VA Acquisition Regulation: Construction and Architect-Engineer Contracts, 9968-9976 [2019-04900]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 84, Number 53 (Tuesday, March 19, 2019)]
[Rules and Regulations]
[Pages 9968-9976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04900]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending and 
updating 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revise or remove any policy superseded by changes in the Federal 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streamline and align the VAAR with the FAR and remove outdated and 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, we will publish them in the 
Federal Register. 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: This rule is effective on April 18, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Rafael N. Taylor, Senior 
Procurement Analyst, Procurement Policy and Warrant Management 
Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-
2787. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On September 7, 2018, VA published a

[[Page 9969]]

proposed rule in the Federal Register (83 FR 45384) which announced 
VA's intent to amend regulations for VAAR Case RIN 2900-AQ18 (part 
836). In particular, this final rule removes 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.
    In part 836, under 836.203, Government estimate of construction 
costs, this rule renumbers and retitles the section to 836.203-70, 
Protection of the independent government estimate--sealed bid, and 
revises it to more specifically clarify VA procedures to protect the 
independent government estimate in sealed bid acquisitions when bid 
openings are held. Section 836.204, Disclosure of the magnitude of 
construction projects, revises 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.
    This rule removes 836.206, Liquidated damages, since the subject 
matter is adequately covered in the FAR, as well as 836.209, 
Construction contracts with architect-engineer firms, as it contains 
internal procedures and moves the coverage to the VAAM. For the same 
reason, this rule removes 836.213-4, Notice of award, and 836.213-70, 
Notice to proceed.
    This rule removes 836.513, Accident prevention, since the 
prescribed clause is duplicative of coverage in FAR clause 52.236-1, 
Accident Prevention, as well as 836.570, Correspondence, as the clause 
it prescribes, 852.236-76, Correspondence, is being removed. The 
subject matter will be addressed in the VAAM by directing contracting 
officers to include this information in a ``Notice to Proceed'' letter 
to the contractor from the contracting officer.
    This rule adds 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.
    This rule adds 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 describes 
contract administration functions to be delegated under construction 
contracts that exceed the micro-purchase threshold for construction. It 
describes 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.
    This rule removes 846.312, Construction contracts, which prescribes 
clause 852.236-74, Inspection of Construction, as well as the clause.
    Under part 852, this rule removes 852.236-74, Inspection of 
Construction, since VA Master Specifications provide the requirements 
for performing inspections. This rule also removes 852.236-77, 
Reference to ``Standards,'' as VA Master Specifications are used in VA 
contracts. This rule removes 852.236-78, Government Supervision, and 
adds a revised version at 852.242-70, Government Construction Contract 
Administration. This rule amends clause 852.236-79, Daily Report of 
Workers and Materials, by changing the title to ``Contractor Production 
Report'' and revises the clause to reflect use of VA Form 10101 which 
is based on industry reporting standards.
    In subpart 853.1--General, this rule revises the text of 853.107, 
Obtaining forms, to provide the current website address where VA forms 
are obtained now: https://www.va.gov/vaforms/. It removes the outdated 
address for an old VA office and discontinues the outdated practice of 
requesting forms in hard copy directly from the agency policy office. 
All forms will now be available online. This rule, under subpart 
853.2--Prescription of Forms, revises 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.

Technical Non-Substantive Change to the Proposed Rule

    This rule makes one technical non-substantive change to correct the 
amendatory instruction at 801.106 to remove the reference to 852.236-82 
through 852.236-84, and its corresponding OMB Control Number.
    VA provided a 60-day comment period for the public to respond to 
the proposed rule. The comment period for the proposed rule ended on 
November 6, 2018 and VA received no comments. This document adopts as a 
final rule the proposed rule published in the Federal Register on 
September 7, 2018, with the technical non-substantive change noted 
above and other minor formatting and/or grammatical edits. This final 
rule has Federal Register administrative format changes in the 
amendatory text which make no substantive text changes at the affected 
sections.

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 final rule will have no such effect on 
State, local, and tribal Governments or on the private sector.

Paperwork Reduction Act

    This final rule impacts seven existing information collection 
requirements associated with four Office of Management and Budget (OMB) 
control number approvals. The actions in this rule result in multiple 
actions affecting some of these information collections, such as: The 
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).
    This final 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 revised with updated thresholds and FAR 
citations, as well as an updated 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 final 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 remains 
unchanged. However, this rule does amend this information collection 
requirement to

[[Page 9970]]

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 are 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. Other revisions to the associated OMB 
control number relating to other provisions of this rule are identified 
separately in this submittal.
    This final rule also contains one provision constituting a 
collection of information at 48 CFR 852.236-72, Performance of Work by 
the Contractor, that will remain unchanged. Under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), the collection 
of information associated with this provision remains unchanged. The 
information collection requirement for 852.236-72 is currently approved 
by OMB and has been assigned OMB control number 2900-0422. The burden 
of this information collection remains unchanged. In accordance with 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), OMB has 
approved the reporting or recordkeeping provision that is included in 
the clause at 852.236-72 cited above and against the assigned OMB 
control number.
    This final rule imposes the following amended information 
collection requirements to one of the four existing information 
collection approval numbers associated with this 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 collection of information 
is associated with this provision as a part of this final rule. The 
information collection requirement for 852.236-79 is currently approved 
by OMB and has been assigned OMB control number 2900-0208. The burden 
of this information collection remains unchanged. However, this rule 
does amend this information collection requirement to prescribe the new 
form--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 final 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 remains 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 final rule removes 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 final rule, the 
information collection burden that is associated with clause 852.236-84 
is removed. For 48 CFR 852.236-84, Schedule of Work Progress, 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)), this final rule removes 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 final rule, 
the information collection burden that is associated with them is 
removed. For 48 CFR 852.236-89, Buy American Act, and its corresponding 
OMB control number 2900-0622, this results in the 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 results in the 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 final rule does 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 
rule is 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 will 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

[[Page 9971]]

basis, the final rule does 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.

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 not be a significant regulatory action under E.O. 12866 
because it does not 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's impact analysis can be found as a 
supporting document at https://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 https://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 Through Fiscal Year to Date. This final rule is 
considered an E.O. 13771 deregulatory action. Details on the estimated 
cost savings of this final rule can be found in the rule's economic 
analysis and in the PRA section below.

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 January 8, 2019, for publication.

    Dated: March 12, 2019.
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 amends 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:  40 U.S.C. 121(c); 41 U.S.C. 1121; 41 U.S.C. 1303; 41 
U.S.C. 1702; and 48 CFR 1.301-1.304.

Subpart 801.1--Purpose, Authority, Issuance


801.106  [Amended]

0
2. In 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 852.236-82 through 852.236-84 and 852.236-89 
and the corresponding OMB Control Number 2900-0622.
0
b. 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, consisting of sections 825.103 and 825.104, is 
removed and reserved.

Subpart 825.11 [Removed and Reserved]

0
5. Subpart 825.11, consisting of section 825.1102, 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 submission 
of an ``equal'' product, shall not apply to the specific items listed 
in clause 852.236-90.

[[Page 9972]]


0
9. Section 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(a) through (e) 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 
prescribed 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.

[[Page 9973]]


0
30. Section 836.603 is revised to read as follows:


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 
(SES) official 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, 86.606-70, and 86.606-71 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 reference (c) below.
    (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, consisting of sections 836.7000 and 836.7001, 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 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 amended 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, consisting of section 842.271, 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:


[[Page 9974]]


    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1121; 41 U.S.C. 1303; 41 
U.S.C. 1702; and 48 CFR 1.301-1.304.


846.312  [Removed]

0
37. Section 846.312 is removed.

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 (Apr 2019)

    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 (Apr 2019)

    (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 (APR 2019). 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 (Apr 2019)

    (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 (Apr 2019)

    (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 (APR 2019). For new construction work with complex 
mechanical-electrical work, the

[[Page 9975]]

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 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 two 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 \3/8\-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 (Apr 2019)

    (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 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 (Apr 2019)

    (a) Additive or deductive line items in the bid 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.

[[Page 9976]]

Government Construction Contract Administration (Apr 2019)

    (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) 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 
address, computations which do not require 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 amended 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 836.236-71 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. 2019-04900 Filed 3-18-19; 8:45 am]
 BILLING CODE 8320-01-P