Overview
FAR Part 36 prescribes the specialized policies and procedures for contracting construction and architect-engineer (A-E) services. It establishes unique delivery methods—such as Design-Bid-Build, Design-Build, and the Brooks Act qualifications-based selection—while prioritizing environmental sustainability, project labor agreements, and rigorous cost estimation.
Key Rules
- Precedence: When Part 36 requirements are inconsistent with other FAR parts, Part 36 takes precedence for construction and A-E acquisitions.
- Independent Government Estimate (IGE): An IGE must be prepared for every contract and modification expected to exceed the Simplified Acquisition Threshold (SAT). The IGE is strictly confidential and is not disclosed to offerors.
- Disclosure of Magnitude: Solicitations must state the project's magnitude using specific price ranges (e.g., "Between $1,000,000 and $5,000,000") rather than specific dollar amounts.
- A-E Selection (The Brooks Act): Architect-Engineer services are acquired via negotiation based on demonstrated competence and qualifications, rather than a price-based competition.
- Design-Build Conflict: A firm that designs a project, including its subsidiaries and affiliates, is generally prohibited from awarded the construction contract for that same project.
- Pricing Methods: Firm-fixed-price (FFP) is the preferred contract type, typically priced on a lump-sum or unit-price basis. Cost-reimbursement contracts are heavily restricted.
- Project Labor Agreements (PLAs): For Federal construction projects valued at $35 million or more, agencies are generally required to use a project labor agreement.
- Sustainability: New construction over 25,000 gross square feet must meet Federal sustainable design principles, and at least 50% of non-hazardous debris must be diverted from landfills.
Responsibilities
- Contracting Officers (CO):
- Determines whether to use sealed bidding or negotiation.
- Ensures IGEs are prepared and kept confidential.
- Conducts preconstruction orientations and conferences.
- Evaluates the need for liquidated damages.
- Validates that A-E selection is based on the recommendation of evaluation boards.
- Agencies/Heads of Contracting Activity:
- Must approve any waiver to allow an A-E firm to bid on a construction project they designed.
- Responsible for implementing high-performance sustainable building practices.
- Must approve the concurrent performance of cost-type and fixed-price contracts at the same site.
- A-E Evaluation Boards:
- Review and appraise the qualifications of A-E firms based on selection criteria.
- Recommend the most highly qualified firms to the selection authority.
- Contractors:
- Responsible for site inspection and examining Government-provided data (e.g., boring logs).
- Must provide professional superintendence and maintain "record drawings" of actual construction.
Practical Implications
- Risk Management through Site Visits: Because Part 36 emphasizes the "Site Investigation and Conditions Affecting the Work" clause, contractors who fail to inspect a site during the solicitation phase often lose "Differing Site Conditions" claims if the issue was "reasonably foreseeable" upon inspection.
- Selection vs. Bidding: Firms pursuing A-E work must focus their proposals on technical expertise and past performance rather than low cost, as the Government cannot even discuss price until the most qualified firm is selected.
- The "Magnitudes" Filter: Small and mid-sized contractors use the "Disclosure of Magnitude" ranges to quickly determine if a project fits their bonding capacity and operational scale without needing the exact internal Government budget.
- Change Order Speed: Recent updates (36.211) require agencies to be transparent about how long they take to definitize change orders, providing contractors with data to assess the financial risk of carrying costs for extra work.