[Federal Register Volume 83, Number 174 (Friday, September 7, 2018)]
[Proposed Rules]
[Pages 45384-45396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18309]


-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 801, 825, 836, 842, 846, 852 and 853

RIN 2900-AQ18


VA Acquisition Regulation: Construction and Architect-Engineer 
Contracts

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
and update its VA Acquisition Regulation (VAAR) in phased increments to 
revise or remove any policy superseded by changes in the Federal 
Acquisition Regulation (FAR), to remove procedural guidance internal to 
VA into the VA Acquisition Manual (VAAM), and to incorporate any new 
agency specific regulations or policies. These changes seek to 
streamline and align the VAAR with the FAR and remove outdated and 
duplicative requirements and reduce burden on contractors. The VAAM 
incorporates portions of the removed VAAR as well as other internal 
agency acquisition policy. VA will rewrite certain parts of the VAAR 
and VAAM, and as VAAR parts are rewritten, will publish them in the 
Federal Register. VA will combine related topics, as appropriate. In 
particular, this rulemaking revises VAAR concerning Construction and 
Architect-Engineer Contracts, as well as affected parts covering the 
Department of Veterans Affairs Acquisition Regulations System, Foreign 
Acquisition, Contract Administration and Audit Services, Quality 
Assurance, Solicitation Provisions and Contract Clauses, and Forms.

DATES: Comments must be received on or before November 6, 2018 to be 
considered in the formulation of the final rule.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 
273-9026 (this is not a toll-free number). Comments should indicate 
that they are

[[Page 45385]]

submitted in response to ``RIN 2900-AQ18--VA Acquisition Regulation: 
Construction and Architect-Engineer Contracts.'' Copies of comments 
received will be available for public inspection in the Office of 
Regulation Policy and Management, Room 1063B, between the hours of 8:00 
a.m. and 4:30 p.m., Monday through Friday (except holidays). Please 
call (202) 461-4902 for an appointment. (This is not a toll-free 
number.) In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System (FDMS) at 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Ricky Clark, Senior Procurement 
Analyst, Procurement Policy and Warrant Management Services, 003A2A, 
425 I Street NW, Washington, DC 20001, (202) 632-5276. (This is not a 
toll-free number.)

SUPPLEMENTARY INFORMATION: 

Background

    This rulemaking is issued under the authority of the Office of 
Federal Procurement Policy (OFPP) Act which provides the authority for 
an agency head to issue agency acquisition regulations that implement 
or supplement the FAR.
    VA is proposing to revise the VAAR to add new policy or regulatory 
requirements and to remove any redundant guidance and guidance that is 
applicable only to VA's internal operating processes or procedures. 
Codified acquisition regulations may be amended and revised only 
through rulemaking. All amendments, revisions, and removals have been 
reviewed and concurred with by VA's Integrated Product Team of agency 
stakeholders.
    The VAAR uses the regulatory structure and arrangement of the FAR 
and headings and subject areas are consistent with the FAR content. The 
VAAR is divided into subchapters, parts (each of which covers a 
separate aspect of acquisition), subparts, and sections.
    The Office of Federal Procurement Policy Act, as codified in 41 
U.S.C. 1707, provides the authority for the Federal Acquisition 
Regulation and for the issuance of agency acquisition regulations 
consistent with the FAR.
    When Federal agencies acquire supplies and services using 
appropriated funds, the purchase is governed by the FAR, set forth at 
title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 
53, and the agency regulations that implement and supplement the FAR. 
The VAAR is set forth at title 48 CFR, chapter 8, parts 801 to 873.

Discussion and Analysis

    VA proposes to make the following changes to the VAAR in this phase 
of its revision and streamlining initiative. For procedural guidance 
cited below that is proposed to be deleted from the VAAR, each section 
cited for removal has been considered for inclusion in VA's internal 
agency operating procedures in accordance with FAR 1.301(a)(2). 
Similarly, delegations of authorities that are removed from the VAAR 
will be included in the VAAM as internal agency guidance. The VAAM is 
being created in parallel with these revisions to the VAAR and is not 
subject to the rulemaking process as they are internal VA procedures 
and guidance. Therefore, the VAAM will not be finalized until 
corresponding VAAR parts are finalized, and the VAAM is not yet 
available on line.

VAAR Part 801--Department of Veterans Affairs Acquisition Regulation 
System

    This proposed rule contains existing information collection 
requirements. The proposed rule results in multiple actions affecting 
these information collections, including outright removal of the 
information collection.
    In 801.106, OMB approval under the Paperwork Reduction Act, we 
propose to amend 801.106 table columns titled ``48 CFR part or section 
where identified and described,'' and ``Current OMB control number.'' 
We propose to remove the reference to 852.236-84, Schedule of Work 
Progress, and discontinue the associated corresponding OMB Control 
Number 2900-0422 as the information is adequately covered in agency 
specifications and its use in a clause is not required or appropriate. 
For access to agency specifications where such information is 
adequately covered, see the VA Technical Information Library (TIL), 
VA's source for Electronic Design and Construction Information, at 
https://www.cfm.va.gov/TIL/, including Master Specification Division 
01, General Requirements: 01 32 16.01, Architectural and Engineering 
CPM Schedules; 01 32 16.13, Network Analysis Schedules; 01 16.15, 
Project Schedules (Small Projects--Design/Bid/Build); 01 32 16.16, 
Network Analysis Schedules (Design-Build Only); and, 01 32 16.17, 
Project Schedules (Small Projects--Design/Build).
    In 801.106, in reference to table described, we propose to remove 
the reference to 852.236-89, Buy American Act, and discontinue the 
associated corresponding OMB Control Number 2900-0622 as the clause is 
being removed as set forth in the preamble when describing actions 
under VAAR part 852 as it duplicates FAR clauses and is unnecessary.
    In 801.106, in reference to the table described, we propose to 
remove the reference to 852.236-91, Special Notes, and discontinue the 
associated corresponding OMB Control Number 2900-0623. Paragraph (a) of 
the clause is already covered via required System for Award Management 
(SAM) representations and certifications. Paragraphs (b), (c) and (d) 
are addressed in Section 01 00 00, General Requirements, contained in 
all construction contract specifications (reference the VA Office of 
Construction and Facilities Management, Technical Information Library 
(TIL), VA Numbered Standards for Construction, PG-18-1, Master 
Construction Specifications, Division 01--General Requirements). 
Paragraph (e), which references claims by the contractor for delay 
attributed to unusually severe weather under FAR 52.249-14, Excusable 
Delays, is governed by the Network Analysis System specifications--
Section 01 32 16.13, Network Analysis Schedules--Major Projects; 01 32 
16.15, Project Schedules (Small Projects Design-Bid-Build); 01 32 
16.16, (Network Analysis System (Design-Build Only); or 01 32 16.17, 
Project Schedule (Small Projects Design-Build), as applicable, which 
provide details of the requirements the contractor must follow to 
justify time extensions. VA internal procedures related to how 
contracting officers and Government Resident Engineers or technical 
reviewers should analyze contractor data and which records to review to 
support such claims for time extensions due to unusually severe 
weather, not having a significant effect beyond the internal operating 
procedures of the VA, would be moved to the VAAM.

VAAR Part 825--Foreign Acquisition

    We propose to revise the authority citations under part 825 to 
include a reference to 41 U.S.C. 1702 which addresses the acquisition 
planning and management responsibilities of Chief Acquisition Officers 
and Senior Procurement Executives, to include implementation of unique 
procurement policies, regulations and standards of the executive 
agency.
    We propose to remove subpart 825.2, Buy American Act--Construction 
Materials, and the associated prescribed clauses under subpart 825.11, 
Solicitation Provisions and Contract Clauses, as it is duplicative of 
the FAR. Clause 852.236-89, Buy American Act, along with its Alternate 
I and II, is

[[Page 45386]]

proposed for removal as set forth in VAAR part 852 of the preamble. The 
clause and its alternates are referenced in a table in 825.1102, 
Acquisition of construction. As the clause is proposed for removal, 
this table which prescribes the use of the clause is also proposed for 
removal. In accordance with FAR drafting standards and the requirement 
in FAR 1.304(b)(1) that agency acquisition regulations shall not 
unnecessarily repeat, paraphrase, or otherwise restate material 
contained in the FAR, these subparts are therefore proposed for 
removal.

VAAR Part 836--Construction and Architect-Engineer Contracts

    We propose to revise the authority citations under part 836 to 
include a reference to 41 U.S.C. 1121(c)(3) and 1303(a)(2), which is 
from Title 41, Public Contracts, and speaks to the authority of an 
executive agency under another law to prescribe policies, regulations, 
procedures, and forms for procurement that are subject to the authority 
conferred in the cited section, as well as other sections of Title 41 
as shown therein. 41 U.S.C. 1303(a)(2) is added to reflect VA's 
authority as an executive agency to issue regulations that are 
essential to implement Governmentwide policies and procedures in the 
agency, as well as to issue additional policies and procedures required 
to satisfy the specific needs of the VA.
    We propose to revise the authority citations under part 836 to 
include a reference to 41 U.S.C. 1702 which addresses the acquisition 
planning and management responsibilities of Chief Acquisition Officers 
and Senior Procurement Executives, to include implementation of unique 
procurement policies, regulations and standards of the executive 
agency.
    In 836.202, Specifications, we propose to remove paragraphs (a) and 
(b) as internal procedural guidance, and to redesignate and renumber it 
to 836.202-70 to indicate that it is a VA supplement to FAR 36.202. The 
title would be revised from ``Specifications'' to ``Specifications--use 
of equal products'' to reflect the topic that fits intelligibly under 
this section of the FAR. The existing paragraph (c) would be revised to 
reflect that use of clause 852.236-90, Restriction on Submission and 
Use of Equal Products, in solicitations and contracts requires approval 
of the justification documentation required by FAR 11.105, Items 
peculiar to one manufacturer. The paragraph reference to (c) under this 
section would be removed as the VAAR is being supplemented and only one 
paragraph will be reflected which would be unnumbered and unlettered. 
The existing VAAR language which is proposed for revision with this 
rule is necessary as the FAR speaks to ``brand name or equal'' and the 
purpose of the VA's clause is to be clear that when the VA enters 
products for items peculiar to one manufacturer (brand name), ``or 
equal'' products are not permissible substitutes.
    In 836.203, Government estimate of construction costs, we propose 
to renumber and retitle the section to 836.203-70, Protection of the 
independent government estimate--sealed bid, and would revise it to 
more specifically clarify VA procedures to protect the independent 
government estimate in sealed bid acquisitions when bid openings are 
held. This would also provide policy regarding marking the Independent 
Government Estimate (IGE) as ``For Official Use Only (FOUO)'' as well 
as procedures for filing the document and later removing the protective 
marking after a public bid opening.
    In 836.204, Disclosure of the magnitude of construction projects, 
we propose to revise the estimated price ranges to provide a better 
measure for contractors to gauge estimated construction costs for 
projects of the National Cemetery Administration and the Office of 
Construction and Facilities Management.
    In 836.206, Liquidated damages, we propose to remove the entire 
section since the subject matter is adequately covered in the FAR.
    In 836.209, Construction contracts with architect-engineer firms, 
we propose to remove the entire section as internal procedures of VA 
not having a significant effect beyond the internal operating 
procedures of the VA (see FAR 1.301(b)), and which would be moved to 
the VAAM.
    In 836.213, Special procedures for sealed bidding in construction 
contracting, we propose to remove the section title as the underlying 
subsections are proposed for removal.
    We propose to remove 836.213-4, Notice of award, as internal 
procedures of VA not having a significant effect beyond the internal 
operating procedures of the VA (see FAR 1.301(b)), and which would be 
moved to the VAAM.
    We propose to remove 836.213-70, Notice to proceed, as procedural 
information internal to VA which would be moved to the VAAM.
    We propose to revise 836.500, Scope of subpart, to remove 
paragraphs (b) and (c) which duplicate the authority to use other 
clauses and provisions as already provided for in FAR 36.500. We 
propose to redesignate paragraph (a) as an unnumbered paragraph in 
keeping with FAR Drafting Guidelines and formatting style.
    We propose to revise 836.501, Performance of work by the 
contractor, to make minor edits and to add a reference to VAAR subpart 
819.70, which implements the Veterans First Contracting Program.
    In 836.513, Accident prevention, we propose to remove the entire 
section since the prescribed clause is duplicative of coverage in FAR 
clause 52.236-1, Accident Prevention.
    We propose to revise 836.521, Specifications and drawings for 
construction, only to make minor edits for capitalization.
    We propose to remove 836.570, Correspondence, as the clause it 
prescribes 852.236-76, Correspondence, is proposed for removal. The 
subject matter will be addressed more appropriately in a ``Notice to 
Proceed'' letter to the contractor from the contracting officer. 
Therefore, the clause and its prescription are unnecessary.
    We propose to remove 836.571, Reference to ``standards,'' since the 
clause it prescribes 852.236-77, Reference to ``Standards'', is 
proposed for removal. The subject matter is addressed in the VA Master 
Specifications (located at: https://www.cfm.va.gov/til/), and the 
clause and therefore its prescription is unnecessary.
    In 836.572, Government supervision, we propose to remove the entire 
section and redesignate the numbering and placement to the more 
appropriate VAAR part 842, Contract Administration and Audit Services, 
by adding a new section 842.204, Contract clause for Government 
construction contract administration. The clause would be therefore 
renumbered and revised accordingly.
    In 836.573, Daily report of workers and materials, we propose to 
amend the title of the section and report to ``Contractor production 
report,'' and would prescribe a revised clause 852.236-79, Contractor 
Production Report.
    We propose to revise 836.574, Subcontracts and work coordination, 
only to make minor edits for capitalization.
    We propose to remove 836.575, Schedule of work progress, since the 
subject matter of the prescribed clause 852.236-84, Schedule of Work 
Progress, is addressed in the VA Master Specifications, Division 01, 
General Requirements: 01 32 16.01, Architectural and Engineering CPM

[[Page 45387]]

Schedules; 01 32 16.13, Network Analysis Schedules; 01 16.15, Project 
Schedules (Small Projects--Design/Bid/Build); 01 32 16.16, Network 
Analysis Schedules (Design-Build Only); and, 01 32 16.17, Project 
Schedules (Small Projects--Design/Build). The clause is proposed for 
removal and therefore its prescription would be unnecessary.
    We propose to remove 836.576, Supplementary labor standards 
provisions, since the subject matter of the prescribed clause 852.236-
85, Supplementary Labor Standards Provisions, is addressed in FAR 
clauses 52.222-6, Construction Wage Rate Requirements (formerly known 
as Davis-Bacon Act) and 52.222-8, Payrolls and Basic Records. The 
clause is proposed for removal and therefore its prescription would be 
unnecessary.
    We propose to remove 836.577, Workers' compensation, which 
prescribes clause 852.236-86, Workers' Compensation. The clause is 
unnecessary since it merely cites a Public Law regarding applicability 
of States' workers' compensation laws. The VAAR is not required to cite 
individual States' workers' compensation laws to make them applicable 
to companies performing work in individual states. The clause is 
proposed for removal and therefore its prescription would be 
unnecessary.
    We propose to remove 836.579, Special Notes, which prescribes the 
clause at 852.236-91, Special Notes. As stated under VAAR part 801 in 
the preamble of this proposed rule, the clause's paragraph (a) is 
already covered via required System for Award Management (SAM) 
representations and certifications. Paragraphs (b), (c) and (d) are 
addressed in Section 01 00 00, General Requirements, contained in all 
construction contract specifications (reference the VA Office of 
Construction and Facilities Management, Technical Information Library 
(TIL), VA Numbered Standards for Construction, PG-18-1, Master 
Construction Specifications, Division 01--General Requirements). And, 
paragraph (e), which references claims by the contractor for delay 
attributed to unusually severe weather under FAR 52.249-14, Excusable 
Delays, is governed by the Network Analysis System specifications--
Section 01 32 16.13, Network Analysis System; 01 32 16.13, Project 
Schedules (Small Projects Design-Bid-Build); 01 32 16.16, (Network 
Analysis System (Design-Build Only); or 01 32 16.17, Project Schedule 
(Small Projects Design-Build), as applicable, which provide details of 
the requirements the contractor must follow to justify time extensions. 
VA internal procedures related to how contracting officers and 
Government Resident Engineers or technical reviewers should analyze 
contractor data and which records to review to support such claims for 
time extensions due to unusually severe weather, not having a 
significant effect beyond the internal operating procedures of the VA, 
would be moved to the VAAM. The clause is proposed for removal and 
therefore its prescription as contained in this section would be 
unnecessary.
    We propose to add 836.580, Notice to bidders--additive or deductive 
bid line items, and a prescription requiring the contracting officer to 
insert the provision 852.236-92, Notice to Bidders--Additive or 
Deductive Bid Line Items, in invitations for bids when the contracting 
officer determines that funds may not be available for all the desired 
construction features at contract award.
    We propose to remove 836.602, Selection of firms for architect-
engineer contracts. Previously there was no text under this heading/
title. As all sections under this are now proposed for removal, no 
heading/title would be required.
    We propose to remove 836.602-1, Selection criteria, as internal 
procedural information which will be revised and moved to the VA 
Acquisition Manual.
    We propose to remove 836.602-2, Evaluation boards; 836.602-4, 
Selection authority; and 836.602-5, Short selection process for 
contracts not to exceed the simplified acquisition threshold, as 
internal procedural information which will be revised and moved to the 
VA Acquisition Manual.
    We propose to revise 836.603, Collecting data on and appraising 
firms' qualifications. The title would be revised to correct a typo and 
the text would be revised to include a Veterans Benefits Administration 
point of contact for filing and maintaining Standard Form (SF) 330 
Files as required by the FAR.
    In 836.606, Negotiations, we propose to revise the section in its 
entirety to remove internal agency procedural guidance in section 
836.606-70, General, as unnecessary, and to remove the title, 
``General,'' by redesignating section 836.606-71, Architect-Engineer's 
proposal, to 836.606-70, and retitling it to read ``Architect-Engineer 
firms' proposal.'' We propose to revise the text which requires use of 
the VA Form 6298, Architect-Engineer Fee Proposal, which has been 
updated with the new form number and updating FAR citation references 
and thresholds. This form is used for the submission of a contractor's 
proposal and supporting cost data from the selected firm during 
negotiation of an A-E contract for design services estimated at $50,000 
or more. And, we propose to change the word ``must'' to ``shall'' when 
requiring the use of the form as prescribed in this section.
    In 836.606-72, Contract price, we propose to remove the section in 
its entirety and move it to the companion VA Acquisition Manual as 
internal operating procedures of the VA.
    We propose to redesignate and revise 836.606-73, Application of 6 
percent architect-engineer fee limitation, to section 836.606-71, and 
retain the same title, ``Application of 6 percent architect-engineer 
fee limitation,'' to place all text now under section 836.606 in 
sequential subsections. 836.606-71, Application of 6 percent architect-
engineer fee limitation, would provide policy explaining when the 
limitation applies, what costs the 6 percent fee limitation does and 
does not cover, and delete use of VA Form 10-1193, Application for 
Health Care Facility Program, and VA Form 10-6238, EMIS Construction 
Program Estimate Worksheet. The forms proposed for deletion are not 
required for use in this instance.
    We propose to add subpart 836.70--Unique Forms for Contracting for 
Construction, Architect-Engineer Services, and Dismantling, Demolition, 
or Removal of Improvements, and the sections falling under that 
subpart--836.7000, Scope of subpart; and 836.7001, Unique construction 
and architect-engineer services forms. This would prescribe forms 
contracting officers may use for construction, architect-engineer 
services or dismantling, demolition or removal of improvements.
    In 836.7000, Scope of subpart, it sets forth the requirements for 
use of VA unique forms.
    In the new proposed 836.7001, Unique construction and architect-
engineer services forms, we propose to add the following forms as 
prescribed elsewhere in the VAAR or as reflected in the individual 
prescriptions--
    In paragraph (a) we propose to add information referencing VA Form 
6298, Architect-Engineer Fee Proposal (see 853.236-70), and pointing 
information to the prescription. VA Form 6298, Architect-Engineer Fee 
Proposal, shall be used as prescribed in 836.606-71.
    In paragraph (b) we propose to add the prescription for VA Form 
2138, Order for Supplies or Services (Including Task Orders for 
Construction or A-E Services) (see 853.236-71). VA Form 2138, Order for 
Supplies or Services (Including Task Orders for

[[Page 45388]]

Construction or A-E Services), may be used for ordering supplies or 
services, including task orders for Construction or A-E services, to 
include dismantling, demolition, or removal of improvements.
    In paragraph (c) we propose to add information referencing VA Form 
10101, Contractor Production Report (see 853.236-72), and pointing 
information to the prescription. Contractors may use VA Form 10101, 
Contractor Production Report, or a contractor generated form containing 
the same type of information contained in the form, as required by 
836.573 which prescribes the clause at 852.236-79, Contractor 
Production Report.

VAAR Part 842--Contract Administration and Audit Services

    We propose to revise the authority citations under part 842 to 
include a reference to 41 U.S.C. 1702 which addresses the acquisition 
planning and management responsibilities of Chief Acquisition Officers 
and Senior Procurement Executives, to include implementation of unique 
procurement policies, regulations and standards of the executive 
agency.
    We propose to add coverage under VAAR subpart 842.2, Contract 
Administration Services, and 842.271, Contract clause for Government 
construction contract administration, to prescribe clause 852.242-70, 
Government Construction Contract Administration, that would describe 
contract administration functions to be delegated under construction 
contracts that exceed the micro-purchase threshold for construction. It 
would describe the role of the designated contracting officer 
performing contract administration, as well as certain functions that 
are delegated to VA resident engineers, if assigned. It also contains 
some language found under the previous clause, 852.236-78, Government 
Supervision. The information more properly falls under FAR part 42 and 
the VAAR supplement, so the new clause number more properly follows FAR 
drafting conventions, to include placing the prescription in the same 
part where the clause itself is located.

VAAR Part 846--Quality Assurance

    We propose to revise the part 846 authorities to replace the 38 
U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition 
planning and management responsibilities of Chief Acquisition Officers 
and Senior Procurement Executives, to include implementation of unique 
procurement policies, regulations and standards of the executive 
agency. We also propose to add 41 U.S.C. 1121(c)(3) which is from Title 
41, Public Contracts, Positive Law codification that speaks to the 
authority of an executive agency under another law to prescribe 
policies, regulations, procedures, and forms for procurement that are 
subject to the authority conferred in the cited section, as well as 
other sections of Title 41 as shown therein.
    In 846.312, Construction contracts, which prescribes clause 
852.236-74, Inspection of construction, we propose to remove the entire 
section since VA Master Specifications provide the requirements for 
performing inspections. The clause is proposed for removal and 
therefore its prescription would be unnecessary.

VAAR Part 852--Solicitation Provisions and Contract Clauses

    In 852.236-71, Specifications and Drawings for Construction, we 
propose to amend the clause to place with the contractor the 
responsibility for checking all drawings furnished immediately upon 
receipt, and comparing them and verifying figures before laying out the 
work. It would also require the prompt notification of the contracting 
officer of any discrepancies. It would hold the contractor responsible 
for any errors that might have been avoided by complying with these 
requirements, for identifying errors or omissions that are necessary to 
carry out the intent of the drawings and specifications, and for 
performing such work as if fully and correctly set forth.
    In 852.236-72, Performance of Work by the Contractor, we propose to 
amend the clause and Alternate 1 to make the text gender-neutral, to 
update terminology and to clarify language.
    In 852.236-74, Inspection of Construction, we propose to remove and 
reserve the clause in its entirety since VA Master Specifications 
provide the requirements for performing inspections.
    In 852.236-76, Correspondence, we propose to remove and reserve the 
clause since it is administrative guidance covered in the Notice to 
Proceed letter.
    In 852.236-77, Reference to ``Standards,'' we propose to remove and 
reserve the clause as unnecessary since VA Master Specifications are 
used in VA contracts.
    In 852.236-78, Government Supervision, we propose to remove and 
reserve the clause and would propose to include a revised version at 
852.242-70, Government Construction Contract Administration.
    In 852.236-79, Daily Report of Workers and Materials, we propose to 
amend the title of the clause to ``Contractor Production Report'' and 
would revise the clause to reflect use of VA Form 10101 which is based 
on industry reporting standards.
    In 852.236-80, Subcontracts and Work Coordination, we propose to 
make minor capitalization corrections for Contractor and Contracting 
Officer, and to clarify in paragraph (d) that the Government reserves 
the right to refuse to permit employment on the work, or require 
dismissal from the work, of any subcontractor or subcontractor 
employee, who, by reason of previous unsatisfactory work on Department 
of Veterans Affairs projects or for any other reason, is considered by 
the contracting officer to be incompetent, careless, or otherwise 
objectionable. The words ``or subcontractor employee'' and ``careless'' 
would be added that were previously missing from the text.
    In 852.236-84, Schedule of Work Progress, we propose to remove the 
clause in its entirety and reserve it since the subject is already 
covered in the Network Analysis Schedules section of the VA Master 
Specifications.
    In 852.236-85, Supplementary Labor Standards Provisions, we propose 
to remove the clause in its entirety and reserve it since it is 
procedural and is addressed in FAR clauses 52.222-6, Construction Wage 
Rate Requirements, and 52.222-8, Payrolls and Basic Records.
    In 852.236-86, Workers' Compensation, we propose to remove the 
clause in its entirety and reserve it since it merely cites a Public 
Law regarding applicability of States' workers' compensation laws. The 
VAAR is not required to cite individual States' workers' compensation 
laws to make them applicable to companies performing work in individual 
states.
    In 852.236-87, Accident Prevention, we propose to remove the clause 
in its entirety and reserve it since the subject is already covered in 
the Accident Prevention Plan section of the VA Master Specifications.
    In 852.236-89, Buy American Act, along with its Alternate I and II, 
we propose to remove and reserve the clause as it is redundant to the 
FAR and is unnecessary.
    In 852.236-90, Restriction on Submission and Use of Equal Products, 
we propose to revise the clause to clarify the language to reinforce 
that the submission of ``equal'' products is not permitted; and to 
reformat the clause to standard FAR drafting convention and specify 
that notwithstanding any other clause or provision, only brand name

[[Page 45389]]

products for the items listed in the fill-in clause will be authorized 
for use on the contract. The prescription for this clause would require 
compliance with the documentation and authorizations required by FAR 
11.105 when it is determined that only one product will meet the 
Government's minimum needs.
    In 852.236-91, Special Notes, we propose to remove the clause in 
its entirety and reserve it since the material addressed is covered by 
the certification under the System for Award Management or under the 
Shop Drawings, Product Data & Submittals section of the VA Master 
Specifications.
    We propose to add a new clause 852.236-92, Notice to Bidders--
Additive or Deductive Bid Line Items, to provide guidance on how such 
bid items will be evaluated to determine the low bidder.
    We propose to add a new clause 852.242-70, Government Construction 
Contract Administration, to enumerate the responsibilities being 
delegated.

VAAR Part 853--Forms

    We propose to amend the authority if part 853 to add 41 U.S.C. 
1121(c)(3) which is from Title 41, Public Contracts, that speaks to the 
authority of an executive agency under another law to prescribe 
policies, regulations, procedures, and forms for procurement that are 
subject to the authority conferred in the cited section, as well as 
other sections of Title 41 as shown therein. We also propose to replace 
the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the 
acquisition planning and management responsibilities of Chief 
Acquisition Officers and Senior Procurement Executives, to include 
implementation of unique procurement policies, regulations and 
standards of the executive agency.
    In subpart 853.1--General, in 853.107, Obtaining forms, we propose 
to revise the text to provide the current website address where VA 
forms are obtained now: https://www.va.gov/vaforms/. The outdated 
address for an old VA office would be removed, as well as the outdated 
practice of requesting forms in hard copy directly from the agency 
policy office. All forms will be available online.
    In subpart 853.2--Prescription of Forms, we propose to revise the 
list of forms applicable to VAAR part 836 that are used between VA and 
its contractors, potential offerors or bidders, or the general public.
    In 853.236, Construction and architect-engineer contracts, in 
section 853.236-70, VA Form 6298, Architect-Engineer Fee Proposal, we 
are revising the number of the form and changing the location of the 
prescription reference from 836.606-71 to 836.7001(a).
    In 853.236 we also propose to add the following sections 
identifying forms applicable to part 836:
    853.236-71, VA Form 2138, Order for Supplies or Services (Including 
Task Orders for Construction or A-E Services) which provides the 
prescription reference for use of the form for ordering supplies or 
services, including task orders for Construction or A-E services, to 
include dismantling, demolition, or removal of improvements.
    853.236-72, VA Form 10101, Contractor Production Report, which 
provides the prescription reference for use of the form or a contractor 
generated form containing the same type of information contained in the 
form.

Effect of Rulemaking

    Title 48, Federal Acquisition Regulations System, Chapter 8, 
Department of Veterans Affairs, of the Code of Federal Regulations, as 
proposed to be revised by this rulemaking, would represent VA's 
implementation of its legal authority and publication of the VAAR for 
the cited applicable parts. Other than future amendments to this rule 
or governing statutes for the cited applicable parts, or as otherwise 
authorized by approved deviations or waivers in accordance with FAR 
subpart 1.4, Deviations from the FAR, and as implemented by VAAR 
subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or 
procedures would be authorized. All existing or subsequent VA guidance 
would be read to conform with the rulemaking if possible or, if not 
possible, such guidance would be superseded by this rulemaking as 
pertains to the cited applicable VAAR parts.

Executive Orders 12866, 13563 and 13771

    Executive Orders (E.O.) 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. 
E.O. 12866, Regulatory Planning and Review, defines ``significant 
regulatory action'' to mean any regulatory action that is likely to 
result in a rule that may: ``(1) Have an annual effect on the economy 
of $100 million or more or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
Governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action, and it has been 
determined this rule is not a significant regulatory action under E.O. 
12866.
    VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 Through Fiscal Year to Date. This proposed rule 
is expected to be an E.O. 13771 deregulatory action. Details on the 
estimated cost savings of this proposed rule can be found in the rule's 
economic analysis.

Paperwork Reduction Act

    This proposed rule impacts eight existing information collection 
requirements associated with four Office of Management and Budget (OMB) 
control number approvals. The proposed actions in this rule result in 
multiple actions affecting some of these information collections, such 
as: The proposed outright removal of the information collection; no 
change in information collection burdens although titles and number of 
the information collection would be slightly revised; or no change to 
the existing OMB control number and associated burden.
    The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires 
that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).

[[Page 45390]]

    This proposed rule contains one provision constituting a collection 
of information at 48 CFR 836.606-71, Architect-engineer's proposal, 
concerning use of and prescription for VA Form 10-6298, Architect-
Engineer Fee Proposal, which is proposed to be revised with updated 
thresholds and FAR citations, as well as an updated number to remove 
the ``10-'' currently part of the form number. Under the provisions of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new 
collection of information is associated with this provision as a part 
of this proposed rule. The information collection requirement for 
836.606-71 is currently approved by OMB and has been assigned OMB 
control number 2900-0208. The burden of this information collection 
would remain unchanged. There would be no change in the information 
collection burden that is associated with this proposed request. 
However, we are proposing to amend the information collection 
requirement to renumber the form currently numbered and titled as VA 
Form 10-6298, Architect-Engineer Fee Proposal, to now read: VA Form 
6298, Architect-Engineer Fee Proposal. Additionally, older dollar 
thresholds and FAR citations in the form would be updated to current 
levels and correct citations. In accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521), OMB has approved the 
reporting or recordkeeping provisions that are included in the text and 
form under 836.606-71 cited above against the assigned OMB control 
number. For the requested administrative amendments to the form, as 
required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), 
VA has submitted this information collection amendment to OMB for its 
review. Notice of OMB approval for this information collection will be 
published in a future Federal Register document. Further proposed 
revision to the associated OMB control number relating to other 
provisions of this proposed rule are identified separately in this 
submittal.
    This proposed rule also contains two provisions constituting a 
collection of information at 48 CFR 852.236-72, Performance of Work by 
the Contractor; and 48 CFR 852.236-88, Contract Changes--Supplement, 
that would remain unchanged. Under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised 
collection of information is associated with these provisions as a part 
of this proposed rule. The information collection requirements for 
852.236-72 and 852.236-88 are currently approved by OMB and have been 
assigned OMB control number 2900-0422. The burden of these information 
collections would remain unchanged. In accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521), OMB has approved the 
reporting or recordkeeping provisions that are included in the clause 
at 852.236-72 and 852.236-88 cited above and against the assigned OMB 
control number. Further proposed revision to the associated OMB control 
number relating to other information collections and provisions of this 
proposed rule are identified separately in this submittal.
    This proposed rule would impose the following amended information 
collection requirements to one of the four existing information 
collection approval numbers associated with this proposed rule. 
Although this action contains the following provision constituting a 
collection of information at 48 CFR 852.236-79, under the provisions of 
the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed 
collection of information is associated with this provision as a part 
of this proposed rule. The information collection requirement for 
852.236-79 is currently approved by OMB and has been assigned OMB 
control number 2900-0208. There would be no change in the information 
collection burden that is associated with this proposed request. 
However, we are proposing to amend the information collection 
requirement to revise the title and to renumber the form currently 
numbered and titled as VA Form 10-6131, Daily Log (Contract Progress 
Report--Formal Contract) to replace this form, along with replacing the 
number and title of VA Form 10-6001a, Supplement Contract Progress 
Report with one new number, title and format--VA Form 10101, Contractor 
Production Report. As required by the Paperwork Reduction Act of 1995 
(at 44 U.S.C. 3507(d)), VA has submitted this information collection 
amendment to OMB for its review. Notice of OMB approval for this 
information collection will be published in a future Federal Register 
document. The currently approved burden remains unchanged.
    This action also contains a provision constituting a collection of 
information at 48 CFR 852.236-80, however, under the provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed 
collection of information is associated with this provision as a part 
of this proposed rule. The information collection requirement for 
852.236-80 is currently approved by OMB and has been assigned OMB 
control number 2900-0422. The currently approved burden associated with 
this clause would remain unchanged. However, this information 
collection has been submitted to OMB to amend the information 
collection requirement to make a minor correction to the title of the 
clause, as stated in paragraph 1 of the Supporting Statement, to 
reflect the full name of the clause--``Subcontracts and Work 
Coordination'' in lieu of an abbreviated title reflected on the 
Supporting Statement--``Work Coordination.'' The clause was otherwise 
referenced correctly in the remainder of the supporting statement. As 
required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), 
VA has submitted this information collection amendment to OMB for its 
review to revise the title in paragraph 1 of the submitted statement. 
Notice of OMB approval for this information collection will be 
published in a future Federal Register document.
    This proposed rule would remove one of the existing information 
collection requirements associated with this action at 48 CFR 852.236-
84, Schedule of Work Progress. Under the provisions of the Paperwork 
Reduction Act (44 U.S.C. 3501-3521), while the actual OMB control 
number will remain in existence due to other information collections on 
the same OMB control number that are approved and active, it 
discontinues the inclusion of 852.236-84 under the associated 
corresponding approved OMB control number, 2900-0422. As a result of 
this proposed rule, there would be a removal in the information 
collection burden that is associated with it. For 48 CFR 852.236-84, 
Schedule of Work Progress, as now included on OMB control number 2900-
0422, this would result in a removal of 1828.5 estimated annual burden 
hours and an annual cost savings of $70,800. As required by the 
Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has 
submitted this information collection amendment to OMB for its review. 
Notice of OMB approval for this information collection will be 
published in a future Federal Register document.
    This proposed rule would remove two of the existing information 
collection requirements associated with this action at 48 CFR 852.236-
89, Buy American Act; and 852.236-91, Special Notes. Under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it 
discontinues the associated corresponding approved OMB control numbers, 
2900-0622 and 2900-0623, respectively. As a result of this proposed 
rule, there would be a removal

[[Page 45391]]

in the information collection burden that is associated with it. For 48 
CFR 852.236-89, Buy American Act, and its corresponding OMB control 
number 2900-0622, this would result in a removal of 22 estimated annual 
burden hours and an annual cost savings to respondents of $852. For 48 
CFR 852.236-91, Special Notes, and its corresponding OMB control number 
2900-0623, this would result in a removal of 778 estimated annual 
burden hours and an annual cost savings of $30,122. As required by the 
Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has 
submitted these information collection amendments to OMB for its 
review. Notice of OMB approval for this information collection will be 
published in a future Federal Register document.

Regulatory Flexibility Act

    This proposed rule would not have a significant economic impact on 
a substantial number of small entities as they are defined in the 
Regulatory Flexibility Act, 5 U.S.C. 601-612. The overall impact of the 
proposed rule would be of benefit to small businesses owned by Veterans 
or service-disabled Veterans as the VAAR is being updated to remove 
extraneous procedural information that applies only to VA's internal 
operating processes or procedures. VA estimates no cost impact to 
individual business would result from these rule updates. This 
rulemaking clarifies VA's policy regarding the contracting order of 
priority for Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) 
and Veteran-Owned Small Businesses (VOSBs) as a result of VA's 
implementation of 38 U.S.C. 8127-8128 as a result of the U.S. Supreme 
Court's decision in Kingdomware Technologies, Inc. vs. the United 
States, July 25, 2018, only as it pertains to the application of the VA 
Rule of Two to contracts for construction and architect-engineer 
contracts in accordance with Public Law 109-461 as codified at 38 
U.S.C. 8127-8128. It does not have an economic impact to individual 
businesses, and there are no increased or decreased costs to small 
business entities. On this basis, this proposed rule would not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt 
from the initial and final regulatory flexibility analysis requirements 
of sections 603 and 604.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal Governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal Governments or on the private 
sector.

List of Subjects

48 CFR Part 801

    Administrative practice and procedure, Government procurement, 
Reporting and recordkeeping requirements.

48 CFR Part 825

    Customs duties and inspection, Foreign currencies, Foreign trade, 
Government procurement.

48 CFR Parts 836 and 852

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 842

    Accounting, Government procurement.

48 CFR Parts 846 and 853

    Government procurement.

Signing Authority

    The Secretary of Veterans Affairs approved this document and 
authorized the undersigned to sign and submit the document to the 
Office of the Federal Register for publication electronically as an 
official document of the Department of Veterans Affairs. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on August 20, 2018, for publication.

    Dated: August 21, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 48 
CFR parts 801, 825, 836, 842, 846, 852, and 853 as follows:

PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION 
SYSTEM

0
1. The authority citation for part 801 continues to read as follows:

    Authority:  38 U.S.C. 8123; 38 U.S.C. 8153; 38 U.S.C. 8303; 40 
U.S.C. 121(c); 41 U.S.C. 1702; 41 U.S.C. 1707; and 48 CFR 1.301-
1.304.

Subpart 801.1--Purpose, Authority, Issuance


801.106  [Amended]

0
2. In section 801.106, under the table columns titled ``48 CFR part or 
section where identified and described'' and ``Current OMB control 
number'':
0
a. Remove the reference to 852.236-84 and add in its place 852.236-83.
0
b. Remove the reference to 852.236-89 and the corresponding OMB Control 
Number 2900-0622.
0
c. Remove the reference to 852.236-91 and the corresponding OMB Control 
Number 2900-0623.

PART 825--FOREIGN ACQUISITION

0
3. The authority citation for part 825 is revised to read as follows:

    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.

Subpart 825.2 [Removed and Reserved]

0
4. Subpart 825.2 is removed and reserved.

Subpart 825.11 [Removed and Reserved]

0
5. Subpart 825.11 is removed and reserved.

PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
6. The authority citation for part 836 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3), 1303(a)(2) 
and 1702; and 48 CFR 1.301-1.304.

Subpart 836.2--Special Aspects of Contracting for Construction

0
7. Section 836.202 is revised to read as follows:


836.202   Specifications.

0
8. Section 836.202-70 is added to read as follows:


836.202-70  Specifications--use of equal products.

    Upon approval of the justification documentation required by FAR 
11.105, Items peculiar to one manufacturer, the contracting officer 
shall include the clause found at 852.236-90, Restriction on Submission 
and Use of Equal Products, in solicitations and contracts. The 
contracting officer shall complete the clause by inserting the items 
which have been approved for restriction to a brand name. This clause 
also places offerors or bidders on notice that the ``brand name'' 
provisions of any clause or provision that may authorize the

[[Page 45392]]

submission of an ``equal'' product, shall not apply to the specific 
items listed in clause 852.236-90.
0
9. Section 836.203 is revised to read as follows:


836.203   Government estimate of construction costs.

0
10. Section 836.203-70 is added to read as follows:


836.203-70   Protection of the independent government estimate--sealed 
bid.

    For sealed bid acquisitions the contracting officer or bid 
custodian is not authorized to release the basis for calculating the 
estimate at any time. The person preparing the independent government 
estimate (IGE) shall--
    (a) Designate the IGE as ``For Official Use Only (FOUO)'';
    (b) The contracting officer or bid custodian shall file a sealed 
copy of the IGE with the bids. (In the case of two-step acquisitions, 
the contracting officer or bid custodian accomplishes this during the 
second step);
    (c) After the bids are read and recorded during a Public Bid 
Opening, remove the ``For Official Use Only (FOUO)'' designation then 
read and record the estimate as if it were a bid, in the same detail as 
the bids; and
    (d) In instances where only one bid has been received, the 
government estimate shall not be read by the contracting officer as it 
may be needed to conduct negotiations with the offeror.
0
11. Section 836.204 is revised to read as follows:


836.204   Disclosure of the magnitude of construction projects.

    The contracting officer shall utilize the estimated price ranges 
defined in FAR 36.204 as further supplemented below when identifying 
the magnitude of a VA project in advance notices and solicitations:
    (f) For estimated price ranges between $1,000,000 and $5,000,000, 
the contracting officer shall identify the magnitude of a VA project in 
advance notices and solicitations in terms of the following price 
ranges:
    (1) Between $1,000,000 and $2,000,000.
    (2) Between $2,000,000 and $5,000,000.
    (g) Between $5,000,000 and $10,000,000.
    (h) For estimated price ranges greater than $10,000,000, the 
contracting officer shall identify the magnitude of a VA project in 
advance notices and solicitations in terms of one of the following 
price ranges:
    (1) Between $10,000,000 and $20,000,000.
    (2) Between $20,000,000 and $50,000,000.
    (3) Between $50,000,000 and $100,000,000.
    (4) Between $100,000,000 and $150,000,000.
    (5) Between $150,000,000 and $200,000,000.
    (6) Between $200,000,000 and $250,000,000.
    (7) More than $250,000,000.


836.206   [Removed]

0
12. Section 836.206 is removed.


836.209  [Removed]

0
13. Section 836.209 is removed.


836.213, 836.213-4, and 836.213-70  [Removed]

0
14. Sections 836.213, 836.213-4, and 836.213-70 are removed.

Subpart 836.5--Contract Clauses

0
15. Section 836.500 is revised to read as follows:


836.500   Scope of subpart.

    The clauses and provisions prescribed in this subpart are set forth 
for use in fixed-price construction contracts in addition to those in 
FAR subpart 36.5.
0
16. Section 836.501 is revised to read as follows:


836.501  Performance of work by the contractor.

    The contracting officer shall insert the clause at 852.236-72, 
Performance of Work by the Contractor, in solicitations and contracts 
for construction that contain the FAR clause at 52.236-1, Performance 
of Work by the Contractor, except those awarded pursuant to subpart 
819.70. When the solicitations or contracts include a section entitled 
``Network Analysis System (NAS),'' the contracting officer shall use 
the clause with its Alternate I.


836.513   [Removed]

0
17. Section 836.513 is removed.
0
18. Section 836.521 is revised to read as follows:


836.521   Specifications and drawings for construction.

    The contracting officer shall insert the clause at 852.236-71, 
Specifications and Drawings for Construction, in solicitations and 
contracts for construction that include the FAR clause at 52.236-21, 
Specifications and Drawings for Construction.


836.570  [Removed]

0
19. Section 836.570 is removed.


836.571   [Removed]

0
20. Section 836.571 is removed.


836.572   [Removed]

0
21. Section 836.572 is removed.
0
22. Section 836.573 is revised to read as follows:


836.573   Contractor production report.

    The contracting officer shall insert the clause at 852.236-79, 
Contractor Production Report, in solicitations and contracts for 
construction expected to exceed the simplified acquisition threshold. 
The contracting officer may, when in the best interest of the 
Government, insert the clause in solicitations and contracts for 
construction when the contract amount is expected to be at or below the 
simplified acquisition threshold.
0
23. Section 836.574 is revised to read as follows:


836.574  Subcontracts and work coordination.

    The contracting officer shall insert the clause at 852.236-80, 
Subcontracts and Work Coordination, in invitations for bids and 
contracts for construction expected to exceed the micro-purchase 
threshold for construction. When the solicitations or contracts are for 
new construction work with complex mechanical-electrical work, the 
contracting officer may use the clause with its Alternate I.


836.575   [Removed]

0
24. Section 836.575 is removed.


836.576  [Removed]

0
25. Section 836.576 is removed.


836.577   [Removed]

0
26. Section 836.577 is removed.


836.579  [Removed]

0
27. Section 836.579 is removed.
0
28. Section 836.580 is added to read as follows:


836.580   Notice to bidders--additive or deductive bid line items.

    The contracting officer may include the provision 852.236-92, 
Notice to Bidders--Additive or Deductive Bid Line Items, in invitations 
for bids when the contracting officer determines that funds may not be 
available for all the desired construction features at contract award.

Subpart 836.6--Architect-Engineer Services


836.602, 836.602-1, 836.602-2, 836.602-4, and 836.602-5  [Removed]

0
29. Sections 836.602, 836.602-1, 836.602-2, 836.602-4, and 836.602-5 
are removed.
0
30. Section 836.603 is revised to read as follows:

[[Page 45393]]

836.603  Collecting data on and appraising firms' qualifications.

    The Associate Executive Director, Office of Facilities Engineering, 
for Central Office; the Director, Office of Construction Management, 
for National Cemetery Administration; the Senior Executive Service for 
Administration and Facilities for Veterans Benefits Administration; and 
the Chief, Engineering Service, for field facilities, are responsible 
for collecting Standard Forms 330 and maintaining a data file on 
architect-engineer qualifications.
0
31. Sections 836.606, 836.606-70, and 836.606-71 are revised to read as 
follows:


836.606  Negotiations.


836.606-70  Architect-engineer firms' proposal.

    (a) When the contract price is estimated to be $50,000 or more, the 
contracting officer shall use VA Form 6298, Architect-Engineer Fee 
Proposal, to obtain the proposal and supporting cost data from the 
proposed contractor and subcontractor in the negotiation of an A-E 
contract for design services.
    (b) In obtaining A-E services for research study, seismic study, 
master planning study, construction management and other related 
services contracts, the contracting officer shall use VA Form 6298, 
supplemented or modified as needed for the particular project type.


836.606-71  Application of 6 percent architect-engineer fee limitation.

    (a) The production and delivery of designs, plans, drawings, and 
specifications shall not exceed 6 percent of the estimated cost of 
construction. Other A-E fees are not included in this 6 percent. Such 
fees are delineated in paragraph (c) of this section.
    (b) The 6 percent limit also applies to contract modifications, 
including modifications involving:
    (1) Work not initially included in the contract. Apply the 6 
percent limit to the revised total estimated construction cost.
    (2) Redesign. Apply the 6 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 6 
percent statutory limitation.
    (c) The 6 percent fee limitation does not apply to the following 
architect or engineer services:
    (1) Investigative services including but not limited to--
    (i) Determination of program requirements, including schematic or 
preliminary plans and estimates;
    (ii) Determination of feasibility of proposed project;
    (iii) Preparation of measured drawings of existing facility;
    (iv) Subsurface investigation;
    (v) Structural, electrical, and mechanical investigation of 
existing facility;
    (vi) Surveys: topographic, boundary, utilities, etc.;
    (vii) Environmental services;
    (viii) Geo-Tech studies; and
    (ix) Feasibility studies.
    (2) Special consultant services that are not normally available in 
organizations of architects or engineers and that are not specifically 
applied to the actual preparation of working drawings or specifications 
of the project for which the service are required.
    (3) Other--
    (i) Reproduction of approved designs through models, color 
renderings, photographs, or other presentation media;
    (ii) Travel and per diem allowances other than those required for 
the development and review of working drawings and specifications;
    (iii) Supervision or inspection of construction, review of shop 
drawings or samples, and other services performed during the 
construction phase;
    (iv) All other services that are not an integral part of the 
production and delivery of plans, designs, and specifications; and,
    (v) The cost of reproducing drawings and specifications for bidding 
and their distribution to prospective bidders and plan file rooms.


836.606-72 and 836.606-73   [Removed]

0
32. Sections 836.606-72 and 836.606-73 are removed.
0
33. Subpart 836.70 is added to read as follows:

Subpart 836.70--Unique Forms for Contracting for Construction, 
Architect-Engineer Services, and Dismantling, Demolition, or 
Removal of Improvements


836.7000   Scope of subpart.

    This subpart sets forth requirements for the use of VA unique 
forms, as prescribed in this part, for contracting for construction, 
architect-engineer services, or dismantling, demolition, or removal of 
improvements. See part 853.


836.7001  Unique construction and architect-engineer services forms.

    Contracting officers may use the following forms, as prescribed in 
this part or subpart, for construction, architect-engineer services or 
dismantling, demolition, or removal of improvements contracts as set 
forth below and in the referenced prescriptions:
    (a) VA Form 6298, Architect-Engineer Fee Proposal (see 853.236-70).
    VA Form 6298, Architect-Engineer Fee Proposal, shall be used as 
prescribed in 836.606-70.
    (b) VA Form 2138, Order for Supplies or Services (Including Task 
Orders for Construction or A-E Services) (see 853.236-71). VA Form 
2138, Order for Supplies or Services (Including Task Orders for 
Construction or A-E Services), may be used for ordering supplies or 
services, including task orders for Construction or A-E services, to 
include dismantling, demolition, or removal of improvements.
    (c) VA Form 10101, Contractor Production Report (see 853.236-72). 
Contractors may use VA Form 10101, Contractor Production Report or a 
contractor generated form containing the same type of information 
contained in the form, as required by 836.573 which prescribes the 
clause at 852.236-79, Contractor Production Report.

PART 842--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
34. The authority citation for part 842 is revised to read as follows:


    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.

0
35. Subpart 842.2 is added to read as follows:

Subpart 842.2--Contract Administration Services


842.271  Contract clause for Government construction contract 
administration.

    The contracting officer shall insert the clause at 852.242-70, 
Government Construction Contract Administration, in solicitations and 
contracts for construction expected to exceed the micro-purchase 
threshold for construction.

PART 846--QUALITY ASSURANCE

0
36. The authority citation for part 846 is revised to read as follows:


    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.


846.312  [Removed]

0
37. Section 846.312 is removed.

[[Page 45394]]

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
38. The authority citation for part 852 continues to read as follows:


    Authority:  38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 
121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.

0
39. Section 852.236-71 is revised to read as follows:

852.236-71   Specifications and Drawings for Construction.

    As prescribed in 836.521, insert the following clause:

Specifications and Drawings for Construction (Date)

    The clause entitled ``Specifications and Drawings for 
Construction'' in FAR 52.236-21 is supplemented as follows:
    (a) The Contracting Officer's interpretation of the drawings and 
specifications will be final, subject to the Disputes clause.
    (b) The Contractor shall--
    (1) Check all drawings and specifications furnished immediately 
upon receipt;
    (2) Compare all drawings and the specifications, and verify the 
figures before laying out the work;
    (3) Promptly notify the Contracting Officer of any 
discrepancies;
    (4) Be responsible for any errors that might have been avoided 
by complying with this paragraph (b); and
    (5) Reproduce and print contract drawings and specifications as 
needed.
    (c) In general--
    (1) Drawings of greater detail shall govern over drawings of 
lesser detail unless specifically noted otherwise; and
    (2) Figures and numerical quantities noted on drawings govern 
over scale measurements.
    (d) Omissions from the drawings or specifications or the 
misdescription of details of work that are manifestly necessary to 
carry out the intent of the drawings and specifications, or that are 
customarily performed, shall not relieve the Contractor from 
performing such omitted or misdescribed details of the work. The 
Contractor shall perform such details as if fully and correctly set 
forth and described in the drawings and specifications.
    (e) The work shall conform to the specifications and the 
contract drawings identified on the following index of drawings:
    Title File Drawing No.


(End of clause)

0
40. Section 852.236-72 is revised to read as follows:

852.236-72   Performance of Work by the Contractor.

    As prescribed in 836.501, insert the following clause:

Performance of Work by the Contractor (Date)

    (a) In accordance with FAR 52.236-1, the contract work 
accomplished on the site by laborers, mechanics, and foreman/
superintendent on the contractor's payroll and under their direct 
supervision shall be used in establishing the percent of work to be 
performed by the Contractor. Cost of material and equipment 
installed by such labor may be included. The work by the 
contractor's executive, administrative and clerical forces shall be 
excluded in establishing compliance with the requirements of this 
clause.
    (b) The Contractor shall submit, simultaneously with the 
schedule of costs required by the Payments under Fixed-Price 
Construction Contracts clause of the contract, a statement 
designating the portions of contract work to be performed with the 
contractor's own forces. The approved schedule of costs will be used 
in determining the value of a work activity/event, or portions 
thereof, of the work for the purpose of this article.
    (c) Changes to established activity/event identifiers or 
responsibility codes for Contractor activities shall not be made 
without approval from the Contracting Officer.
    (d) In the event the Contractor fails to comply with FAR 52.236-
1, Performance of Work by the Contractor, the Contracting Officer 
will withhold retention in the amount of 15% of the value of any 
work activity/element being invoiced that was not authorized by the 
Contracting Officer to be performed by someone other than the prime 
contractor's own workforce.


(End of clause)

    Alternate I (DATE). For requirements which include a Network 
Analysis System (NAS), substitute the following paragraph (b) for 
paragraph (b) of the basic clause:
    (b) The Contractor shall submit, simultaneously with the cost 
per activity of the construction schedule required by Section 01310 
or 01311, NETWORK ANALYSIS SYSTEM, a responsibility code for all 
activities of the network for which the contractor's forces will 
perform the work. The cost of these activities will be used in 
determining the portions of the total contract work to be executed 
by the contractor's forces for the purpose of this article.


852.236-74   [Removed and Reserved]

0
41. Section 852.236-74 is removed and reserved.


852.236-76   [Removed and Reserved]

0
42. Section 852.236-76 is removed and reserved.


852.236-77  [Removed and Reserved]

0
43. Section 852.236-77 is removed and reserved.


852.236-78   [Removed and Reserved]

0
44. Section 852.236-78 is removed and reserved.
0
45. Section 852.236-79 is revised to read as follows:


852.236-79  Contractor Production Report.

    As prescribed in 836.573, insert the following clause:

Contractor Production Report (Date)

    (a) The Contractor shall furnish to the resident engineer, for 
each workday, a consolidated report for the preceding workday. 
Reporting shall begin from date of mobilization until the date of 
final acceptance except for authorized holidays. VA Form 10101, 
Contractor Production Report, or a Contractor generated form 
containing the same type of information shall be signed, dated and 
submitted by the Contractor superintendent.
    (b) Each report shall include and specifically identify at least 
one safety topic germane to the jobsite that day.


(End of clause)

0
46. Section 852.236-80 is revised to read as follows:


852.236-80   Subcontracts and Work Coordination.

    As prescribed in 836.574, insert the following clause:

Subcontracts and Work Coordination (Date)

    (a) Nothing contained in this contract shall be construed as 
creating any contractual relationship between any subcontractor and 
the Government. Divisions or sections of specifications are not 
intended to control the Contractor in dividing work among 
subcontractors, or to limit work performed by any trade.
    (b) The Contractor shall be responsible to the Government for 
acts and omissions of his/her own employees, and of the 
subcontractors and their employees. The Contractor shall also be 
responsible for coordination of the work of the trades, 
subcontractors, and material suppliers.
    (c) The Government or its representatives will not undertake to 
settle any differences between the Contractor and subcontractors or 
between subcontractors.
    (d) The Government reserves the right to refuse to permit 
employment on the work, or require dismissal from the work, of any 
subcontractor or subcontractor employee who, by reason of previous 
unsatisfactory work on Department of Veterans Affairs projects or 
for any other reason, is considered by the Contracting Officer to be 
incompetent, careless, or otherwise objectionable.


(End of clause)

    Alternate I (DATE). For new construction work with complex 
mechanical-electrical work, the following paragraph relating to work 
coordination may be substituted for paragraph (b) of the basic 
clause:
    (b) The Contractor shall be responsible to the Government for 
acts and omissions of his/her own employees, and subcontractors and 
their employees. The Contractor shall also be responsible for 
coordination of the work of the trades, subcontractors, and material 
suppliers. The Contractor shall, in advance of the work, prepare 
coordination drawings showing the location of openings

[[Page 45395]]

through slabs, the pipe sleeves and hanger inserts, as well as the 
location and elevation of utility lines, including, but not limited 
to, conveyor systems, pneumatic tubes, ducts, and conduits and pipes 
2 inches and larger in diameter. These drawings, including plans, 
elevations, and sections as appropriate, shall clearly show the 
manner in which the utilities fit into the available space and 
relate to each other and to existing building elements. Drawings 
shall be of appropriate scale to satisfy the previously stated 
purposes, but not smaller than \3\2044;<INF>8</INF> -inch scale. 
Drawings may be composite (with distinctive colors for the various 
trades) or may be separate but fully coordinated drawings (such as 
sepias or photographic paper reproducibles) of the same scale. 
Separate drawings shall depict identical building areas or sections 
and shall be capable of being overlaid in any combination. The 
submitted drawings for a given area of the project shall show the 
work of all trades that will be involved in that particular area. 
Six complete composite drawings or six complete sets of separate 
reproducible drawings shall be received by the Government not less 
than 20 days prior to the scheduled start of the work in the area 
illustrated by the drawings, for the purpose of showing the 
Contractor's planned methods of installation. The objectives of such 
drawings are to promote carefully planned work sequence and proper 
trade coordination, in order to assure the expeditious solutions of 
problems and the installation of lines and equipment as contemplated 
by the contract documents while avoiding or minimizing additional 
costs to the Contractor and to the Government. In the event the 
Contractor, in coordinating the various installations and in 
planning the method of installation, finds a conflict in location or 
elevation of any of the utilities with themselves, with structural 
items or with other construction items, he/she shall bring this 
conflict to the attention of the Contracting Officer immediately. In 
doing so, the Contractor shall explain the proposed method of 
solving the problem or shall request instructions as to how to 
proceed if adjustments beyond those of usual trades' coordination 
are necessary. Utilities installation work will not proceed in any 
area prior to the submission and completion of the Government review 
of the coordinated drawings for that area, nor in any area in which 
conflicts are disclosed by the coordination drawings, until the 
conflicts have been corrected to the satisfaction of the Contracting 
Officer. It is the responsibility of the Contractor to submit the 
required drawings in a timely manner consistent with the 
requirements to complete the work covered by this contract within 
the prescribed contract time.


852.236-84  [Removed and Reserved]

0
47. Section 852.236-84 is removed and reserved.


852.236-85   [Removed and Reserved]

0
48. Section 852.236-85 is removed and reserved.


852.236-86  [Removed and Reserved]

0
49. Section 852.236-86 is removed and reserved.


852.236-87  [Removed and Reserved]

0
50. Section 852.236-87 is removed and reserved.


852.236-89   [Removed and Reserved]

0
51. Section 852.236-89 is removed and reserved.
0
52. Section 852.236-90 is revised to read as follows:


852.236-90   Restriction on Submission and Use of Equal Products.

    As prescribed in 836.202-70, insert the following clause in 
solicitations and contracts when it is determined that only one product 
will meet the Government's minimum needs and the submission of 
``equal'' products is not permitted:

Restriction on Submission and Use of Equal Products (Date)

    (a) This clause applies to the following items: [Contracting 
Officer fill-in]

-----------------------------------------------------------------------

-----------------------------------------------------------------------

-----------------------------------------------------------------------

    (b) Notwithstanding the ``Material and Workmanship'' clause of 
this contract, FAR 52.236-5(a), nor any other clause or provision, 
only brand name products for the items listed above will be 
authorized for use on this contract.


(End of clause)


852.236-91   [Removed and Reserved]

0
53. Section 852.236-91 is removed and reserved.
0
54. Section 852.236-92 is added to read as follows:


852.236-92  Notice to Bidders--Additive or Deductive Bid Line Items.

    As prescribed in 836.580, insert the following provision:

Notice to Bidders--Additive or Deductive Bid Line Items (Date)

    (a) Additive or deductive line items in the Schedule shall be 
evaluated to determine the low offeror and the items to be awarded. 
The evaluation shall be made as follows--
    (1) Prior to the opening of bids, the Government will determine 
the amount of funds available for the project.
    (2) The low bid shall be the Bidder that--
    (i) Is otherwise eligible for award; and
    (ii) Offers the lowest aggregate amount for the first or base 
line item, plus or minus (in the order stated in the list of 
priorities in the bid schedule) those additive or deductive line 
items that provide the most features within the funds determined 
available.
    (3) All bids shall be evaluated on the basis of the same 
additive or deductive line items.
    (i) If adding another item from the bid schedule list of 
priorities would make the award exceed the available funds for all 
offerors, the Contracting Officer will skip that item and go to the 
next item from the bid schedule of priorities; and
    (ii) Add that next item if an award may be made that includes 
that line item and is within the available funds.
    (b) The Contracting Officer will use the list of priorities in 
the bid Schedule only to determine the low offeror. After 
determining the low offeror, an award may be made on any combination 
of items if--
    (1) It is in the best interest of the Government;
    (2) Funds are available at the time of award; and
    (3) The low offeror's price for the combination to be awarded is 
less than the price offered by any other responsive, responsible 
offeror.
    (c) Example. ``The amount available is $100,000. Offeror A's 
base bid and four additives (in the order stated in the list of 
priorities in the bid Schedule) are $85,000, $10,000, $8,000, 
$6,000, and $4,000. Offeror B's base bid and four additives are 
$80,000, $16,000, $9,000, $7,000, and $4,000. Offeror A is the low 
offeror. The aggregate amount of offeror A's bid for purposes of 
award would be $99,000, which includes a base bid plus the first and 
fourth additives. The second and third additives were skipped 
because each of them would cause the aggregate bid to exceed 
$100,000.''


(End of provision)

0
55. Section 852.242-70 is added as follows:


852.242-70   Government Construction Contract Administration.

    As prescribed in 842.271, insert the following clause. This is a 
fill-in clause.

Government Construction Contract Administration (Date)

    (a) Contract administration functions set forth in FAR 42.302 
are hereby delegated to:
    [Insert name and office address of Contracting Officer]
    (b) The work will be under the direction of a Department of 
Veterans Affairs Contracting Officer, who may designate another VA 
employee to act as resident engineer at the construction site.
    (c) Except as provided below, the resident engineer's directions 
will not conflict with or change contract requirements. Within the 
limits of any specific authority delegated by the Contracting 
Officer, the resident engineer may, by written direction, make 
changes in the work. The Contractor shall be advised of the extent 
of such authority prior to execution of any work under the contract.
    (d) The Contracting Officer identified in paragraph (a) of this 
clause may further delegate the responsibilities below to the 
following warranted personnel on site:
    [Insert name and office address of individual with limited 
authority]
    (1) Conduct post-award orientation conferences.
    (2) Issue administrative changes, correcting errors or omissions 
in typing, Contractor address, facility or activity code, remittance

[[Page 45396]]

address, computations which do not required additional contract 
funds, and other such changes (see FAR 43.101).
    (3) For actions not to exceed $ (insert dollar amount) negotiate 
and execute supplemental agreements incorporating Contractor 
proposals resulting from change orders issued under the Changes 
clause.
    (4) Negotiate and execute supplemental agreements changing 
contract delivery schedules where the time extension does not exceed 
(insert number) calendar days.


(End of clause)

PART 853--FORMS

0
56. The authority citation for part 853 is revised to read as follows:

    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.

Subpart 853.1--General

0
57. Section 853.107 is revised to read as follows:


853.107  Obtaining forms.

    VA forms may be obtained online at https://www.va.gov/vaforms/ or 
upon request from any VA contracting office.

Subpart 853.2--Prescription of Forms

0
58. Sections 853.236 and 853.236-70 are revised to read as follows:


853.236   Construction and architect-engineer contracts.


853.236-70  VA Form 6298, Architect-Engineer Fee Proposal (see 
836.7001(a)).

0
59. Sections 853.236-71 and 853.236.72 are added to read as follows:


853.236-71   VA Form 2138, Order for Supplies or Services (Including 
Task Orders for Construction or A-E Services) (see 836.7001(b)).


853.236-72   VA Form 10101, Contractor Production Report (see 
836.7001(c)).

[FR Doc. 2018-18309 Filed 9-6-18; 8:45 am]
 BILLING CODE 8320-01-P