[Federal Register Volume 73, Number 232 (Tuesday, December 2, 2008)]
[Proposed Rules]
[Pages 73199-73201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28604]



48 CFR Part 536

[GSAR 2008-G509; Docket 2008-0007; Sequence 24]
RIN 3090-AI81

General Services Administration Acquisition Regulation; GSAR 
2008-G509; Rewrite of Part 536, Construction and Architect-Engineer 

AGENCY: Office of the Chief Acquisition Officer, General Services 
Administration (GSA).

ACTION: Proposed rule.


SUMMARY: The GSA is proposing to amend the GSA Acquisition Regulation 
(GSAR) to revise the language that provides requirements for 
contracting construction and architect-engineer services.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before February 2, 2009 to be considered 
in the formulation of a final rule.

ADDRESSES: Submit comments identified by GSAR Case 2008-G509 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``GSAR Case 
2008-G509'' under the heading ``Comment or Submission''. Select the 
link ``Send a Comment or Submission'' that corresponds with GSAR Case 
2008-G509. Follow the instructions provided

[[Page 73200]]

to complete the ``Public Comment and Submission Form.'' Please include 
your name, company name (if any), and ``GSAR Case G2008-G509'' on your 
attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite GSAR Case 2008-
G509 in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT For clarification of content, contact 
Ms. Cecelia L. Davis at (202) 219-0202. For information pertaining to 
the status or publication schedules, contact the Regulatory Secretariat 
(VPR), Room 4041, GS Building, Washington, DC 20405, (202) 501-4755. 
Please cite GSAR Case 2008-G509.


A. Background

    The GSA is amending the GSAR to update the text addressing GSAR 
536, Construction and Architect-Engineer Contracts, Subpart 536.1 
General, Subpart 536.2 Special Aspects of Contracting for Construction, 
Subpart 536.5 Contract Clauses, and Subpart 536.6 Architect-Engineer 
Services. This rule is a result of the GSA Acquisition Manual (GSAM) 
Rewrite initiative undertaken by GSA to revise the GSAM to maintain 
consistency with the FAR and implement streamlined and innovative 
acquisition procedures that contractors, offerors, and GSA contracting 
personnel can utilize when entering into and administering contractual 
relationships. The GSAM incorporates the GSAR as well as internal 
agency acquisition policy.
    The GSA will rewrite each part of the GSAR and GSAM, and as each 
GSAR part is rewritten, will publish it in the Federal Register.
    This rule covers the rewrite of the GSAR portion of Part 536. The 
rule revises: 536.1 General, to add language at 536.101 to clarify the 
applicability of this part when contracting for construction and 
architect-engineer services and contracts for construction management 
services; Subpart 536.2, Special Aspects of Contracting for 
Construction, to replace ``you'' with ``contracting officer'' and 
``Their use'' with ``Use of'' to ensure grammatical and structural 
clarity; to delete 536.270 (c), and move the prior coverage at 
paragraph (d) to paragraph(c) because the FAR coverage is adequate; to 
delete 536.271 because the underlying Executive Order is no longer in 
effect; Subpart 536.5 Contract Clauses, to delete clauses 552.236.72--
Specialist, 552.236-74--Working hours, 552.236-75--Use of premises, 
552.236-76--Measurements, 552.236-79--Samples, 552.236-80--Heat, and 
552.236-81 - Use of Equipment by the Government, because the substance 
of the clauses is covered in the agency's technical specifications; to 
combine 552.236-78 - Shop Drawings, Coordination Drawings, and 
Schedules and 552.236-77 - Specifications and Drawings, into clause 
552.236-77 to align with the FAR clause and revise the title of the 
clause; to delete 552.236-83 - Requirement for a Project Labor 
Agreement, because the underlying Executive Order is no longer in 
effect; through an appropriate deviation add new clause 552.236-XX - 
Project Schedule; for use in all solicitations and contracts, to 
replace FAR 52.236-15 Schedules for Construction Contracts, because the 
FAR clause does not sufficiently provide the protection needed by the 
agency; Subpart 536.6; to change ``Commerce Business Daily'' to 
``FedBizOpps,'' and delete section (d) as unnecessary based upon 
existing FAR coverage.

Discussion of Comments

    One public comment was received in response to the Advanced Notice 
of Proposed Rulemaking. The comment addressed acquiring construction 
under FAR Part 12--Acquisition of Commercial Items. The GSA issued 
agency guidance on August 7, 2002, stating that from a policy 
standpoint that construction can be acquired using FAR Part 12 
procedures. In an Office of Federal Procurement Policy memorandum dated 
July 3, 2003, it states: ``For the reasons discussed below, FAR Part 
12, as currently promulgated, should rarely, if ever, be used for new 
construction acquisitions or non-routine alteration and repair 
services. In accordance with long-standing practice, agencies should 
apply the policies of FAR Part 36 to these acquisitions.'' 
Additionally, some of the GSA regions are using FAR Part 12 to procure 
such things as sprinkler systems, painting projects, etc. The agency's 
guidance was never intended to include major construction (new 
buildings/courthouses, etc). The agency agrees that additional guidance 
regarding construction as it relates to FAR Part 12 should be 
addressed, and may be considered in finalizing the rewrite of GSAR Part 
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The GSA does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the revisions are not considered substantive. The revisions 
only update and reorganize existing coverage. An Initial Regulatory 
Flexibility Analysis has, therefore, not been performed. We invite 
comments from small businesses and other interested parties. The GSA 
will consider comments from small entities concerning the affected GSAR 
Part 536 in accordance with 5 U.S.C. 610. Interested parties must 
submit such comments separately and should cite 5 U.S.C. 601, et seq. 
(GSAR case 2008-G509), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the GSAM do not impose information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 536

    Government procurement.

    Dated: October 29, 2008
Al Matera,
Director, Office of Acquisition Policy.
    Therefore, GSA proposes to amend 48 CFR part 536 as set forth 


    1. The authority citation for 48 CFR part 536 continues to read as 

    Authority: : 40 U.S.C. 121(c).
    2. Revise section 536.101 to read as follows:

536.101   Applicability.

    This part supplements FAR Part 36 policies and procedures 
applicable to contracting for construction and architect-engineer 
services. Contracts for construction management services are addressed 
in GSAM Part 537. If a requirement in this part is inconsistent with a 
requirement in another GSAR part, this part takes precedence.

[[Page 73201]]

    3. Amend section 536.213-370 in paragraph (a) by revising the 
second and fourth sentences to read as follows:

536.213-370   Bids that include alternates.

    (a) * * * If it appears that funds available for a project may be 
insufficient to include all desired features in the base bid, the 
contracting officer may issue a solicitation for a base bid and include 
one or more alternates in the order of priority. * * * Use of 
alternates must be limited and should involve only ``add'' alternates.
* * * * *
    4. Amend section 536.213-371 by revising paragraph (a) and the 
introductory text of (c) to read as follows:

536.213-371   Bids that include options.

    (a) Subject to the limitations in paragraph (c) of this section, 
the contracting officer may include options in contracts if it is in 
the Government's interest.
* * * * *
    (c) Contracting officer must not use options under any of the 
following conditions:
* * * * *

536.270   [Amended]

    5. Amend section 536.270 by removing paragraph (c) and 
redesignating paragraph (d) as (c).

536.271   [Removed]

    6. Remove section 536.271.

536.570-3   [Removed]

    7. Remove section 536.570-3.

536.570-5 through 536.570-7   [Removed]

    8. Remove sections 536.570-5 through 536.570-7.
    9. Revise section 536.570-8 to read as follows:

536.570-8   Shop drawings and other submittals.

    Insert the clause at 552.236-77, Shop Drawings and Other 
Submittals, in solicitations and contracts if construction, 
dismantling, demolition, or removal of improvements is contemplated and 
the contract amount is expected to exceed the simplified acquisition 

536.570-9 through 536.570-12   [Removed]

    10. Remove sections 536.570-9 through 536.570-12.

536.570-14   [Removed]

    11. Remove section 536.570-14.
    12. Add section 536.570-XX to read as follows:

536.570-XX   Project Schedule.

    Insert the clause at 552.236-XX, Project Schedule, in solicitations 
and contracts instead of FAR 52.236-15, Schedules for Construction 
Contracts, if construction, dismantling, demolition, or removal of 
improvements is contemplated and the contract amount is expected to 
exceed the simplified acquisition threshold.
    13. Amend section 536.602-1 by revising paragraphs (a)(2), (b) 
introductory text, (b)(1); and by removing paragraph (d). The revised 
text reads as follows:

536.602-1   Selection criteria.

    (a) * * *
    (1) * * *
    (2) This factor must not exceed five percent of the total weight of 
all evaluation criteria. To receive the maximum score for this factor, 
the architect-engineer firm(s) must demonstrate that at least 35 
percent of the architect-engineer contract services (based on the total 
contract price) will be accomplished within the geographical boundaries 
established for the project.
* * * * *
    (b) The notice posted in FedBizOpps for a proposed project must 
identify the general geographical area of the project by either:
    (1) A radius in miles or other appropriate unit of measure; or
* * * * *
[FR Doc. E8-28604 Filed 12-1-08; 8:45 am]