By "standard commercial terms and conditions", do you mean the untailored version of FAR 52.212-4? If so, I think it would be crazy to use that in a construction contract. I would research what standard contracts were available from organizations like the American Institute of Architects and tailor FAR 52.212-4 accordingly.

1 hour ago, Don Mansfield said:

By "standard commercial terms and conditions", do you mean the untailored version of FAR 52.212-4? If so, I think it would be crazy to use that in a construction contract. I would research what standard contracts were available from organizations like the American Institute of Architects and tailor FAR 52.212-4 accordingly.

52.212-4 can be tailored except as limited by RFO 12.205(b)(1)(ii). As an example, that says you cannot tailor the payment paragraph. So, how do you deal with the inherent conflicts between the commercial payment paragraph and 52.232-5?

What about the huge difference in changes? Would you suggest just tailoring RFO 52.212-4(d) changes so that it looks like 52.243-4 or -5?

In the world of reality, instead of the world of government contracting, construction always has been a commercial service, but the people who came up with FAR Part 12 were not competent to deal with it.

Don't buy construction as a commercial service under FAR Part 12 until someone at those *@&^#% FAR councils further addresses that matter. The standard FAR commercial item clauses are not suitable for construction. Wait until "those people" address that matter more fully.

1. Assuming that you are asking how to pay as the work progresses, how about line items for each stage of completion?

   5 hours ago, GeoJeff said:

   What about the huge difference in changes? Would you suggest just tailoring RFO 52.212-4(d) changes so that it looks like 52.243-4 or -5?

   2. No, I would suggest tailoring the paragraph so it's consistent with customary commercial practice.

      2 hours ago, Vern Edwards said:

      Don't buy construction as a commercial service under FAR Part 12 until someone at those *@&^#% FAR councils further addresses that matter. The standard FAR commercial item clauses are not suitable for construction. Wait until "those people" address that matter more fully.

The problem is that the FAR part 2 deviation guidance specifically includes construction in the definition of "commercial service," and FAR requires the use of part 12 when buying commercial services. There's also the EO that now requires a contracting officer to get higher-level approval whenever they determine something is not commercial.

20 hours ago, GeoJeff said:

Any thoughts on how the powers that be are going to unscramble this egg, or is this just going to be a regulatory free-for-all while everyone behaves differently?

My first inclination, IF I were still a CO, would be to see how others have already unscrambled the egg. One specific example and one anecdotal one.

The specific would be to take a a stroll SAM.gov Contract Opportunities and look at construction solicitations. I did a quick search before before posting this and the very first hit was a "construction services" effort that was initially solicited on a Standard Form 1449. I looked no further to see how they unscrambled the egg but with interest noted that the solicitation had been amended 7 seven times with some being an effort to make it look more like FAR part 36. This said out of the 6,411 hits I am guessing there were several other examples.

Anecdotally, back in the day, and using guidance issued by OFPP I accomplished a couple of construction projects as commercial services. One was a pole barn that was in truth built to house a couple of wildand fire engines. It was a success and a marrying, just as Don Mansfield suggests, FAR and the tailoring of commercial practices. In the marrying there was internal push back and the changes clause matter was one area. But I will pose this, as the subject is somewhat fresh in my mind based on another discussion thread in WIFCON. The few efforts that were accomplished were in my view and by my effort as a CO relational contract experiences and not transactional. Would these few efforts fit every constuction service I ever did as a CO, probably not, with market research being very key. And market research would be very key today.

11 hours ago, Don Mansfield said:

The problem is that the FAR part 2 deviation guidance specifically includes construction in the definition of "commercial service," and FAR requires the use of part 12 when buying commercial services.

DO NOT attempt "tailoring" Part 12 clauses on your own, unless you are truly expert, and I mean EXPERT, not just "experienced", in construction contracting.

Construction is the most litigated of all types of government contracts. Construction has a massive common law and government contract law history. Regardless of what the "overhaul" people say about the commercial status of construction contracting, stay away from it until the government adopts standard commercial construction contracting clauses.

I know what I'm talking about. My last government job was head of construction contracting for a federal agency. Until then I had never had to go to court on a government contract. Upon taking that job I got to meet a lot of lawyers.

Remember the warning at the gates of Hell: Lasciate ogne speranza, voi ch'intrate.

10 hours ago, Don Mansfield said:

There's also the EO that now requires a contracting officer to get higher-level approval

I haven't looked, but I'd suspect there is or soon will be a class waiver or other work around for services like construction that are and should remain (IMO) non-commercial.

If not, this approval is, ironically, not that big a deal thanks to other EOs. For most or all agencies (not just DHS), most or all new contracts have to go through five to ten SES/C-Suite approvals anyways, - something like CO, HCA, Agency COS/CFO/COO, Agency Head, Department Acquisition Staff, anonymous approver not in Department, SPE. Sometimes this happens twice, solicitation and then again for award. Adding another SPE J&A is just adding a few more freight cars onto the train. Still true for even more SPE J&As (like for contracts instead of using GWAC/GSA). It all reminds me of Catch-22's loyalty oaths.

Agree, don't go first with commercial construction. I'd probably let the experts - Corps of Engineers (1,000 construction contracts last year, $3B), GSA or DOT (each with few hundred worth ~$1B) - take lead here.

AIA A201 is entitled "General Conditions for the Contract of Construction." Section 7 talks about changes, and, to my reading, is actually very similar to the traditional 52.243-4 or -5 arrangement. The "Owner" can issue a "Construction Change Directive" within the general scope of the contract in advance of a mutually agreed upon price impact and the contractor has to perform. There are procedures laid out for how to resolve the dispute, blah blah blah. VERY different than the "mutual agreement of the parties" language at 52.212-4.

Sample AIA document here: AIA Document A201-2017 - Sample

2 hours ago, Vern Edwards said:

DO NOT attempt "tailoring" Part 12 clauses on your own, unless you are truly expert, and I mean EXPERT, not just "experienced", in construction contracting.

That's good advice if the CO has a choice. The EO now requires the CO to seek higher-level approval, which they may not get.

@GeoJeff Remember that you can tailor FAR 52.212-4 to include other FAR clauses if they are consistent with customary commercial practice. Are the FAR construction clauses consistent with customary commercial practice? If so, why not include them by addendum?

Just now, Don Mansfield said:

Are the FAR construction clauses consistent with customary commercial practice? If so, why not include them by addendum?

The FAR clauses for fixed-price construction contracts are similar, but identical to, to the AGC's terms and conditions.

Where is Joel Hoffman when we need him?

Construction is a very tough business done by very tough people. Don't mess around.

I know--this thread is Joelnip.

13 hours ago, Don Mansfield said:

The problem is that the FAR part 2 deviation guidance specifically includes construction in the definition of "commercial service," and FAR requires the use of part 12 when buying commercial services.

This may be an unintended consequence of the recent separation of the old "commercial item" definition into "commercial product" and "commercial service". The product one retained the statutory "(1) A product, other than real property..." language. Many offices were relying on this language to call construction noncommercial, and then they continued to do so for lack of anything explicit about construction in the service definition.

How can RFO affect a statutory definition? I wonder if RFO and Congress will butt heads over this.

15 hours ago, Don Mansfield said:

FAR requires the use of part 12 when buying commercial services

Don, I don't see a "shall" in the RFO Part 12 where one used to be, at current FAR 12.102(a). The new RFO 12.101 preference seems more permissive, allowing market research to drive the decision.

@GeoJeff

My read of the RFO change to Part 2 is that now commercial construction is an option where it used to be verboten.

If your market research says it's commercial but you do not want to tailor the commercial clause, you could try to use sealed bidding if bids are a commercial practice. The RFO did not substantially change these:

6.101 Full and open competition.

(a) Except as authorized by 6.102 and 6.103, contracting officers must obtain full and open competition by using competitive procedures to solicit offers and award Government contracts (see 10 U.S.C. 3201 and 41 U.S.C. 3301).

(b) Contracting officers must use the competitive procedure, or combination of procedures, best suited to efficiently fulfill the Government’s requirements. Competitive procedures include sealed bids, competitive proposals, and other procedures explicitly authorized by statute.

(1) Sealed bids. For sealed bidding procedures, see part 14. Use sealed bids only when the contracting officer has found that all of the following apply:

(i) Time permits staff to solicit, submit, and evaluate sealed bids;

(ii) The award will be made on the basis of price and other price-related factors;

(iii) Discussion with bidders is unnecessary; and

(iv) Contracting officers reasonably expect to receive more than one sealed bid.

(2) Competitive proposals. For competitive proposal procedures, see part 15.

36.101 Construction.

36.101-1 Acquisition Strategy.

(a) The contracting officer will only use sealed bid procedures (see part 14) for a construction contract if the conditions in part 6 for use of sealed bidding are met. However, the contracting officer should not use sealed bidding if the contract will be performed outside the United States and its outlying areas.

Try seeing what the VA does with sealed bidding on SAM.gov if you have not done it before. The SF 1449 has been verboten in its construction contact shops for decades (until now).

10 minutes ago, WifWaf said:

Don, I don't see a "shall" in the RFO Part 12 where one used to be, at current FAR 12.102(a). The new RFO 12.101 preference seems more permissive, allowing market research to drive the decision.

I don't think that's different than the current policy at FAR 10.002(d)(1).

31 minutes ago, WifWaf said:

This may be an unintended consequence of the recent separation of the old "commercial item" definition into "commercial product" and "commercial service". The product one retained the statutory "(1) A product, other than real property..." language. Many offices were relying on this language to call construction noncommercial, and then they continued to do so for lack of anything explicit about construction in the service definition.

I don't doubt offices were doing that, but it makes no sense. Purchasing construction is not purchasing real property.

MEMORANDUM FOR AGENCY SENIOR PROCUREMENT EXECUTIVES FROM: Angela B. Styles (signed), OFPP Administrator SUBJECT: Applicability of FAR Part 12 to Construction Acquisitions

July 3, 2003

The provisions and clauses in FAR Part 36 address all fundamental aspects of construction contracting. Part 36 applies well-established commercial principles that are designed to result in an equitable distribution of risk between the government and contractors. In doing so, Part 36 enables agencies to gain easy access to marketplace capabilities.

By contrast, FAR Part 12 lacks clauses for handling critical circumstances common to construction efforts, especially those involving new construction or non-routine alteration and repair services. Clauses that would typically be expected in these efforts include those addressing differing site conditions, change orders, and suspension of work. The gap in coverage reflects the fact that construction contracting was not generally contemplated when Part 12 was promulgated. New construction projects and complex alteration and repair, in particular, involve a high degree of variability, including innumerable combinations of site requirements, weather and physical conditions, labor availability, and schedules. The current coverage in Part 12 fails to allocate risk in a manner that takes into account the nature of these activities.

...

This memorandum is not intended to limit the goal of FAR Part 12, which is to ensure agencies are effectively positioned to take full advantage of the commercial marketplace and the value and efficiencies the marketplace generates. In fact, Part 12 clauses generally are suited for certain types of construction activities that lack the level of variability found in new construction and complex alteration and repair. In particular, Part 12 generally may be suited for routine painting or carpeting, simple hanging of drywall, everyday electrical or plumbing work, and similar noncomplex services, as well as for purchases of commercial construction material and associated ancillary services. Of course, as part of acquisition planning, contracting officers need to consider the particular circumstances of a given acquisition (e.g., the likelihood of a differing site condition) to determine if the current clauses in Part 12 properly allocate risk.

That's from OFPP: MEMORANDUM FOR AGENCY SENIOR PROCUREMENT EXECUTIVES FROM: Angela B. Styles (signed), OFPP Administrator SUBJECT: Applicability of FAR Part 12 to Construction Acquisitions, July 3, 2003

https://georgewbush-whitehouse.archives.gov/omb/procurement/far/far_part12.pdf

Vern,

I remember that! That language about "routine painting or carpeting..." is mirrored exactly at GSAM 512.203(c): (bold added)

(c)  Contracting for Construction. The provisions and clauses in FAR 36 and GSAM part  536 address the fundamental aspects of construction contracting. FAR 36 and GSAM part  536 apply well-established commercial principles that are designed to result in an equitable distribution of risk between the Government and its contractors. The contracting officer should consider the following when contemplating a construction acquisition as a commercial purchase—

(1) FAR 12, as currently promulgated, should rarely be used for new construction acquisitions or non-routine alteration and repair services.

(2) FAR 12 and GSAM part  512 may be used in limited circumstances involving construction contracting, primarily for routine alteration and repair services as well as for the acquisition of commercial construction materials and associated ancillary services. It may be appropriate to use FAR 12 and GSAM part  512 for routine projects such as painting or carpeting, simple hanging of drywall, everyday electrical or plumbing work, and similar noncomplex services, as well as for purchases of commercial construction material and associated ancillary services.

(3) Whether a construction acquisition is conducted under FAR 36 or FAR 12, the contracting officer must adhere to the policies of FAR Subpart 22.4. This subpart addresses labor standards for contracts involving construction. Prior to making the determination that a construction acquisition can be conducted as a commercial purchase, the contracting officer should conduct appropriate market research in accordance with FAR 10 and GSAM part 510.

(4)  Construction contracts in excess of $2,000 must include an applicable Construction Wage Rate Requirements statute wage determination found under the System for Award Management Wage Determinations at https://www.sam.gov. If the construction contract is greater than $30,000, then the SF 1442 should be used in lieu of the SF 1449 and the bonds or alternate payment protection provisions of FAR 28.102-1, 28.102-2 and 28.102-3 apply.

(5) Construction contracts awarded as commercial acquisitions should not exceed the prospectus threshold. The prospectus threshold as referenced in section 102-73.35 of the Federal Management Regulation (FMR) is posted at https://www.gsa.gov/annualprospectusthreshold

I think that also tracks with the FAR definition of commercial services needing to have "established catalog or market prices." Painting, carpeting, drywall, concrete, asphalt...these are all things that have a market, unit price like per square foot or per cubic yard. Building a new office building, not so much.

On 9/2/2025 at 10:21 AM, GeoJeff said:

question:

(2) Services, including construction, of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions

This bolded language, by itself would disqualify most construction projects of any complexity, as a full blown construction projects aren’t priced based upon established catalog prices or market prices.

Even when Sears Roebuck sold houses out of its catalogs over 100 years ago, I believe that it was only for the plans and materials, not including the construction of the kits.

I agree with Vern’s assessment.

Construction contractor’s generally don’t write the contract language or design and prepare the plans and specifications for complete construction projects in commercial practice.

Note that the AIA and other standard model specs like NSPE, ASCE, are prepared for specific contracts by licensed architects and engineers, who are the designers of record. The DOR’s , have both statutory and regulatory responsibilities for not only the functionality and performance but also for durability and life safety aspects of projects. .

I can see using Part 12 for:

15 minutes ago, GeoJeff said:

It may be appropriate to use FAR 12 and GSAM part  512 for routine projects such as painting or carpeting, simple hanging of drywall, everyday electrical or plumbing work, and similar noncomplex services, as well as for purchases of commercial construction material and associated ancillary services.

Also for repairs or replacement of individual building components like an A/C unit or other components in a building for instance.

But one would be a complete fool to use Part 12 for a full construction project.

I agree with @GeoJeff assessment, too.

Of course, the Part 12 payment procedures (no progress payments, no payment for stored materials, etc. prior to completion and acceptance don’t work for construction contractors.

The requirements for bilateral agreement to make changes would likely cause massive disruption and schedule impacts as well as chaos in pricing changes and time extensions and in determining entitlement to compensation for delays and impacts.

49 minutes ago, joel hoffman said:

This bolded language, by itself would disqualify most construction projects of any complexity, as a full blown construction projects aren’t priced based upon established catalog prices or market prices.

Would you say the construction of an Amazon distribution center is NOT based on market prices?

Serious question.

The RFO has created a new thing, commercial construction. What is the advantage of this?

As I think about the payments issue, much of the apparent advantage of commercial contracts compared to construction is illusory.

• As I understand it, a commercial construction contract is really construction first, and commercial second. A commercial construction contract will much more closely resemble an old-school FAR 36 construction contract than a purchase order.

  • For Commercial construction, clauses for construction vs. commercial services conflict. When they do, I assume that 36 trumps FAR 12, so clauses like 52.232- 5 Payments under Fixed-Price Construction Contracts are added to a commercial construction contract. Conflicting payment terms are lined out

  • The customary practices of construction lean much more towards FAR 36 than 12. FAR 52.212-4 would have to be heavily tailored for construction (for T&C not in a construction clause).

  • Other clauses and statutory requirements found in FAR 36 and 22 don't conflict with FAR 12, rather they were not applicable to commercial services. Now they are applicable, if its construction. Things like Davis-Bacon.

• RFO means less benefit for using commercial vs. construction. The RFO Part covering construction has removed a lot of text, which presumably translates into streamlining construction procedures. This narrows the gap between using FAR 12 vs. FAR 36.

• The people actually writing these contracts will probably continue to be construction-specialists. In the contracting offices I am familiar with, construction contracting is separate tract, and quite different from other sorts of contracting. I know of very few COs who evenly work on both construction and standard commercial services contracts.

• When the very wise and experienced user base of wifcon says "don't do it", as they are when it comes to 'commercial construction', you probably shouldn't do it.

On the other hand...my department did a lot of well-drilling recently. This is a completely commercial service and construction. If the customer were a private citizen or business, the deal could have been made in hours, not weeks. So if, somehow, we could have used mostly standard purchase orders for well drilling, that would have been great and saved many people a great deal of time and effort for exactly the same result.

1 hour ago, GeoJeff said:

Painting, carpeting, drywall, concrete, asphalt...these are all things that have a market, unit price like per square foot or per cubic yard.

I'm not so sure about that. I think the price of a carpet installation job depends on more than just the number of square feet. I think configuration and installation conditions matter, as well. But, admittedly, it's been awhile.

Of course, what all of this points out is the absurdity of trying to establish standard rules for work that can vary in many, many ways from job to job.

Look 𑁋 the government's notion about what is and is not "commercial" is dubious. We're talking about words defined and applied by bureaucrats trying to write one set of rules that will apply to widely various transactions and relationships in a wide variety of industry specialties.

Is hiring someone to paint a room construction? No.The painter is not constructing anything. It's painting. It's only construction to a labor statistician and to someone trying to decide whether the Davis-Bacon Act should apply.

Blah, blah, blah. Critical thinking, please.

15 hours ago, Vern Edwards said:

Critical thinking, please.

This attempt may be to simplistic but here you go.

First, what does the Federal government construct that is not constructed or otherwise offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions? One can imagine catalog prices ( I provided an example in a previous post - pole buildings) and I believe one can imagine market prices or in other words construction services sold in a specific market. I therefore think there are market prices for almost anything that is constructed. My conclusion is what the Federal government constructs can be a commercial service almost all the time. Or in other words what out there does the Federal government seek as construction services that is not already provided in the commercial market place? I do not think my experiece is limited and I have a hard time imagining what it might be!

The push pull then becomes the fact that Federal government construction service acquisition is not only intended to achieve a specific end result (construct this or that) but is must fulfill the publics interest and a nationalistic view of mission accomplishment. This inherent difference suggests something more important than why say Carl needs construction services and why the Federal government has a need to handle construction services in some cases a little differently.

I believe this difference is key. As I shared in my first post and has been repeated specifically or implied market research is the key. So I am a subtle distraction from the rest, I would do it, but when I do my reasoning is going to be sound. And if I was not going to do it I would not flinch at getting higher level approval and in my view the highler level better be ready to react quickly for the puclic interest and mission accomplishment.

For a complete construction project, I’m not sure what you are trying to accomplish with a Part 12 commercial service contract format. I can see how a Part 12 Contract could be useful for simple efforts like that I mentioned earlier - installing, replacing or repairing individual items of real property installed equipment, small painting projects, etc.

But for a construction project , the DoD doesnt use the Uniform Contract Format for construction contracts.

It uses the Construction Specifications Institute’s CSI MasterFormat, which is a standard construction industry contract format.

The Unified Facility Guide Specifications UFGS are written in the CSI Format. They incorporate standard industry commercial materials, equipment and installation procedures plus mandatory federal design criteria.

The contract clauses also allocate risk and assign standard roles and responsibilities between the contract parties.

The contract format and roles and responsibilities are not unlike commercial construction contracting for similar type projects.

The standard basic construction contract clauses aren’t that many and generally resemble many non-federal construction contracts.

I would agree that there are a large number of social engineering and bureaucratic clauses that Congress has interjected.

What corners are you trying to cut ?

On 9/3/2025 at 4:25 PM, Vern Edwards said:

I'm not so sure about that. I think the price of a carpet installation job depends on more than just the number of square feet. I think configuration and installation conditions matter, as well. But, admittedly, it's been awhile.

Of course, what all of this points out is the absurdity of trying to establish standard rules for work that can vary in many, many ways from job to job.

Look 𑁋 the government's notion about what is and is not "commercial" is dubious. We're talking about words defined and applied by bureaucrats trying to write one set of rules that will apply to widely various transactions and relationships in a wide variety of industry specialties.

Is hiring someone to paint a room construction? No.The painter is not constructing anything. It's painting. It's only construction to a labor statistician and to someone trying to decide whether the Davis-Bacon Act should apply.

Blah, blah, blah. Critical thinking, please.

It is especially difficult to price out "commercial" materials for requirements overseas. There isn't just some catalog or online tool that can cover all locations, especially the local prices in a high threat post, or in a developing nation. Relying on tried and true pounding of the pavement to conduct market research and gather pricing data is oftentimes what must occur in order to receive reliable pricing data in those places. Doesn't matter if it's an HVAC project or a densification - if it's overseas, a LOT of other factors figure in such as a complex web of logistics, security, design, local coordination, VAT issues and so forth. Installing an HVAC system in Abidjan is going to be a far different animal than installing a similar system in Dallas.

There aren’t standard catalog prices for most construction projects. Don’t consider the “Means Estimating Guide” as “catalog pricing”.

It can provide unit priced estimates but each item must be estimated by applicable quantity and the underlying basis for an estimate depends upon applicable labor rates, available equipment and several other variable conditions.

7 hours ago, joel hoffman said:

What corners are you trying to cut ?

Of sorts a dang good question. Is it really an attempt to "cut corners" or exercise the use of procedures that might quicken the acquistion?

I spent a little time refreshing my brain with regard to FAR Part 36 and then the FAR Part 36 "Deviation". Using the Deviation it appears that none of the "must" clauses conflict with FAR 52.212-4 so inserting into a commercial construction service contract is plausible. Nothing prevents the tailoring of the Changes paragraph in clause 52.212-4 if commercial practice demonstrates that limiting changes to a unilateral right exists. I think there is a suggestion that limiting to a unilateral rights does exist in the commercial market. Then there is the "Payment" paragraph that has been discussed. But are progress payments allowed by the wording of the FAR and the use of 52.232-5 a "payment" or a form of contract financing allowed by the FAR? Me thinks the latter and again if a financing payment I see nothing in the FAR Part 12 Deviation that would prevent contract financing and one might conclude it is encouraged (Ref. FAR 12.108).

So my quickly researched and arrived at conclusion spins back to your question rephrased - What is gained by calling construction services commercial? The gain seems to be the ability to utilize simplified acquisition procedures which by implication suggests a more expedited process for the acquisition of construction services up to $7.5 million.

On 9/4/2025 at 5:59 AM, C Culham said:

My conclusion is what the Federal government constructs can be a commercial service almost all the time.

I agree in the general sense of the word commercial. But then we have to ask whether the policies in FAR Part 12 are suitable.

8 hours ago, joel hoffman said:

What corners are you trying to cut?

Good question. What if you were the CO for the construction of missile silos for the new Sentinel ICBM?

See Association of General Contractors: https://www.agc.org/construction-not-commodity

4 minutes ago, Vern Edwards said:

I agree in the general sense of the word commercial. But then we have to ask whether the policies in FAR Part 12 are suitable.

Good question. What if you were the CO for the construction of missile silos for the new Sentinel ICBM? What market prices are there?

See Association of General Contractors: https://www.agc.org/construction-not-commodity

The Association of General Contractors represents a huge share of the construction market.

And in my opinion, the DoD construction contractor format, using the Construction Specifications Institute’s MasterFormat is already a standard format in use in the marketplace.

24 minutes ago, C Culham said:

The gain seems to be the ability to utilize simplified acquisition procedures which by implication suggests a more expedited process for the acquisition of construction services up to $7.5 million.

The construction industry requires more time than a couple of weeks to just develop a bidding team, seek qualified, competitive subcontractors and suppliers, determine the scope of work, estimate quantities of materials and work, develop a construction approach, obtain bids, etc. Generally a site visit is necessary to see and also identify the conditions , locations, ask questions etc.

The industry already complains about having only 30 days to prepare and submit price proposals for non-design-build, construction projects .

For Design-build competitions, one must add some time for the firms and their teaming partners to develop enough preliminary design to estimate and price a proposal. We recommend 45 days in lieu of 30 days for D-B competitions.

In my experience, there is often room for improvements in initial pricing in a RFP due to many factors.

I have often been able to shave millions of dollars off initial proposed pricing that were due to uncertainties in conditions, ambiguous specs that drove up prices from subs, suppliers that see designs around certain specific equipment, etc.

On one large Air Force Project, we found alternate sources for high volume compression Turbines that dropped the price of that major equipment by $3 million from the initial proposed price.

In another instance, lack of identification of elevation to rock and to water tables on a very long, elevated, high volume, high velocity heated/chilled air line resulted in over $2 million in contingencies by foundation subcontractors for uncertainties and possibility of encountering rock excavation and de-watering.. We added unit-priced line items for rock excavation and de-watering. The proposers dropped prices by $2 million

In the end, we had a $1 million dollar underrun in those unit priced line items, resulting in over saving $3 million dollars below the initial proposed prices.

Those are but examples of dollar savings and/or improvements/corrections in the solicitations thst end up saving dollars and after award conflicts/delays/corrective action, etc.

Cutting corners to “expedite the process for the acquisition of construction services up to $7.5 million” doesn't serve the best interests of either the industry or the taxpayers.

(Note my examples cited reflect mid 1990’s pricing and lessons-learned. Current dollar levels for the same problems would be much higher.)

9 minutes ago, joel hoffman said:

In another instance, lack of identification of elevation to rock and to water tables on a very long, elevated, high volume, high velocity heated/chilled air line resulted in over $2 million in contingencies by foundation subcontractors for uncertainties and possibility of encountering rock excavation and de-watering.. We added unit-priced line items for rock excavation and de-watering. The proposers dropped prices by $2 million

In the end, we had a $1 million dollar underrun in those unit priced line items, resulting in over saving $3 million dollars below the initial proposed prices.

Joel, foot stomp this. This is where critical thinking matters the most - in proposal analysis. Unfortunately, the RFO changes to Part 52 and Part 11 have removed Subpart 11.7's variation in quantity guidance and removed FAR 52.211-18 Variation in Estimated Quantity. The clause must be reinserted via public comment on the Federal Register during this administration. Gosh, yours and my experience alone with this clause is reason enough to reinsert it. Wth!

"Move quickly, fail fast", they say. I get it, but it sure is a wild ride.

11.702 Construction contracts.

Construction contracts may authorize a variation in estimated quantities of unit-priced items. When the variation between the estimated quantity and the actual quantity of a unit-priced item is more than plus or minus 15 percent, an equitable adjustment in the contract price shall be made upon the demand of either the Government or the contractor. The contractor may request an extension of time if the quantity variation is such as to cause an increase in the time necessary for completion. The contracting officer must receive the request in writing within 10 days from the beginning of the period of delay. However, the contracting officer may extend this time limit before the date of final settlement of the contract. The contracting officer shall ascertain the facts and make any adjustment for extending the completion date that the findings justify.

11.703 Contract clauses.

(a) The contracting officer shall insert the clause at 52.211-16, Variation in Quantity, in solicitations and contracts, if authorizing a variation in quantity in fixed-price contracts for supplies or for services that involve the furnishing of supplies.

(b) The contracting officer may insert the clause at 52.211-17, Delivery of Excess Quantities, in solicitations and contracts, when a fixed-price supply contract is contemplated.

(c) The contracting officer shall insert the clause at 52.211-18, Variation in Estimated Quantity, in solicitations and contracts when a fixed-price construction contract is contemplated that authorizes a variation in the estimated quantity of unit-priced items.

52.211-18 Variation in Estimated Quantity.

As prescribed in 11.703(c), insert the following clause in solicitations and contracts when a fixed-price construction contract is contemplated that authorizes a variation in the estimated quantity of unit-priced items:

Variation in Estimated Quantity (APR 1984)

If the quantity of a unit-priced item in this contract is an estimated quantity and the actual quantity of the unit-priced item varies more than 15 percent above or below the estimated quantity, an equitable adjustment in the contract price shall be made upon demand of either party. The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above 115 percent or below 85 percent of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completion, the Contractor may request, in writing, an extension of time, to be received by the Contracting Officer within 10 days from the beginning of the delay, or within such further period as may be granted by the Contracting Officer before the date of final settlement of the contract. Upon the receipt of a written request for an extension, the Contracting Officer shall ascertain the facts and make an adjustment for extending the completion date as, in the judgement of the Contracting Officer, is justified.

(End of clause)

5 minutes ago, WifWaf said:

Joel, foot stomp this. This is where critical thinking matters the most - in proposal analysis. Unfortunately, the RFO changes to Part 52 and Part 11 have removed Subpart 11.7's variation in quantity guidance and removed FAR 52.211-18 Variation in Estimated Quantity. The clause must be reinserted via public comment on the Federal Register during this administration. Gosh, yours and my experience alone with this clause is reason enough to reinsert it. Wth!

"Move quickly, fail fast", they say. I get it, but it sure is a wild ride.

WOW!!!! @WifWaf I absolutely agree with you!!!!!! What idiots decided to remove this time and case law tested VEQ coverage??????

1 hour ago, joel hoffman said:

The construction industry requires more time than a couple of weeks to just develop a bidding team, seek qualified, competitive subcontractors and suppliers, determine the scope of work, estimate quantities of materials and work, develop a construction approach, obtain bids, etc. Generally a site visit is necessary to see and also identify the conditions , locations, ask questions etc.

One of the problems is that 19th Century thinking underlies our acquisition policies, with its emphasis on full and open competition to produce "fair and reasonable prices" and prevent corruption, using the bid protest system to encourage protesters acting as "whistleblowers".

In complex relational acquisitions, as opposed to comparatively simple transactional acquisitions, "price" (see FAR 15.401) is really nothing more than an agreed upon budget. It is not a "price" in any formal economic or legal sense. And full and open competition policy is implemented by a complex and costly process of contractor selection and contract formation that usually involves little in the way of communications entailing joint specification, planning, and budgeting. It's madness, really.

Instead of having to entertain proposals from all comers, we should choose competitors wisely and in manageable numbers, choose a prospective contractor based on qualifications, not dollar amount, and then engage in joint planning and budgeting (i.e., "pricing") prior to contract formation. Our competitive "negotiation" process is still grounded in the "formal advertising" (now sealed bidding) process of pre-CICA The result is that the rules of our competitive contractor selection/contract formation processes effective preclude meaningful communication prior to contract award, which is the defect at the heart of many of our most pressing contracting problems.

2 hours ago, joel hoffman said:

WOW!!!! @WifWaf I absolutely agree with you!!!!!! What idiots decided to remove this time and case law tested VEQ coverage??????

2 hours ago, WifWaf said:

Joel, foot stomp this. This is where critical thinking matters the most - in proposal analysis. Unfortunately, the RFO changes to Part 52 and Part 11 have removed Subpart 11.7's variation in quantity guidance and removed FAR 52.211-18 Variation in Estimated Quantity. The clause must be reinserted via public comment on the Federal Register during this administration. Gosh, yours and my experience alone with this clause is reason enough to reinsert it. Wth!

"Move quickly, fail fast", they say. I get it, but it sure is a wild ride.

The clause was removed because it’s not required by statue. The guidance says contracting officers are free to use this clause or any variation they like based on the instant procurement. In others words it’s discretionary and not mandatory.

13 minutes ago, formerfed said:

The guidance says contracting officers are free to use this clause or any variation they like based on the instant procurement.

Where is that guidance?

42 minutes ago, Vern Edwards said:

Where is that guidance?

I asked a personal friend this question by a text massage. They referred me to FAR 1.102 and the original EO direction that only language required by statue gets included. This clause isn’t required by law.

1.102 Guiding principles for the System.The contracting officer must have the authority, to the maximum extent practicable and consistent with law, to determine how and when to apply rules, regulations, and policies on a specific contract.

1 hour ago, formerfed said:

The clause was removed because it’s not required by statue. The guidance says contracting officers are free to use this clause or any variation they like based on the instant procurement. In others words it’s discretionary and not mandatory.

This is one of the problems with the "statutory" filter they are using for the RFO - even if some language in the FAR is not required by statute, that language could be useful in producing better acquisition outcomes for both parties.

As to whether contracting officers free to use the clause or any variation will do so, I doubt it with the current state of education and training in our profession and the mandate of contract writing systems/clause logic generators that constrain contract writing. Many people will not know to use this clause or others like it (or even that they exist or how to find them post-RFO transition), while others simply will not want to go through the trouble of fighting the system(s) to do so.

Meanwhile, other language not required by statute remains. See RFO FAR 12.304(b)(1) "Before terminating a contract for cause, send a cure notice to the contractor, unless the reason for the termination is late delivery." I had my eye on whether that language (which is in the current FAR at 12.403(c)(1) "The contracting officer shall send a cure notice prior to terminating a contract for a reason other than late delivery.") would stay, go, or be rewritten after a frustrating experience where it constrained our options on an important service contract. I have found no statutory basis for that language/requirement for a cure notice.

At least they're consistent in their inconsistency...

There will be little or no consistency in how to manage variations in estimated quantities if there isn’t a standardized approach. It is necessary coverage for unit priced contracts or line items with estimated quantities that might vary due to difficulty or impossibility to strictly fix quantities, e.g., rock excavation, undercut and backfill, encountering unsuitable subgrade materials, etc.

The interpretation and application of the FAR VEQ clause has been litigated and defined by case law for several decades.

It would be stupid IMO to leave it up to individual KO’s or organizations to write clauses or price VEQ’s. It must be standardized and consistent.

There is no need to reinvent the wheel.

Who are the people editing these sections of the FAR???

P.S. the VEQ clause isn’t applicable to pricing changes in the amount of work that is to be unit priced.. It’s meant for variations between estimated and actual quantities of work that is performed under the scope of the required work. If I want to add additional work, it’s a change

8 hours ago, joel hoffman said:

There is no need to reinvent the wheel.

Who are the people editing these sections of the FAR???

I've met one of the people working on the RFO during my professional travels. This person is smart, well meaning, and highly competent in contracting. I'm not sure this person has ever done serious construction contracting. Probably done just about everything else. Construction contracting is niche, as far as it goes. My first job in the Air Force was as a contract specialist for the simplified acquisition of base engineering requirements. I did it for about 18 months and moved on. I haven't touched construction in the 20 years since. I'm mostly unqualified to seriously engage in construction contracting matters.

What I'm getting at is that there are some parts of the FAR that are idiosyncratic and the generalists working RFO need to bring in relevant expertise. It doesn't sound like they've done that. The required timeline is probably driving that, but I have no insight.

I guess while I'm here, the contracting officer that trained me, when I was a 2nd Lt, was an Air Force Staff Sargent. He knew everything, and I'm forever in his debt. He went on to play some leadership role in the Pentagon renovation that happened post 9-11, and as far as I know he did very well there.

@KeithB18 thank you for your insight and reflection. I agree with you.

Back in 1971-1972, as a fresh Air Force 2LT civil engineer, I was assigned to replace a Captain as the project engineer on a unique, Air Force awarded, Design-Build Military Family Housing Project at Castle AFB in Atwater/Merced CA.

I worked very closely with a Tech Sgt. who was assigned as the contract specialist in the Base Contracting Office. We became good friends. It was a good project.

22 hours ago, Vern Edwards said:

I agree in the general sense of the word commercial. But then we have to ask whether the policies in FAR Part 12 are suitable.

Do you mean policies or the procedures? It seems this is what needs to be sorted out.

21 hours ago, joel hoffman said:

The construction industry requires more time than a couple of weeks to just develop a bidding team, seek qualified, competitive subcontractors and suppliers, determine the scope of work, estimate quantities of materials and work, develop a construction approach, obtain bids, etc. Generally a site visit is necessary to see and also identify the conditions , locations, ask questions etc.

Remember my posts have attempted to put it all in perspective. Its seems all want to morph to the 800 pound gorilla construction service acquisitions. I agree there is huge difference between building a shed and a bomb disposal facility. My intent is to pose that it makes entire sense from my view that using say FAR Part 12 and their companion procedures (subpart 13.5) can make a lot of sense for a shed or better yet someting estimated up to $7.5 million.

16 hours ago, joel hoffman said:

There will be little or no consistency in how to manage variations in estimated quantities if there isn’t a standardized approach.

I would question whether there is consistency now with regard to process and procedures being used to acquire and adminsiter construction service contracts NOW!

1 hour ago, C Culham said:

Remember my posts have attempted to put it all in perspective. Its seems all want to morph to the 800 pound gorilla construction service acquisitions. I agree there is huge difference between building a shed and a bomb disposal facility. My intent is to pose that it makes entire sense from my view that using say FAR Part 12 and their companion procedures (subpart 13.5) can make a lot of sense for a shed or better yet someting estimated up to $7.5 million.

Disagree about an up to $7.5 million project.

Have already agreed here more than once about truly small, simple projects (e.g. a “shed” , painting A building, runway rubber removal, replace windows in A building) or purchase orders to add, fix or replace some real property installed equipment.

As a general comment, I believe using the FAR Uniform Contract Format is about as far away from commercial construction contracting formats as it gets.

MasterFormat is a commercial construction contracting format.

For those wanting to use commercial construction contracting formats, if they can’t figure out how to use MasterFormat, they shouldn’t be doing construction contracting for anything more than the small, simple stuff.

It’s already obvious to me that whoever is in charge of the re-write doesn't know much, if anything about the actual workings of construction contracting. The voluntary VEQ language is a glaring example

It’s the Wild West approach, lacking any consistency and ignoring long held case law.

read somewhere recently where the rewrite process can include non-statutory language that is necessary to promote efficiency, consistency or avoid problems…

Edit: the FAR Part 43 is an example of including non-statutory but essential language. For instance, the Changes Clause and bilateral application are not statutory.

Is there a “comparator”, somewhere, that has the existing and new FAR language side by side , similar to the FAR Part 15 rewrite in 1996-1997.

Edit: I see that there is a “practitioner album”with some “summary of changes” and “line out” of the sections. However, in reading some of the line outs they leave incomplete sentences in many instances and completely delete scope of the part and paragraph titles.

On 9/6/2025 at 8:22 AM, joel hoffman said:

Is there a “comparator”, somewhere, that has the existing and new FAR language side by side , similar to the FAR Part 15 rewrite in 1996-1997.

Edit: I see that there is a “practitioner album”with some “summary of changes” and “line out” of the sections. However, in reading some of the line outs they leave incomplete sentences in many instances and completely delete scope of the part and paragraph titles.

Joel,

I've been creating line-in line-out versions of the changes and posting them on my web site: www.donacquisition.com.

51 minutes ago, Don Mansfield said:

Joel,

I've been creating line-in line-out versions of the changes and posting them on my web site: www.donacquisition.com.

Thanks, Don!

On 9/5/2025 at 1:07 PM, formerfed said:

The guidance says contracting officers are free to use this clause or any variation they like

Agency supplements, however, restrict or control contracting officers' ability to use their own clauses, see DFARS 201.304(4), for example. So agencies would likely have to incorporate this clause back into their own supplements to make it usable without individual approval each time.

2 hours ago, Witty_Username said:

Agency supplements, however, restrict or control contracting officers' ability to use their own clauses, see DFARS 201.304(4), for example. So agencies would likely have to incorporate this clause back into their own supplements to make it usable without individual approval each time.

I think you’re missing the point of my post. The clause in question is an existing FAR clause that’s mandatory for use. The FAR overhaul is making the clause optional. So a contracting officer may decide to use the clause if they like it but it’s not required. They wouldn’t be making up their own clause and agencies wouldn’t have to incorporate back into their supplements.

On 9/9/2025 at 3:48 PM, formerfed said:

I think you’re missing the point of my post. The clause in question is an existing FAR clause that’s mandatory for use. The FAR overhaul is making the clause optional. So a contracting officer may decide to use the clause if they like it but it’s not required. They wouldn’t be making up their own clause and agencies wouldn’t have to incorporate back into their supplements.

Ah, I was understanding the RFO to have removed the clause from the FAR entirely, throwing it into the realm of agency or local clauses. If it remains optional that would be much easier to deal with.

2 hours ago, Witty_Username said:

Ah, I was understanding the RFO to have removed the clause from the FAR entirely, throwing it into the realm of agency or local clauses. If it remains optional that would be much easier to deal with.

👍🏻

5 hours ago, Witty_Username said:

Ah, I was understanding the RFO to have removed the clause from the FAR entirely, throwing it into the realm of agency or local clauses. If it remains optional that would be much easier to deal with.

You are understanding correctly. The clause is completely removed from the FAR in the deviation guidance.

1 hour ago, Don Mansfield said:

You are understanding correctly. The clause is completely removed from the FAR in the deviation guidance.

@Witty_Username @Don Mansfield My error. When I contacted a friend working on the overhaul with this clause question, her reply was “the contracting officer has the option to include this.” I mistakingly thought the clause was optional.

Ineptitude (ok, a “mistake”?) to say that the KO can use a clause that doesn’t exist.

Is every KO or Organization supposed to reinvent the wheel and invent their own clause to cover ranges of overruns and underruns of unit priced line items and include their own clause and implementation guidance in a FAR supplement?

One of the purposes of the FAR has been to have uniform and consistent contracting policies.

I will repeat - some new FAR coverage has included non-statutory language where deemed necessary for good practices. Case law has defined the interpretation of the present FAR clause.

@joel hoffman This is one of my main criticisms of the FAR Overhaul. Presumably, a clause is in the FAR because it meets the conditions for publication in 41 USC 1707. If you remove it, and agencies come up with their own versions, they would probably have to be published in the agency's FAR supplement. So what would be achieved? Chapter 1 of Title 48 gets shorter, but all of Title 48 gets longer. FAR 1.304(c) states "coverage that is not particular to one agency shall be recommended for inclusion in the FAR." This mitigates the risk of each agency coming up with their own unique clauses that achieve the same purpose.

9 hours ago, Don Mansfield said:

@joel hoffman This is one of my main criticisms of the FAR Overhaul. Presumably, a clause is in the FAR because it meets the conditions for publication in 41 USC 1707. If you remove it, and agencies come up with their own versions, they would probably have to be published in the agency's FAR supplement. So what would be achieved? Chapter 1 of Title 48 gets shorter, but all of Title 48 gets longer. FAR 1.304(c) states "coverage that is not particular to one agency shall be recommended for inclusion in the FAR." This mitigates the risk of each agency coming up with their own unique clauses that achieve the same purpose.

Don, thanks. I agree. Is it too late to correct this blunder?

On 9/11/2025 at 3:18 PM, joel hoffman said:

One of the purposes of the FAR has been to have uniform and consistent contracting policies.

Agreed but I would suggest that the departure from uniform and possilbly consistent started the day the FAR was originally published and the departure grew through to today. I think a cruise of solicitation packages found on SAM.gov would support my view.

I also agree that the Federal government contracting case law is significant and would support use of something like a variation in estimated quantity use as being consistent. But back to the original thoughts of this thread as construction being commercial is there not significant case law with regard to AIA and UCC supported contracting terms and conditions?

All begging the question as to whether Federal contracting should be unique? I say yes circling back to my statement that the intent of the FAR and its promotion of uniform and consistent acquisition policies is to fulfill the publics interest and a nationalistic view of mission accomplishment. And the statutes while lynch pin to this ideal, the FAR and its content beyond the statutes is needed to further promote the ideal. The rewrite is necessary but I would agree whole heartedly that it is headed in the wrong direction.

13 hours ago, joel hoffman said:

Don, thanks. I agree. Is it too late to correct this blunder?

Probably. I don't think the current FAR Council even sees a problem.

5 hours ago, Don Mansfield said:

Probably. I don't think the current FAR Council even sees a problem.

Sheesh, such ignorance by whomever made the change. Unfortunately, I was ignorant of the proposed change. Shame on me.

Well, I hope that the Army Corps of Engineers has enough sense to restore the clause and implementation instructions in at least their procedures but preferably at least at Army level.

On 9/13/2025 at 5:07 PM, joel hoffman said:

Sheesh, such ignorance by whomever made the change. Unfortunately, I was ignorant of the proposed change. Shame on me.

Well, I hope that the Army Corps of Engineers has enough sense to restore the clause and implementation instructions in at least their procedures but preferably at least at Army level.

The process is not complete. Federal Register Proposed Rules have not even been posted. Those formalities will come later, but there are multiple opportunities to provide informal user feedback even before that. Don't think of this process as waterfall systems development when the policy writers are trying to use agile. I think the difference is that they will move fast now and risk a few time-limited mistakes, but then they'll correct for those before the big failures happen in the field, by listening to real-time user feedback.

Voice your concerns to the FAR Companion writers here through October 31, 2025: FAR Companion Version 1.0

And here via email to OFPP anytime: MBX.OMB.OFPPv2@OMB.eop.gov

Sometimes the individual FAR Parts have a "We welcome informal input on the revised FAR Part [x]" button on them inside the links on this page: FAR Overhaul - FAR Part Deviation Guidance | Acquisition.GOV, but it looks like FAR Parts 11 and 36 don't have one, so you just have to email OFPP and the Companion writers.

Thanks, WifWaf.

If any reader here is a current USACE employee, would you please send me a personal message?

I think that it would be important for HQUSACE to bring the issue and importance of including uniform application of the Part 52 VEQ clause and the implementation language in Part 11 to the attention of the OFPP and FAR rewrite team.

Before retirement, I was one of the USACE proponents for consistent interpretation and application of the VEQ clause, which stemmed from The “Victory Construction” Court case and later affirmation by Federal Circuit case, Foley Co. v. United States, 26 Cl. Ct. 296 (1992), aff’d, 11 F.3d 1032 (Fed. Cir. 1993) and subsequent Case Law (e.g., Thermocor, Inc. v. United States, 1996 U.S. Claims LEXIS 68 (Cl. Ct. 1996).

I don’t have contact with the current contract admin leadership at HQUSACE

We provided and taught guidance for standard contract admin procedures applicable for both underruns and overruns outside the 85-115% range of estimated quantities.

Of course, there are some exceptions to the application of the methodology in the VEQ clause. The concept is that both parties have agreed to a unit price that is part of. The bargain. But if the government, through gross error or negligence, inserts an estimated quantity that bears no resemblance to the actual scope of work, the boards have sometimes held that the contractor was not held to the Unit price for vast overrun; sometimes the Differing Site Conditions clause was applicable, etc.

On 9/3/2025 at 1:51 PM, joel hoffman said:

This bolded language, by itself would disqualify most construction projects of any complexity, as a full blown construction projects aren’t priced based upon established catalog prices or market prices.

Per the RFO, 2.101 "Market prices means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors."

Therefore, even complex construction would, in competitive cases, have prices based on market prices as defined per the RFO. I'm not commenting on whether it's a good or bad idea to do them under Part 12, just highlighting what the RFO says regarding "market prices."

On 9/3/2025 at 1:51 PM, joel hoffman said:

(Please ignore this formatting error - I can't delete this part.)

I think the economic concept of "price" is inapplicable to many government jobs undertaken when the future is uncertain and both parties expect that there are likely to be discoveries or events that will require renegotiation of the original contract dollar amounts.

The notion that there can be a "price" or "market price" or "fair and reasonable price" for construction, even just kitchen or bathroom remodeling, or for any long-term or complex services strikes me as nonsense. There can be an initially higher or lower bid or proposal dollar amount, an estimate or a budget, but not a "price" in any economically meaningful sense of the word.

Yes apparently most anything these days is then “commercial” under that definition. I agree with Vern. .

My point is what do you expect to gain by using a Part 12 contract format for anything other than simple little jobs and individual equipment installations or replacements?

The CSI (Construction Specifications Institute) Format thst the Corps of Engineers uses is a commercial standard contract format in lieu of the UCF . The standard FAR construction contract clauses are similar to those typically found in commercial and state and local government construction contracts. Why reinvent the wheel? I was a consulting engineer for local government and private commercial customers over forty years ago. Our contract formats were standardized too and similar to the CSI format.

If you think like a prime contractor with a large, noncommercial, noncompetitive proposal and a portion of it being subcontracted design-build construction, you could see the benefit now of not having to provide certified cost or pricing data by claiming the commercial service exception. Likewise why should the government have to analyze cost data on a D-B where the Designer-of-Record (DoR) is the prime contractor? Negotiate it FFP and transfer all that risk. Perhaps write a clause about DoR, which is sorely missing from FAR.

You have to admit the commercial item definition was a skewed construct designed to give out as many TINA exceptions as possible.

The Statutory coverage of design-build authorization implemented in the current FAR Part 36 requires competition , not sole source or design, then contract to build.

I agree about lack of FAR coverage for Design-build procedures and the unique roles and responsibilities of the design-builder and the government in DB. In fact the FAR Part 36 council stated during the comment period for adding the Two-Phase DB procedures to Part 36 that this was beyond the scope of the FAR implementation of the legislation. Plus, the contracting and legal members had no independent knowledge of the distinctions between roles and responsibilities of the parties for DB and DBB. They actually stated that they didn’t think any coverage of the revised R and R was necessary. I know because one of our HQUSACE Counsel was the lead on the DAR committee for Part 36 at the time.

She helped me write the coverage that we developed for Corps of Engineers DB contracts. We also adapted some earlier coverage that DB pioneers in the USACE developed in the late 1980’s.

So we developed the coverage for our Corps of Engineers DB contracts almost 30 years ago. We have taught this material Corps-wide in our Design-build course since 1997.

But under the current regulatory climate, if it’s not statutory it won’t be in FAR.

Guess what - our contract coverage of the unique roles and responsibilities of the parties mirror that of the Design-Build Institute of America for competitive DB. There are many differences between Design-Bid-Build and DB.

Anyway, an acquisition for a sole source or competitive DB project generally wouldn’t be conducted at a point where there would be much if any cost or pricing data that could be certified available, unless the sole source had to design most of the project before submitting a price proposal for construction.

I was one of the first two Government Employees to achieve DBIA (Design- Build Institute of America) Designation as a “Design-Build Professional” about 25 years ago. I was a member for about 25 years. .

16 hours ago, Vern Edwards said:

I think the economic concept of "price" is inapplicable to many government jobs undertaken when the future is uncertain and both parties expect that there are likely to be discoveries or events that will require renegotiation of the original contract dollar amounts.

The notion that there can be a "price" or "market price" or "fair and reasonable price" for construction, even just kitchen or bathroom remodeling, or for any long-term or complex services strikes me as nonsense. There can be an initially higher or lower bid or proposal dollar amount, an estimate or a budget, but not a "price" in any economically meaningful sense of the word.

Tell that to our finance and comptroller folks, along with the IG auditors. They seem think there is a magic set of books with prices already built in, as if it's a one-stop shop for all your "pricing" needs.

1 hour ago, Motorcity said:

Tell that to our finance and comptroller folks, along with the IG auditors. They seem think there is a magic set of books with prices already built in, as if it's a one-stop shop for all your "pricing" needs.

Most of the people involved in government contracting are trapped in 19th Century ways of thinking about contracting. We need is a revolution in thought before we can have a real revolution in regulation.

On 9/23/2025 at 1:43 PM, Vern Edwards said:

Most of the people involved in government contracting are trapped in 19th Century ways of thinking about contracting. We need is a revolution in thought before we can have a real revolution in regulation.

Good luck with that. I understand that the avg US adult in 2025 has an attention span of something like 47 seconds on a single unit/screen.

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