[Federal Register Volume 87, Number 184 (Friday, September 23, 2022)]
[Rules and Regulations]
[Pages 58227-58232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20341]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 12, 19, 36, and 43

[FAC 2022-08; FAR Case 2018-020; Item II; Docket No. FAR-2018-0020, 
Sequence No. 1]
RIN 9000-AN78


Federal Acquisition Regulation: Construction Contract 
Administration

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement a section of the John 
S. McCain National Defense Authorization Act for Fiscal Year 2019, to 
require agencies to provide a notice along with the solicitation to 
prospective bidders and offerors regarding definitization of requests 
for equitable adjustment related to change orders under construction 
contracts.

DATES: Effective October 28, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Dana Bowman, Procurement Analyst, 
at 202-803-3188, or by email at [email protected], for clarification 
of content. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat Division at 202-501-4755 
or [email protected]. Please cite FAC 2022-08, FAR Case 2018-020.

[[Page 58228]]


SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule at 85 FR 18181 on 
April 1, 2020, to implement section 855 of the John S. McCain National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 
115--232), codified at 15 U.S.C. 644(w) in the Small Business Act.
    Section 855 requires Federal agencies to provide a notice, along 
with solicitations for construction contracts anticipated to be awarded 
to small businesses, to prospective offerors that includes information 
about the agency's policies or practices in complying with FAR 
requirements related to the timely definitization of requests for 
equitable adjustment on construction contracts. Definitization of 
requests for equitable adjustment occurs after the contracting officer 
receives, reviews, and conducts an analysis and audit of the 
information contained in a change order proposal, and results in an 
executed contractual action. The notice must also include data 
regarding the time it took the agency to definitize requests for 
equitable adjustment on construction contracts for the three-year 
period preceding the issuance of the notice.
    FAR 36.211 requires agencies to furnish data for the three fiscal 
years preceding the issuance of the solicitation notice.
    Six respondents submitted public comments in response to the 
proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule. A discussion of the comments received, 
and any changes made to the rule as a result of the public comments are 
provided as follows:

A. Summary of Significant Changes From the Proposed Rule

    The following significant changes from the proposed rule are made 
in the final rule:
(1) Removal of Provision 52.236-XX; Replaced by Solicitation Notice
    The final rule FAR text removes the proposed solicitation provision 
52.236-XX, Notice Regarding Administration of Change Orders for 
Construction. The provision is replaced with an instruction to the 
contracting officer at FAR subpart 5.2, Synopses of Proposed Contract 
Actions. Specifically, 5.205(h), Special situations, requires 
contracting officers to transmit a notice in the solicitation notice on 
the Governmentwide point of entry (GPE) to meet the requirements of 
section 855 (15 U.S. C. 644(w)).
    The final rule FAR text removes the proposed text at FAR subpart 
36.5, Contract Clauses, and replaces it with text at subpart 36.2, 
Special Aspects of Contracting for Construction. Specifically, 
paragraph (b) is added to FAR section 36.211 to coincide with FAR 
5.205(h) and to provide specifics on the information required in the 
solicitation notice. This change will allow agencies more flexibility 
to share their specific guidance or to provide explanatory commentary. 
The text from the removed provision, 52.236-XX, is converted into the 
text for the solicitation notice.
(2) Removal of ``publicly accessible website'' and ``website to be 
determined''; Replaced with ``agency specific, publicly accessible 
website'' and ``follow agency procedures''
    FAR 36.211(b) requires contracting officers to provide a 
description of applicable policies or procedures in the notice or 
through ``an address of an agency-specific, publicly accessible 
website'' containing this information rather than through a provision 
to be filled in or a ``publicly accessible website.'' The agency's past 
performance data will be included in the table format provided at FAR 
36.211(b) or on an agency-specific, publicly accessible website in lieu 
of a ``website to be determined'' as stated in the proposed rule.
    This change will allow agencies more flexibility in how to share 
their specific guidance, and to provide explanatory commentary when 
appropriate.
(3) Clarifications
    The final rule makes revisions at FAR part 43, Contract 
Modifications. Specifically, FAR 43.204(b)(3)(ii), regarding recording 
and maintaining data for definitizing equitable adjustments, is moved 
to paragraph (b)(1)(ii) to clarify that the requirement applies to all 
change orders. This paragraph replaces in two places the phrase ``shall 
use [website to be determined]'' with a reference to agency procedures 
to allow more flexibility in recording and maintaining the required 
data.
(4) Measurement of the Definitization of Equitable Adjustments
    The final rule revises FAR 43.204(b)(1)(ii), previously FAR 
43.204(b)(3)(ii) in the proposed rule, to identify the measurement of 
the definitization of equitable adjustments by including the following 
sentence: ``The definitization of an equitable adjustment begins upon 
receipt of an adequate change order definitization proposal by the 
contracting officer and ends upon the contracting officer's execution 
of a contractual action to definitize the change order.''

B. Analysis of Public Comments

1. Applicability/Authority for Appropriations
    Comment: One respondent stated that NDAA appropriations are not 
applicable to non-DoD agencies. The respondent stated that the law 
should be incorporated into the Defense Federal Acquisition Regulation 
Supplement (DFARS) instead of the FAR.
    Response: Congress often uses the annual NDAA as a vehicle for 
making Governmentwide acquisition law changes. In this instance, 
Congress amended section 15 of the Small Business Act (15 U.S.C. 644) 
in section 855 of the John S. McCain NDAA for FY 2019 (Pub. L. 115-
232). The new requirements are codified at 15 U.S.C. 644(w). Since 
section 15 of the Small Business Act (15 U.S.C. 644) has Governmentwide 
applicability, it is appropriate for the requirements to be implemented 
in the FAR. No changes were made to the final rule as a result of this 
comment.
2. Past Performance Data
    Comment: One respondent stated that the rule should allow agencies 
an opportunity to explain factors contributing to the time required to 
resolve equitable adjustments as the reasons are often beyond the 
Government's control. The respondent stated that historical data 
without context is irrelevant to predicting future time frames and 
otherwise makes the data meaningless.
    Another respondent noted that construction contracts are usually 
administered by individual construction contract administration offices 
near the project site. The respondent stated that collecting agency-
wide past performance data is not indicative of future time frames and 
cannot be correlated to accurately anticipate future conduct of an 
administering office. The respondent stated that the rule should be 
amended to allow agencies an opportunity to account for a contract 
change's specific facts and circumstances; otherwise, the data is 
meaningless.
    A third respondent stated that allowing an ``explanatory 
commentary'' section in either the solicitation or a

[[Page 58229]]

public website for agencies to explain the metric or means used to 
compile or report the types of equitable adjustments included or 
excluded from the metrics would be helpful.
    Response: While primary data without context has value, the 
Councils acknowledge context could enhance the value of historical data 
in some situations and that agencies should have the opportunity to 
provide additional relevant information. The FAR text is revised to 
remove the proposed provision 52.236-XX, Notice Regarding 
Administration of Change Orders for Construction, and replace it with a 
requirement for contracting officers to transmit a notice on the GPE in 
the solicitation notice as required by FAR part 5 to meet the 
requirements of section 855 (15 U.S.C. 644(w)). Additional text is 
added at FAR 5.205(h) to include the requirement for a solicitation 
notice on the GPE. Also, FAR 36.524 is replaced by FAR 36.211 to 
coincide with FAR 5.205(h) and to provide specifics on the information 
required in the solicitation notice (previously in the removed 
provision).
    As previously included in paragraph (b) of the removed provision, 
contracting officers will include in the notice a description of the 
agency's applicable policies and procedures or the address of an 
agency-specific, publicly accessible website containing the information 
that applies to definitization of equitable adjustments for change 
orders under construction contracts. Additionally, the final rule 
revises ``publicly accessible website'' from paragraph (b) of the now 
removed provision to ``an agency-specific, publicly accessible 
website'' at 36.211(b)(1) and (2) to allow more flexibility for 
agencies to share their specific guidance or to provide explanatory 
commentary.
    Also, the proposed rule text at FAR 43.204(b)(3)(ii) regarding 
recording and maintaining data for definitizing requests for equitable 
adjustment is moved to FAR 43.204(b)(1)(ii) to clarify that the 
requirement applies to all change orders. This paragraph replaces in 
two places ``[website to be determined]'' with a reference to ``agency 
procedures'' to allow more flexibility in recording and maintaining the 
required data.
3. Definitizing Equitable Adjustments
a. Equitable Adjustments in General Versus Unpriced Change Orders
    Comment: One respondent stated that it was unclear if the intent 
was to disclose all equitable adjustments in general or only those for 
unpriced change orders. The respondent stated that the rule should be 
limited to disclosing past performance data accounting for the time 
associated with definitization of equitable adjustments for unpriced 
change orders and not the time associated with the resolution of 
equitable adjustments in general. The respondent indicated section 855 
discusses the definitization process but is not applicable to 
undefinitized equitable adjustments and stated that the FAR rule should 
be revised to clearly and precisely reflect the definitization process.
    Response: This final rule implements section 855 of the John S. 
McCain NDAA for FY 2019, which requires notification to prospective 
bidders and offerors regarding administration of change orders for 
construction and does not exclude any type of change order. For 
clarification purposes, the final rule moves the proposed text at 
43.204(b)(3)(ii) to 43.204(b)(1)(ii) to clarify that applicability is 
to all change orders.
b. Incorporate Broader Definition for Clarification
    Comment: One respondent stated that agencies have different 
standards for definitizing equitable adjustments and the FAR does not 
adequately define ``equitable adjustment;'' therefore, any resultant 
data reporting from Federal agencies will differ. The respondent stated 
that the rule should require agencies to incorporate the ``broadest 
possible definition'' in reporting the time to definitize an equitable 
adjustment. A second respondent stated that broadening the definition 
of a request for equitable adjustment to include contract modifications 
that result from either unilateral or bilateral changes would be 
helpful.
    Response: FAR 43.204 and agency supplements provide the standard 
for definitizing equitable adjustments, while this rule adds the 
requirement for providing a notice to prospective bidders or offerors 
regarding definitization of change orders for construction. Also, the 
notice requirements at FAR 36.211(b)(1) (previously at FAR 36.524 and 
the removed provision) allows the agency issuing the solicitation to 
share the policies and procedures that apply to definitization of 
equitable adjustments for change orders under construction contracts. 
With this information all offerors will have the same understanding of 
each solicitation. A broader definition is not necessary considering 
the guidance that is already available in the FAR, agency supplements, 
and agency policies and procedures.
    For clarification purposes, the final rule includes at FAR 
43.204(b)(1)(ii) (previously at FAR 43.204(b)(3)(ii)) the parameter, 
per section 855 of the John S. McCain NDAA for FY 2019, that the 
measurement of definitizing equitable adjustments begins upon receipt 
of an adequate change order definitization proposal by the contracting 
officer and ends upon the contracting officer's execution of a 
contractual action to definitize the change order.
c. Measurement of Change Order Process
    Comment: One respondent stated that measurement of the change order 
process should start when the contractor provides the contracting 
officer with an estimate of cost or provides schedule impacting 
decisions and the cost or changes are validated by the contracting 
officer as being within the scope of the contract.
    Response: This FAR rule implements section 855 of the John S. 
McCain NDAA for FY 2019, which requires that measurement of the change 
order process begin upon receipt of a request for an equitable 
adjustment. For clarification purposes, the final rule identifies at 
FAR 43.204(b)(1)(ii) (previously at FAR 43.204(b)(3)(ii)) the 
measurement of the definitization of requests for equitable adjustment 
by including the following sentence, ``The definitization of an 
equitable adjustment begins upon receipt of an adequate change order 
definitization proposal by the contracting officer and ends upon the 
contracting officer's execution of a contractual action to definitize 
the change order.''
4. Cost/Administrative Burden
a. Collection Process Without Corresponding Benefits
    Comment: One respondent stated that the transparency required by 
the FAR rule places undue costs and administrative burdens on agencies 
without corresponding benefits. The respondent also stated that by 
requiring disclosure of historical past performance data, the FAR rule 
will serve as a deterrent to some small business offerors and may cause 
small business offerors to inflate construction prices to mitigate 
possible lengthy equitable adjustment timeframes.
    Response: The FAR rule is not intended to place undue costs and 
administrative burden on agencies or to deter small business 
contractors. In contrast, the rule provides small business contractors 
with useful

[[Page 58230]]

information that will allow them to make informed decisions and to 
properly plan and prepare proposals, thus providing agencies with 
corresponding benefits. Also, the disclosure of an agency's historical 
past performance data on the timeliness of definitization of equitable 
adjustments will provide potential small business offerors with data 
that can be used in deciding whether to submit a proposal and the 
knowledge to plan financially for possible incurred costs if delays are 
experienced in the definitization of equitable adjustments. As with the 
initial contract, contracting officers are required to negotiate 
equitable adjustments resulting from change orders to ensure the 
Government receives fair and reasonable pricing. Therefore, the final 
rule is unchanged as a result of this comment.
b. Centralized Tracking Website
    Comment: One respondent stated that agencies are unlikely to have a 
centralized tool to track the required past performance data. The 
respondent stated that the rule should not be finalized until adequate 
funding is identified and a tracking tool can be designed, constructed, 
implemented, operated, and maintained.
    Response: The Government does not intend to develop a centralized 
tool to track the past performance data required under this rule. 
Instead, the final rule, at FAR 43.204(b)(1)(ii) (previously at FAR 
43.204 (b)(3)(ii)), replaces ``[website to be determined]'' with 
``follow agency procedures'' to clarify the recording and maintenance 
of data; and revises the next to last sentence of FAR 43.204(b)(1)(ii) 
to state, ``The contracting officer shall ensure the data is recorded 
promptly in accordance with agency procedures.'' Additionally, the data 
(previously required by the removed provision) to be disclosed to 
offerors is required in the table provided at FAR 36.211(b)(2).
5. Support for the Rule
    Comment: Two respondents expressed support for the rule.
    Response: The Councils acknowledge the respondents' support for the 
rule.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Products (Including Commercially 
Available Off-the-Shelf (COTS) Items) or for Commercial Services

    This rule implements a statutory requirement for Federal agencies 
to provide a notice, along with solicitations for construction 
contracts anticipated to be awarded to small businesses, to prospective 
offerors regarding agency policies or practices related to, and agency 
past performance in, complying with FAR requirements related to the 
timely definitization of requests for equitable adjustment resulting 
from change orders under construction contracts.
    This rule does not create new solicitation provisions or contract 
clauses or impact any existing provisions or clauses.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold

    41 U.S.C. 1905 governs the applicability of laws to acquisitions at 
or below the SAT. Section 1905 generally limits the applicability of 
new laws when agencies are making acquisitions at or below the SAT, but 
provides that such acquisitions will not be exempt from a provision of 
law under certain circumstances, including when the Federal Acquisition 
Regulatory Council (FAR Council) makes a written determination and 
finding that it would not be in the best interest of the Federal 
Government to exempt contracts and subcontracts in amounts not greater 
than the SAT from the provision of law. The FAR Council has made a 
determination to apply 41 U.S.C 1905 to acquisitions at or below the 
SAT.

B. Applicability to Contracts for the Acquisition of Commercial 
Products, Including Commercially Available Off-The-Shelf (COTS) Items, 
or for Commercial Services

    41 U.S.C. 1906 governs the applicability of laws to contracts for 
the acquisition of commercial products or services and is intended to 
limit the applicability of laws to those contracts. Section 1906 
provides that if the FAR Council makes a written determination that it 
is not in the best interest of the Federal Government to exempt 
commercial product or commercial service contracts and subcontracts, 
the provision of law will apply to those contracts and subcontracts.
    41 U.S.C. 1907 states that acquisitions of COTS items will be 
exempt from certain provisions of law unless the Administrator for 
Federal Procurement Policy makes a written determination and finds that 
it would not be in the best interest of the Federal Government to 
exempt contracts for the procurement of COTS items.
    The FAR Council did not make a determination to apply 41 U.S.C. 
1906 to acquisitions for commercial products or commercial services. 
The Administrator for Federal Procurement Policy did not make a 
determination to apply 41 U.S.C. 1907 to acquisitions of COTS items.

IV. Expected Impact of the Rule

    This rule requires agencies to provide a notice that includes 
information about the agency's policies or practices in complying with 
FAR requirements related to the timely definitization of equitable 
adjustments under construction contracts, along with solicitations for 
construction contracts anticipated to be awarded to small businesses. 
The notice will provide potential small business offerors with 
information that may be useful to them as they prepare, or decide 
whether to prepare and submit, a proposal in response to an agency's 
solicitation for construction. For example, if an agency has a poor 
history of definitizing equitable adjustments, potential small business 
offerors may reconsider whether to submit a proposal in response to 
that agency's solicitation. Alternately, when preparing their 
proposals, small business offerors may consider the additional costs 
that could be incurred if they were to experience delays in the timely 
definitization of equitable adjustments. Additionally, contracting 
offices and contract administration offices are required to collect 
data on the time required to definitize change orders for construction 
contracts. There will be no cost impact to the public other than a de 
minimis cost to read the notice. The notice is for informational 
purposes and does not require any action on the part of the public.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 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. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993.

VI. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD, GSA, and NASA will 
send the rule and the ``Submission of Federal Rules Under the 
Congressional Review Act'' form to

[[Page 58231]]

each House of the Congress and to the Comptroller General of the United 
States. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. The Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget has 
determined that this is not a major rule under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a final regulatory flexibility 
analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The FRFA is summarized as follows:

    This rule is necessary to implement section 855 of the John S. 
McCain National Defense Authorization Act (NDAA) for Fiscal Year 
(FY) 2019 (Pub. L. 115-232, codified at 15 U.S.C. 644(w)). Section 
855 requires Federal agencies to provide a notice, along with 
solicitations for construction contracts anticipated to be awarded 
to small businesses, to prospective offerors regarding agency 
policies or practices in complying with FAR requirements related to 
the timely definitization of requests for equitable adjustment on 
construction contracts. The notice must also include data on the 
amount of time it took the agency to definitize requests for 
equitable adjustment on construction contracts during the three-year 
period preceding the issuance of the notice. FAR 36.211 requires 
agencies to furnish data for the three fiscal years preceding the 
issuance of the solicitation notice.
    The objective of this rule is to provide contractors with 
information about an agency's past performance in definitizing 
equitable adjustments under construction contract change orders as 
required by section 855 of the NDAA for FY 2019.
    There were no significant issues raised by the public comments 
in response to the initial regulatory flexibility analysis.
    DoD, GSA, and NASA do not expect this change to have a 
significant economic impact on a substantial number of small 
entities because this rule is aimed primarily at Federal agencies, 
requiring them to provide a notice of their past performance on 
definitizing equitable adjustments for change orders under 
construction contracts. The notice will provide potential small 
business offerors with information that may be useful to them as 
they prepare, or decide whether to prepare, and submit a proposal in 
response to an agency's solicitation for construction. For example, 
if an agency has a poor history of definitizing equitable 
adjustments, potential small business offerors may reconsider 
whether to submit a proposal in response to that agency's 
solicitation. Alternately, when preparing their proposals, small 
business offerors may consider the additional costs that could be 
incurred if they were to experience delays in the timely 
definitization of equitable adjustments.
    An analysis of the Federal Procurement Data System reveals that 
an average of 2,280 unique entities per year were awarded 
construction contracts during FY 2017, FY 2018, and FY 2019. Of 
those, 1,797 were small entities. The number of construction 
contracts awarded in FY 2017, FY 2018, and FY 2019 averaged 4,349 
per year, of which 3,323 were awarded to small entities. 
Additionally, during these same years, an average of 3,659 
construction-related task orders were awarded each year to 
approximately 1,054 unique entities; 2,991 of those task orders were 
awarded to 838 small entities. On average, over FY 2017, FY 2018, 
and FY 2019, 6,422 modifications were issued each year to 
approximately 1,542 entities for change orders or definitization of 
change orders under construction contracts. Of those, approximately 
3,702 modifications were issued to 1,125 small entities.
    This final rule does not include any new reporting, 
recordkeeping or other compliance requirements for small entities.
    There are no known significant alternative approaches that would 
accomplish the stated objectives of the applicable statute.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VIII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 48 CFR Parts 5, 12, 19, 36, and 43

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 12, 19, 36, and 
43 as set forth below:

0
1. The authority citation for 48 CFR parts 5, 12, 19, 36, and 43 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 5--PUBLICIZING CONTRACT ACTIONS

0
2. Amend section 5.205 by adding paragraph (h) to read as follows:


5.205   Special situations.

* * * * *
    (h) Notice regarding timely definitization of equitable adjustments 
for change orders under construction contracts. When the contracting 
officer anticipates award of a contract to a small business pursuant to 
a solicitation for construction, the contracting officer must transmit 
in the solicitation notice on the GPE information regarding 
definitization of equitable adjustments for change orders under 
construction contracts (see 36.211).

PART 12--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

0
3. Amend section 12.503 by adding paragraph (a)(10) to read as follows:


12.503   Applicability of certain laws to Executive agency contracts 
for the acquisition of commercial products and commercial services.

    (a) * * *
    (10) 15 U.S.C. 644(w), Solicitation Notice Regarding Administration 
of Change Orders for Construction (see 36.211).
* * * * *

PART 19--SMALL BUSINESS PROGRAMS

0
4. Add section 19.502-11 to read as follows:


19.502-11  Solicitation notice regarding administration of change 
orders for construction.

    See 36.211 for the requirement to provide a notice to offerors 
regarding definitization of equitable adjustments for change orders 
under construction contracts.

PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
5. Revise section 36.211 to read as follows:


36.211   Distribution of advance notices and solicitations.

    (a) Advance notices and solicitations should be distributed to 
reach as many prospective offerors as practicable. Contracting officers 
may send notices and solicitations to organizations that maintain, 
without charge to the public, display rooms for the benefit of 
prospective offerors, subcontractors, and material suppliers. If 
requested by such organizations, this may be done for all or a stated 
class of construction projects on an annual or semiannual basis. 
Contracting officers may determine the geographical extent of 
distribution of advance notices and solicitations on a case-by-case 
basis.
    (b) As required by 15 U.S.C. 644(w), the contracting officer shall 
transmit to the Governmentwide point of entry (GPE) a notice (see 
5.205(h), in solicitation notices posted at the GPE for construction 
contracts anticipated to be awarded to a small business pursuant to 
part 19. The notice shall include certain information regarding the 
agency's

[[Page 58232]]

definitization of equitable adjustments for change orders under 
construction contracts. This information includes:
    (1) A description of agency policies or procedures, in addition to 
that outlined in FAR 43.204, that apply to definitization of equitable 
adjustments for change orders under construction contracts. This 
description may be provided in a notice by including an address of an 
agency-specific, publicly accessible website containing this 
information. If no agency-specific additional policies and procedures 
exist, the notice shall include a statement to that effect.
    (2) Data on the agency's past performance, for the prior 3 fiscal 
years, regarding the time required to definitize equitable adjustments 
for change orders under construction contracts (see 43.204). If fewer 
than 3 fiscal years of data are available, agencies shall provide data 
for the number of fiscal years that are available. Data shall be 
provided in the solicitation notice as shown in the following table, or 
provide the address of an agency-specific, publicly accessible website 
containing this information. An adequate change order definitization 
proposal shall contain sufficient information to enable the contracting 
officer to conduct meaningful analyses and audits of the information 
contained in the proposal.

                       Table 1 to Paragraph (b)(2)
------------------------------------------------------------------------
                                                 Number of change order
    Time to definitize after receipt of an       proposals definitized
adequate change order definitization proposal      under construction
        under  construction contracts                  contracts
------------------------------------------------------------------------
30 days or less..............................  .........................
31 to 60 days................................  .........................
61 to 90 days................................  .........................
91 to 180 days...............................  .........................
181 to 365 days..............................  .........................
366 or more days.............................  .........................
After completion of contract performance via   .........................
 a contract modification addressing all
 undefinitized equitable adjustments received
 during contract performance.
------------------------------------------------------------------------


0
6. Revise section 36.500 to read as follows:


36.500  Scope of subpart.

    (a) This subpart prescribes provisions and clauses for insertion in 
solicitations and contracts for--
    (1) Construction; and
    (2) Dismantling, demolition, or removal of improvements contracts.
    (b) Provisions and clauses prescribed elsewhere in the Federal 
Acquisition Regulation (FAR) shall also be used in such solicitations 
and contracts when the conditions specified in the prescriptions for 
the provisions and clauses are applicable.

PART 43--CONTRACT MODIFICATIONS

0
7. Amend section 43.204 by redesignating paragraph (b)(1) as paragraph 
(b)(1)(i) and adding paragraph (b)(1)(ii) to read as follows:


43.204   Administration.

    (b) * * *
    (1)(i) * * *
    (ii) Agencies shall, in accordance with agency procedures, record 
and maintain data regarding the time required to definitize equitable 
adjustments associated with change orders for construction. The 
definitization of an equitable adjustment begins upon receipt of an 
adequate change order definitization proposal by the contracting 
officer, and ends upon the contracting officer's execution of a 
contractual action to definitize the change order. The contracting 
officer shall ensure the data is recorded promptly in accordance with 
agency procedures. See 36.211(b).
* * * * *
[FR Doc. 2022-20341 Filed 9-22-22; 8:45 am]
BILLING CODE 6820-EP-P