48 C.F.R. PART 236—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Title 48 - Federal Acquisition Regulations System
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
Source: 56 FR 36421, July 31, 1991, unless otherwise noted.
(1) A-E means architect-engineer. (2) Construction activity means an activity at any organizational level of the DoD that— (i) Is responsible for the architectural, engineering, and other related technical aspects of the planning, design, and construction of facilities; and (ii) Receives its technical guidance from the Army Office of the Chief of Engineers, Naval Facilities Engineering Command, or Air Force Directorate of Civil Engineering. (3) Marshallese firm is defined in the provision at 252.236–7012, Military Construction on Kwajalein Atoll—Evaluation Preference. (4) United States firm is defined in the provisions at 252.236–7010, Overseas Military Construction-Preference for United States Firms, and 252.236–7011, Overseas Architect-Engineer Services-Restriction to United States firms. [56 FR 36421, July 31, 1991, as amended at 62 FR 2857, Jan. 17, 1997; 63 FR 11538, Mar. 9, 1998; 71 FR 9272, Feb. 23, 2006] (a) Preparation of performance evaluation reports. Use DD Form 2626, Performance Evaluation (Construction), instead of SF 1420. (c) Follow the procedures at PGI 236.201(c) for distribution and use of performance reports. [56 FR 36421, July 31, 1991, as amended at 61 FR 7749, Feb. 29, 1996; 66 FR 49861, Oct. 1, 2001; 71 FR 9272, Feb. 23, 2006] Follow the procedures at PGI 236.203 for handling the Government estimate of construction costs. [71 FR 9273, Feb. 23, 2006] Additional price ranges are— (i) Between $10,000,000 and $25,000,000; (ii) Between $25,000,000 and $100,000,000; (iii) Between $100,000,000 and $250,000,000; (iv) Between $250,000,000 and $500,000,000; and (v) Over $500,000,000. [61 FR 7749, Feb. 29, 1996] See 211.503 for instructions on use of liquidated damages. [56 FR 36421, July 31, 1991, as amended at 66 FR 49861, Oct. 1, 2001] If it appears that sufficient funds may not be available for all the desired construction features, consider using a bid schedule with additive or deductive items in accordance with PGI 236.213. [71 FR 9273, Feb. 23, 2006] (a) 10 U.S.C. 2858 requires agency head approval to expedite the completion date of a contract funded by a Military Construction Appropriations Act, if additional costs are involved. This approval authority may not be redelegated. The approval authority must— (1) Certify that the additional expenditures are necessary to protect the National interest; and (2) Establish a reasonable completion date for the project. (b) The contracting officer may approve an expedited completion date if no additional costs are involved. Annual military construction appropriations acts restrict the use of cost-plus-fixed-fee contracts (see 216.306(c)). [61 FR 7749, Feb. 29, 1996] (a) Prequalification procedures may be used when necessary to ensure timely and efficient performance of critical construction projects. Prequalification— (1) Results in a list of sources determined to be qualified to perform a specific construction contract; and (2) Limits offerors to those with proven competence to perform in the required manner. (b) The head of the contracting activity must— (1) Authorize the use of prequalification by determining, in writing, that a construction project is of an urgency or complexity that requires prequalification; and (2) Approve the prequalification procedures. (c) For small businesses, the prequalification procedures must require the qualifying authority to— (1) Request a preliminary recommendation from the appropriate Small Business Administration regional office, if the qualifying authority believes a small business is not responsible; (2) Permit the small business to submit a bid or proposal if the preliminary recommendation is that the small business is responsible; and (3) Follow the procedures in FAR 19.6, if the small business is in line for award and is found nonresponsible. (a) In accordance with Section 112 of Pub. L. 105–45 and similar sections in subsequent military construction appropriations acts, military construction contracts funded with military construction appropriations, that are estimated to exceed $1,000,000 and are to be performed in the United States outlying area in the Pacific and on Kwajalein Atoll, or in countries bordering the Arabian Gulf, shall be awarded only to United States firms, unless— (1) The lowest responsive and responsible offer of a United States firm exceeds the lowest responsive and responsible offer of a foreign firm by more than 20 percent; or (2) The contract is for military construction on Kwajalein Atoll and the lowest responsive and responsible offer is submitted by a Marshallese firm. (b) See PGI 236.273(b) for guidance on technical working agreements with foreign governments. [56 FR 36421, July 31, 1991, as amended at 62 FR 2856, Jan. 17, 1997; 62 FR 34127, June 24, 1997; 63 FR 11538, Mar. 9, 1998; 66 FR 49861, Oct. 1, 2001; 70 FR 35545, June 21, 2005. Redesignated and amended at 71 FR 9273, Feb. 23, 2006] (a) Use the following clauses in all fixed-price construction solicitations and contracts— (1) 252.236–7000, Modification Proposals-Price Breakdown; and (2) 252.236–7001, Contract Drawings and Specifications. (b) Use the following provisions and clauses in fixed-price construction contracts and solicitations as applicable— (1) 252.236–7002, Obstruction of Navigable Waterways, when the contract will involve work near or on navigable waterways. (2) When the head of the contracting activity has approved use of a separate bid item for mobilization and preparatory work, use either— (i) 252.236–7003, Payment for Mobilization and Preparatory Work. Use this clause for major construction contracts that require— (A) Major or special items of plant and equipment; or (B) Large stockpiles of material which are in excess of the type, kind, and quantity which would be normal for a contractor qualified to undertake the work; or (ii) 252.236–7004, Payment for Mobilization and Demobilization. Use this clause for contracts involving major mobilization expense, or plant equipment and material (other than the situations covered in paragraph (b)(2)(i) of this section) made necessary by the location or nature of the work. (A) Generally, allocate 60 percent of the lump sum price in paragraph (a) of the clause to the cost of mobilization. (B) Vary this percentage to reflect the circumstances of the particular contract, but in no event should mobilization exceed 80 percent of the payment item. (3) 252.236–7005, Airfield Safety Precautions, when construction will be performed on or near airfields. (4) 252.236–7006, Cost Limitation, if the solicitation's bid schedule contains one or more items subject to statutory cost limitations, and if a waiver has not been granted (FAR 36.205). (5) 252.236–7007, Additive or Deductive Items, if the procedures in 236.213–70 are being used. (6) 252.236–7008, Contract Prices—Bidding Schedule, if the contract will contain only unit prices for some items. (c) Use the following provisions in solicitations for military construction contracts that are funded with military construction appropriations and are estimated to exceed $1,000,000: (1) 252.236–7010, Overseas Military Construction—Preference for United States Firms, when contract performance will be in a United States outlying area in the Pacific or in a country bordering the Arabian Gulf. (2) 252.236–7012, Military Construction on Kwajalein Atoll—Evaluation Preference, when contract performance will be on Kwajalein Atoll. (d) Also see 246.710(4) for an additional clause applicable to construction contracts to be performed in Germany. [56 FR 36421, July 31, 1991, as amended at 57 FR 42632, Sept. 15, 1992; 62 FR 2856, Jan. 17, 1997; 62 FR 34127, June 24, 1997; 63 FR 11538, Mar. 9, 1998; 65 FR 63804, Oct. 25, 2000; 68 FR 7440, Feb. 14, 2003; 70 FR 35545, June 21, 2005] (1) 10 U.S.C. 2807(b) requires notice to Congress 21 days before the initial obligation of funds if a contract is for— (i) A-E services or construction design for military construction, military family housing, or restoration or replacement of damaged or destroyed facilities; and (ii) An estimated total contract price of $500,000 or more. (2) During the 21 day period, synopsis of the proposed contract action and administrative actions leading to the award may be started. [56 FR 36421, July 31, 1991, as amended at 63 FR 69008, Dec. 15, 1998] (a) Establish the evaluation criteria before making the public announcement required by FAR 5.205(c) and include the criteria and their relative order of importance in the announcement. Follow the procedures at PGI 236.602–1(a). [69 FR 75000, Dec. 15, 2004] In accordance with Section 111 of Public Law 104–32 and similar sections in subsequent military construction appropriations acts, A-E contracts funded by military construction appropriations that are estimated to exceed $500,000 and are to be performed in Japan, in any North Atlantic Treaty Organization member country, or in countries bordering the Arabian Gulf, shall be awarded only to United States firms or to joint ventures of United States and host nation firms. [62 FR 2858, Jan. 17, 1997] (a) Preparation of performance reports. Use DD Form 2631, Performance Evaluation (Architect-Engineer), instead of SF 1421. (2) Prepare a separate performance evaluation after actual construction of the project. Ordinarily, the evaluating official should be the person most familiar with the A-E's performance. (c) Distribution and use of performance reports. (i) Forward each performance report to the central data base identified in 236.201(c) after completing the review. The procedures in 236.201 also apply to A-E contracts. (ii) File and use the DD Form 2631, Performance Evaluation (Architect-Engineer), in a manner similar to the SF 330, Architect-Engineer Qualifications, Part II. [56 FR 36421, July 31, 1991, as amended at 61 FR 7749, Feb. 29, 1996; 64 FR 51076, Sept. 21, 1999; 69 FR 75000, Dec. 15, 2004] (a) 10 U.S.C. 4540, 7212, and 9540 limit the contract price (or fee) for A-E services for the preparation of designs, plans, drawings, and specifications to six percent of the project's estimated construction cost. (b) The six percent limit also applies to contract modifications, including modifications involving— (1) Work not initially included in the contract. Apply the six percent limit to the revised total estimated construction cost. (2) Redesign. Apply the six 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 six percent statutory limitation. (c) The six percent limit applies only to that portion of the contract (or modification) price attributable to the preparation of designs, plans, drawings, and specifications. If a contract or modification also includes other services, the part of the price attributable to the other services is not subject to the six percent limit. (a)(1) Use the clause at 252.236–7009, Option for Supervision and Inspection Services, in solicitations and contracts for A-E services when— (i) The contract will be fixed price; and (ii) Supervision and inspection services by the A-E may be required during construction. (2) Include the scope of such services in appendix A of the contract. (b) Use the provision at 252.236–7011, Overseas Architect-Engineer Services—Restriction to United States Firms, in solicitations for A-E contracts that are— (1) Funded with military construction appropriations; (2) Estimated to exceed $500,000; and (3) To be performed in Japan, in any North Atlantic Treaty Organization member country, or in countries bordering the Arabian Gulf. [56 FR 36421, July 31, 1991, as amended at 62 FR 2858, Jan. 17, 1997; 63 FR 11539, Mar. 9, 1998] (c) Do not use Optional Form 347, Order for Supplies or Services (see 213.307). [56 FR 36421, July 31, 1991, as amended at 65 FR 63804, Oct. 25, 2000]
Title 48: Federal Acquisition Regulations System
PART 236—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Section Contents
236.102 Definitions.
236.201 Evaluation of contractor performance.
236.203 Government estimate of construction costs.
236.204 Disclosure of the magnitude of construction projects.
236.206 Liquidated damages.
236.213 Special procedures for sealed bidding in construction contracting.
236.270 Expediting construction contracts.
236.271 Cost-plus-fixed-fee contracts.
236.272 Prequalification of sources.
236.273 Construction in foreign countries.
236.570 Additional provisions and clauses.
236.601 Policy.
236.602 Selection of firms for architect-engineer contracts.
236.602-1 Selection criteria.
236.602-70 Restriction on award of overseas architect-engineer contracts to foreign firms.
236.604 Performance evaluation.
236.606 Negotiations.
236.606-70 Statutory fee limitation.
236.609 Contract clauses.
236.609-70 Additional provision and clause.
236.701 Standard and optional forms for use in contracting for construction or dismantling, demolition, or removal of improvements.
Subpart 236.1—General
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236.102 Definitions.
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Subpart 236.2—Special Aspects of Contracting for Construction
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236.201 Evaluation of contractor performance.
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236.203 Government estimate of construction costs.
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236.204 Disclosure of the magnitude of construction projects.
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236.206 Liquidated damages.
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236.213 Special procedures for sealed bidding in construction contracting.
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236.270 Expediting construction contracts.
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236.271 Cost-plus-fixed-fee contracts.
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236.272 Prequalification of sources.
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236.273 Construction in foreign countries.
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Subpart 236.5—Contract Clauses
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236.570 Additional provisions and clauses.
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Subpart 236.6—Architect-Engineer Services
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236.601 Policy.
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236.602 Selection of firms for architect-engineer contracts.
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236.602-1 Selection criteria.
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236.602-70 Restriction on award of overseas architect-engineer contracts to foreign firms.
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236.604 Performance evaluation.
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236.606 Negotiations.
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236.606-70 Statutory fee limitation.
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236.609 Contract clauses.
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236.609-70 Additional provision and clause.
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Subpart 236.7—Standard and Optional Forms for Contracting for Construction, Architect-Engineer Services, and Dismantling, Demolition, or Removal of Improvements
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236.701 Standard and optional forms for use in contracting for construction or dismantling, demolition, or removal of improvements.
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