (Date) As prescribed in 836.573, insert the
CLAUSES (a) In accordance with FAR 52.236–1, the following clause:
contract work accomplished on the site by Contractor Production Report (Date)
■ 38. The authority citation for part 852 laborers, mechanics, and foreman/
continues to read as follows: superintendent on the contractor’s payroll (a) The Contractor shall furnish to the
and under their direct supervision shall be resident engineer, for each workday, a
Authority: 38 U.S.C. 8127–8128, and used in establishing the percent of work to consolidated report for the preceding
8151–8153; 40 U.S.C. 121(c); 41 U.S.C. be performed by the Contractor. Cost of workday. Reporting shall begin from date of
1121(c)(3); 41 U.S.C. 1702; and 48 CFR material and equipment installed by such mobilization until the date of final
1.301–1.304. labor may be included. The work by the acceptance except for authorized holidays.
contractor’s executive, administrative and VA Form 10101, Contractor Production
■ 39. Section 852.236–71 is revised to clerical forces shall be excluded in Report, or a Contractor generated form
read as follows: establishing compliance with the containing the same type of information shall
requirements of this clause. be signed, dated and submitted by the
852.236–71 Specifications and Drawings (b) The Contractor shall submit, Contractor superintendent.
for Construction. simultaneously with the schedule of costs (b) Each report shall include and
As prescribed in 836.521, insert the required by the Payments under Fixed-Price specifically identify at least one safety topic
Construction Contracts clause of the contract, germane to the jobsite that day.
following clause: a statement designating the portions of
contract work to be performed with the (End of clause)
Specifications and Drawings for
Construction (Date) contractor’s own forces. The approved ■ 46. Section 852.236–80 is revised to
schedule of costs will be used in determining read as follows:
The clause entitled ‘‘Specifications and the value of a work activity/event, or portions
Drawings for Construction’’ in FAR 52.236– thereof, of the work for the purpose of this 852.236–80 Subcontracts and Work
21 is supplemented as follows: article. Coordination.
(a) The Contracting Officer’s interpretation (c) Changes to established activity/event As prescribed in 836.574, insert the
of the drawings and specifications will be identifiers or responsibility codes for following clause:
final, subject to the Disputes clause. Contractor activities shall not be made
(b) The Contractor shall— without approval from the Contracting Subcontracts and Work Coordination
(1) Check all drawings and specifications Officer. (Date)
furnished immediately upon receipt; (d) In the event the Contractor fails to
(2) Compare all drawings and the comply with FAR 52.236–1, Performance of (a) Nothing contained in this contract shall
specifications, and verify the figures before Work by the Contractor, the Contracting be construed as creating any contractual
laying out the work; Officer will withhold retention in the amount relationship between any subcontractor and
(3) Promptly notify the Contracting Officer of 15% of the value of any work activity/ the Government. Divisions or sections of
of any discrepancies; element being invoiced that was not specifications are not intended to control the
authorized by the Contracting Officer to be Contractor in dividing work among
(4) Be responsible for any errors that might
performed by someone other than the prime subcontractors, or to limit work performed by
have been avoided by complying with this
contractor’s own workforce. any trade.
paragraph (b); and
(b) The Contractor shall be responsible to
(5) Reproduce and print contract drawings
(End of clause) the Government for acts and omissions of
and specifications as needed.
his/her own employees, and of the
(c) In general— Alternate I (DATE). For requirements
subcontractors and their employees. The
(1) Drawings of greater detail shall govern which include a Network Analysis System
Contractor shall also be responsible for
over drawings of lesser detail unless (NAS), substitute the following paragraph (b)
coordination of the work of the trades,
specifically noted otherwise; and for paragraph (b) of the basic clause:
subcontractors, and material suppliers.
(2) Figures and numerical quantities noted (b) The Contractor shall submit,
(c) The Government or its representatives
on drawings govern over scale simultaneously with the cost per activity of
will not undertake to settle any differences
measurements. the construction schedule required by
between the Contractor and subcontractors or
(d) Omissions from the drawings or Section 01310 or 01311, NETWORK
between subcontractors.
specifications or the misdescription of details ANALYSIS SYSTEM, a responsibility code
(d) The Government reserves the right to
of work that are manifestly necessary to carry for all activities of the network for which the
refuse to permit employment on the work, or
out the intent of the drawings and contractor’s forces will perform the work.
require dismissal from the work, of any
specifications, or that are customarily The cost of these activities will be used in
subcontractor or subcontractor employee
performed, shall not relieve the Contractor determining the portions of the total contract
who, by reason of previous unsatisfactory
from performing such omitted or work to be executed by the contractor’s forces
work on Department of Veterans Affairs
misdescribed details of the work. The for the purpose of this article.
projects or for any other reason, is considered
Contractor shall perform such details as if by the Contracting Officer to be incompetent,
fully and correctly set forth and described in 852.236–74 [Removed and Reserved]
careless, or otherwise objectionable.
the drawings and specifications. ■ 41. Section 852.236–74 is removed
(e) The work shall conform to the and reserved. (End of clause)
specifications and the contract drawings
852.236–76 [Removed and Reserved] Alternate I (DATE). For new construction
identified on the following index of
work with complex mechanical-electrical
drawings: ■ 42. Section 852.236–76 is removed work, the following paragraph relating to
Title File Drawing No. and reserved. work coordination may be substituted for
852.236–77 [Removed and Reserved] paragraph (b) of the basic clause:
(End of clause)
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(b) The Contractor shall be responsible to
■ 43. Section 852.236–77 is removed the Government for acts and omissions of
■ 40. Section 852.236–72 is revised to
and reserved. his/her own employees, and subcontractors
read as follows:
and their employees. The Contractor shall
852.236–78 [Removed and Reserved]
852.236–72 Performance of Work by the also be responsible for coordination of the
■ 44. Section 852.236–78 is removed work of the trades, subcontractors, and
Contractor.
and reserved. material suppliers. The Contractor shall, in
As prescribed in 836.501, insert the ■ 45. Section 852.236–79 is revised to advance of the work, prepare coordination
following clause: read as follows: drawings showing the location of openings
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![Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 45395
through slabs, the pipe sleeves and hanger 852.236–86 [Removed and Reserved] award exceed the available funds for all
inserts, as well as the location and elevation ■ 49. Section 852.236–86 is removed offerors, the Contracting Officer will skip that
of utility lines, including, but not limited to, and reserved. item and go to the next item from the bid
conveyor systems, pneumatic tubes, ducts, schedule of priorities; and
and conduits and pipes 2 inches and larger 852.236–87 [Removed and Reserved] (ii) Add that next item if an award may be
in diameter. These drawings, including made that includes that line item and is
■ 50. Section 852.236–87 is removed within the available funds.
plans, elevations, and sections as
appropriate, shall clearly show the manner in and reserved. (b) The Contracting Officer will use the list
which the utilities fit into the available space 852.236–89 [Removed and Reserved] of priorities in the bid Schedule only to
and relate to each other and to existing determine the low offeror. After determining
building elements. Drawings shall be of ■ 51. Section 852.236–89 is removed the low offeror, an award may be made on
appropriate scale to satisfy the previously and reserved. any combination of items if—
stated purposes, but not smaller than 32044;8 ■ 52. Section 852.236–90 is revised to (1) It is in the best interest of the
-inch scale. Drawings may be composite read as follows: Government;
(with distinctive colors for the various trades) (2) Funds are available at the time of
or may be separate but fully coordinated 852.236–90 Restriction on Submission and award; and
drawings (such as sepias or photographic Use of Equal Products. (3) The low offeror’s price for the
paper reproducibles) of the same scale. As prescribed in 836.202–70, insert combination to be awarded is less than the
Separate drawings shall depict identical the following clause in solicitations and price offered by any other responsive,
building areas or sections and shall be contracts when it is determined that responsible offeror.
capable of being overlaid in any combination. (c) Example. ‘‘The amount available is
only one product will meet the
The submitted drawings for a given area of $100,000. Offeror A’s base bid and four
Government’s minimum needs and the additives (in the order stated in the list of
the project shall show the work of all trades
submission of ‘‘equal’’ products is not priorities in the bid Schedule) are $85,000,
that will be involved in that particular area.
Six complete composite drawings or six permitted: $10,000, $8,000, $6,000, and $4,000. Offeror
complete sets of separate reproducible B’s base bid and four additives are $80,000,
Restriction on Submission and Use of
drawings shall be received by the $16,000, $9,000, $7,000, and $4,000. Offeror
Equal Products (Date) A is the low offeror. The aggregate amount
Government not less than 20 days prior to the
scheduled start of the work in the area (a) This clause applies to the following of offeror A’s bid for purposes of award
illustrated by the drawings, for the purpose items: [Contracting Officer fill-in] would be $99,000, which includes a base bid
of showing the Contractor’s planned methods lllllllllllllllllllll plus the first and fourth additives. The
of installation. The objectives of such second and third additives were skipped
lllllllllllllllllllll because each of them would cause the
drawings are to promote carefully planned
lllllllllllllllllllll aggregate bid to exceed $100,000.’’
work sequence and proper trade
coordination, in order to assure the (b) Notwithstanding the ‘‘Material and
Workmanship’’ clause of this contract, FAR (End of provision)
expeditious solutions of problems and the
installation of lines and equipment as 52.236–5(a), nor any other clause or ■ 55. Section 852.242–70 is added as
contemplated by the contract documents provision, only brand name products for the follows:
while avoiding or minimizing additional items listed above will be authorized for use
costs to the Contractor and to the on this contract. 852.242–70 Government Construction
Government. In the event the Contractor, in Contract Administration.
(End of clause)
coordinating the various installations and in As prescribed in 842.271, insert the
planning the method of installation, finds a 852.236–91 [Removed and Reserved] following clause. This is a fill-in clause.
conflict in location or elevation of any of the
■ 53. Section 852.236–91 is removed Government Construction Contract
utilities with themselves, with structural
items or with other construction items, he/
and reserved. Administration (Date)
she shall bring this conflict to the attention ■ 54. Section 852.236–92 is added to
(a) Contract administration functions set
of the Contracting Officer immediately. In read as follows:
forth in FAR 42.302 are hereby delegated to:
doing so, the Contractor shall explain the [Insert name and office address of
852.236–92 Notice to Bidders—Additive or
proposed method of solving the problem or Contracting Officer]
Deductive Bid Line Items.
shall request instructions as to how to (b) The work will be under the direction
proceed if adjustments beyond those of usual As prescribed in 836.580, insert the of a Department of Veterans Affairs
trades’ coordination are necessary. Utilities following provision: Contracting Officer, who may designate
installation work will not proceed in any area another VA employee to act as resident
prior to the submission and completion of
Notice to Bidders—Additive or
engineer at the construction site.
the Government review of the coordinated Deductive Bid Line Items (Date)
(c) Except as provided below, the resident
drawings for that area, nor in any area in (a) Additive or deductive line items in the engineer’s directions will not conflict with or
which conflicts are disclosed by the Schedule shall be evaluated to determine the change contract requirements. Within the
coordination drawings, until the conflicts low offeror and the items to be awarded. The limits of any specific authority delegated by
have been corrected to the satisfaction of the evaluation shall be made as follows— the Contracting Officer, the resident engineer
Contracting Officer. It is the responsibility of (1) Prior to the opening of bids, the may, by written direction, make changes in
the Contractor to submit the required Government will determine the amount of the work. The Contractor shall be advised of
drawings in a timely manner consistent with funds available for the project. the extent of such authority prior to
the requirements to complete the work (2) The low bid shall be the Bidder that— execution of any work under the contract.
covered by this contract within the (i) Is otherwise eligible for award; and (d) The Contracting Officer identified in
prescribed contract time. (ii) Offers the lowest aggregate amount for paragraph (a) of this clause may further
daltland on DSKBBV9HB2PROD with PROPOSALS
the first or base line item, plus or minus (in delegate the responsibilities below to the
852.236–84 [Removed and Reserved] the order stated in the list of priorities in the following warranted personnel on site:
■ 47. Section 852.236–84 is removed bid schedule) those additive or deductive [Insert name and office address of
and reserved. line items that provide the most features individual with limited authority]
within the funds determined available. (1) Conduct post-award orientation
852.236–85 [Removed and Reserved] (3) All bids shall be evaluated on the basis conferences.
of the same additive or deductive line items. (2) Issue administrative changes, correcting
■ 48. Section 852.236–85 is removed (i) If adding another item from the bid errors or omissions in typing, Contractor
and reserved. schedule list of priorities would make the address, facility or activity code, remittance
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![45396 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules
address, computations which do not required Atmospheric Administration (NOAA), rule, including the Environmental
additional contract funds, and other such Commerce. Assessment (EA) and Regulatory Impact
changes (see FAR 43.101). Review (RIR)/Regulatory Flexibility
(3) For actions not to exceed $ (insert ACTION: Proposed rule, request for
dollar amount) negotiate and execute comments. Analysis (RFA), are available from
supplemental agreements incorporating www.regulations.gov or from the NMFS
Contractor proposals resulting from change SUMMARY: NMFS proposes revising West Coast Region Groundfish Fisheries
orders issued under the Changes clause. Federal regulations that restrict the use website at http://www.westcoast.
(4) Negotiate and execute supplemental and configuration of bottom and fisheries.noaa.gov/fisheries/groundfish/
agreements changing contract delivery midwater trawl gear for vessels fishing index.html.
schedules where the time extension does not under the Pacific Coast Groundfish
exceed (insert number) calendar days. FOR FURTHER INFORMATION CONTACT:
Fishery’s Trawl Rationalization Karen Palmigiano, Fishery Management
(End of clause) Program. The gear restrictions were Specialist, 206–526–4491, or
originally implemented to limit karen.palmigiano@noaa.gov.
PART 853—FORMS discarding and protect overfished
SUPPLEMENTARY INFORMATION:
rockfish species. These restrictions are
■ 56. The authority citation for part 853
no longer necessary because of changes Table of Contents
is revised to read as follows:
to the fishery, including implementation I. Background
Authority: 40 U.S.C. 121(c); 41 U.S.C. of the Trawl Rationalization Program in
1702; and 48 CFR 1.301–1.304. II. Summary of the Proposed Regulations
2011, and improved status of a number A. Proposed Regulations for Net
Subpart 853.1—General of overfished rockfish stocks. By Configuration
eliminating these regulations, the 1. Eliminate Minimum Mesh Size
■ 57. Section 853.107 is revised to read proposed action could increase Restriction
as follows: flexibility in how vessels can use and 2. Revise the Definition of Mesh Size
3. Eliminate the Prohibition on Double-
configure gear to increase access to
853.107 Obtaining forms. walled Codends
target stocks and efficiency of fishing 4. Eliminate Restrictions on the Use of
VA forms may be obtained online at practices, while still limiting the catch Chafing Gear
https://www.va.gov/vaforms/ or upon of target and non-target discards to meet 5. Summary of Potential Impacts From
request from any VA contracting office. the conservation objectives of the Trawl Proposed Regulations for Net
Rationalization Program. Configuration
Subpart 853.2—Prescription of Forms B. Eliminate the Requirement to Use
DATES: Comments on this proposed rule
■ 58. Sections 853.236 and 853.236–70 Selective Flatfish Trawl Shoreward of
must be received on or before October the RCA and North of 42 N. Latitude
are revised to read as follows: 9, 2018. C. Proposed Regulations for Vessel
853.236 Construction and architect- ADDRESSES: Submit your comments, Operations
engineer contracts. identified by NOAA–NMFS–2018–0081, 1. Eliminate the Prohibition on Multiple
by any of the following methods: Types of Groundfish Trawl Gears Carried
853.236–70 VA Form 6298, Architect- and Fished on the Same Trip
• Online Submission: Go to the
Engineer Fee Proposal (see 836.7001(a)). 2. Eliminate the Prohibition on Bringing a
Federal e-Rulemaking Portal at New Haul Onboard Before All Catch
■ 59. Sections 853.236–71 and www.regulations.gov/
853.236.72 are added to read as follows: From the Previous Haul Is Stowed
#!docketDetail;D=NOAA-NMFS-2018- 3. Eliminate the Prohibition on Fishing in
853.236–71 VA Form 2138, Order for 0081, click the ‘‘Comment Now!’’ icon, Multiple IFQ Management Areas on the
Supplies or Services (Including Task Orders complete the required fields, and enter Same Tow
for Construction or A–E Services) (see or attach your comments. 4. Summary of Potential Impacts From
836.7001(b)). • Mail: Submit written comments to Proposed Regulations for Some Vessel
Barry Thom, Regional Administrator, Operations
853.236–72 VA Form 10101, Contractor III. Classification
Production Report (see 836.7001(c)). West Coast Region, NMFS, 7600 Sand IV. Description of Regulated Entities
Point Way NE, Seattle, WA 98115–0070. V. Description of the Proposed Regulations
[FR Doc. 2018–18309 Filed 9–6–18; 8:45 am] NMFS may not consider comments if VI. Collection of Information Requirements
BILLING CODE 8320–01–P they are sent by any other method, to
any other address or individual, or I. Background
received after the comment period ends. Prior to 2011, the Pacific Coast
DEPARTMENT OF COMMERCE All comments received are a part of the Groundfish fishery was primarily
public record and NMFS will post the managed with trip and landing limits
National Oceanic and Atmospheric comments for public viewing on and area closures and monitoring was
Administration www.regulations.gov without change. limited (e.g., less than 25 percent of
All personal identifying information groundfish bottom and midwater trawl
50 CFR Part 660 (e.g., name, address, etc.), confidential trip landings were subject to at-sea
[Docket No. 180207141–8783–01] business information, or otherwise observer coverage). During that time,
sensitive information submitted NMFS implemented trawl gear
RIN 0648–BH74 voluntarily by the sender is publicly restrictions to both reduce groundfish
accessible. NMFS will accept and non-groundfish bycatch and
Magnuson-Stevens Act Provisions;
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anonymous comments (enter ‘‘N/A’’ in discards, as well as limit access to
Fisheries Off West Coast States;
the required fields if you wish to remain overfished rockfish habitat. Restrictions
Pacific Coast Groundfish Fishery;
anonymous). Attachments to electronic included: (1) Minimum mesh size
Groundfish Bottom Trawl and
comments will be accepted in Microsoft requirements; (2) requirements for
Midwater Trawl Gear in the Trawl
Word, Excel, or Adobe PDF file formats chafing gear and cod-ends; (3) the trawl
Rationalization Program
only. Rockfish Conservation Areas (RCA),
AGENCY: National Marine Fisheries Electronic copies of supporting which prohibits the use of groundfish
Service (NMFS), National Oceanic and documents referenced in this proposed bottom trawl gear between certain
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Document Created: 2018-09-07 00:16:03
Document Modified: 2018-09-07 00:16:03
| 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 | Comments must be received on or before November 6, 2018 to be considered in the formulation of the final rule. | |
| Contact | Mr. Ricky Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 632-5276. (This is not a toll-free number.) | |
| FR Citation | 83 FR 45384 | |
| RIN Number | 2900-AQ18 | |
| CFR Citation | 48
CFR
801 48 CFR 825 48 CFR 836 48 CFR 842 48 CFR 846 48 CFR 852 48 CFR 853 | |
| CFR Associated | Administrative Practice and Procedure; Government Procurement; Reporting and Recordkeeping Requirements; Customs Duties and Inspection; Foreign Currencies; Foreign Trade and Accounting |
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