Overview
FAR Subpart 36.1 establishes the foundational framework for the acquisition of construction and architect-engineer (A-E) services. It defines essential industry terminology, dictates the precedence of Part 36 over other FAR parts in specific scenarios, and outlines federal policies regarding sustainability, labor agreements, and project delivery methods.
Key Rules
- Regulatory Precedence: When requirements in FAR Part 36 conflict with other FAR parts, Part 36 takes precedence for construction and A-E service acquisitions.
- Contracting Methods:
- Construction: Sealed bidding is the default for domestic construction if specific conditions are met (per FAR 6.401).
- Architect-Engineer: Must be acquired via negotiation and source selection procedures defined in Subpart 36.6 (the Brooks Act).
- Mixed Work: Contracts involving both construction and supplies/services must use clauses applicable to the "predominant part" of the work or be divided into distinct parts with applicable clauses for each.
- Sustainable Building Mandates:
- New construction/modernization projects exceeding 25,000 gross square feet must comply with the Council on Environmental Quality’s (CEQ) Guiding Principles for Sustainable Federal Buildings.
- Agencies must divert at least 50% of non-hazardous construction and demolition debris from landfills.
- Project Labor Agreements (PLAs): PLAs are mandatory for Federal construction projects with an estimated cost of $35 million or more, unless a specific exception applies.
Responsibilities
- Contracting Officers:
- Must determine the appropriate delivery method (e.g., Design-Bid-Build vs. Two-Phase Design-Build).
- Are responsible for conducting proactive market research for projects $\ge$ $35M to understand the availability of union and non-union contractors and local labor conditions.
- Must ensure record drawings (as-builts) are submitted by contractors to show the actual completed work.
- Federal Agencies:
- Required to implement high-performance sustainable practices in design, renovation, and deconstruction.
- Must identify alternatives to renovation to reduce deferred maintenance costs and protect the viability of historic buildings.
- Architect-Engineer (A-E) Firms: Responsible for the "Design" phase, which includes defining technical systems, producing specifications/drawings, and preparing construction cost estimates.
- Contractors/Subcontractors: Obligated to provide "record drawings" showing the structure as actually completed under the contract.
Practical Implications
- Conflict Resolution: Contractors and COs should be aware that Part 36 is the "gold standard" for construction. If a general FAR clause (e.g., from Part 15) conflicts with a Part 36 requirement during a construction acquisition, Part 36 governs.
- Sustainability Costs: Bidders must account for the costs of "high-performance" requirements and the 50% waste diversion mandate in their proposals, as these are regulatory requirements for large-scale projects.
- Shift in Delivery Methods: While Design-Bid-Build is "traditional," the FAR encourages Two-Phase Design-Build for public buildings if the CO determines it is appropriate. This requires contractors to be prepared for a two-step proposal process (qualifications first, then detailed technical/price proposals).
- Labor Relations: For projects over $35M, the mandatory PLA requirement significantly changes the landscape for non-union contractors, who may need to coordinate with labor unions to participate in the project.