36.104 Policy
Source: FAR 36.104 on acquisition.gov
FAR 36.104 requires sustainable building practices and project labor agreements for large federal construction projects, mandating specific acquisition procedures and compliance with environmental and labor standards.
Overview
FAR 36.104 establishes the core policy for acquiring design and construction services for public buildings, facilities, or works. It mandates the use of specific acquisition procedures, sustainable building practices, and project labor agreements for certain federal construction projects. The section aims to ensure that federal construction is efficient, sustainable, and compliant with statutory requirements.
Key Rules
- Acquisition Procedures for Design and Construction
- Unless using traditional design-bid-build or another authorized method, contracting officers must use two-phase selection procedures for design-build contracts if deemed appropriate.
- Sustainable Building Requirements
- Agencies must implement high-performance sustainable practices in design, construction, renovation, and maintenance, following the Council on Environmental Quality's Guiding Principles.
- New construction/modernization projects over 25,000 sq. ft. must meet or exceed these principles; renovations must use them to the greatest extent feasible.
- Agencies must seek alternatives to renovation that reduce deferred maintenance, use best practices for historic buildings, and divert at least 50% of non-hazardous construction/demolition waste.
- Project Labor Agreements (PLAs)
- For federal construction projects estimated at $35 million or more, agencies must require a PLA unless an exception applies.
- Market research for such projects must proactively assess union and contractor interest and availability in the project area.
Responsibilities
- Contracting Officers: Select appropriate acquisition procedures, ensure sustainable building compliance, require PLAs for large projects, and conduct thorough market research.
- Contractors: Comply with sustainable design/construction requirements, participate in PLAs when required, and support waste diversion and historic building practices.
- Agencies: Oversee implementation of sustainable practices, enforce PLA requirements, and ensure compliance with all statutory and regulatory mandates.
Practical Implications
- This section ensures federal construction is procured using efficient, competitive, and sustainable methods.
- Contractors must be prepared for sustainability requirements and labor agreements on large projects.
- Non-compliance can result in ineligibility for award or contract termination, making early understanding and planning essential.
(a) Unless the traditional acquisition approach of design-bid-build established under http://uscode.house.gov/view.xhtml?req=(title:40%20chapter:11%20edition:prelim)%20OR%20(granuleid:USC-prelim-title40-chapter11)&f=treesort&num=0&edition=prelim" target="_blank">40 U.S.C. chapter 11, Selection of Architects and Engineers, or another acquisition procedure authorized by law is used, the contracting officer shall use the two-phase selection procedures authorized by https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3241&num=0&edition=prelim" target="_blank">10 U.S.C. 3241 or http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3309&num=0&edition=prelim" target="_blank">41 U.S.C.3309 when entering into a contract for the design and construction of a public building, facility, or work, if the contracting officer makes a determination that the procedures are appropriate for use (see subpart 36.3). Other acquisition procedures authorized by law include the procedures established in this part and other parts of this chapter and, for DoD, the design-build process described in http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section2862&num=0&edition=prelim" target="_blank">10 U.S.C. 2862.
(b) Agencies shall implement high-performance sustainable building design, construction, renovation, repair, commissioning, operation and maintenance, management, and deconstruction practices so as to—
(1) Ensure that—
(i) All new construction and modernization projects greater than 25,000 gross square feet are designed, constructed, and maintained to meet and, wherever practicable, exceed Federal sustainable design and operations principles for new construction and modernization projects in accordance with the Council on Environmental Quality's Guiding Principles for Sustainable Federal Buildings and Associated Instructions (Guiding Principles) (available at https://www.sustainability.gov/%E2%80%8Bpdfs/%E2%80%8Bguiding_%E2%80%8Bprinciples_%E2%80%8Bfor_%E2%80%8Bsustainable_%E2%80%8Bfederal_%E2%80%8Bbuildings.pdf" target="_blank">https://www.sustainability.gov/pdfs/guiding_principles_for_sustainable_federal_buildings.pdf); and
(ii) All renovation projects of existing Federal buildings must use, to the greatest extent technically feasible and practicable, Federal sustainable design and operations principles for existing buildings in accordance with the Guiding Principles;
(2) Identify alternatives to renovation that reduce existing assets' deferred maintenance costs;
(3) Ensure that rehabilitation of Federally-owned historic buildings utilizes best practices and technologies in retrofitting to promote long-term viability of the buildings; and
(4) Ensure pollution prevention and eliminate waste by diverting at least 50 percent of non-hazardous construction and demolition materials and debris.
(c)
(1) Agencies shall require the use of a project labor agreement for Federal construction projects with a total estimated construction cost at or above $35 million, unless an exception applies (see subpart 22.5).
(2) Contracting officers conducting market research for Federal construction contracts, valued at or above the threshold in paragraph (c)(1) of this section, shall ensure that the procedures at 10.002(b)(1) involve a current and proactive examination of the market conditions in the project area to determine national, regional, and local entity interest in participating on a project that requires a project labor agreement, and to understand the availability of unions, and unionized and non-unionized contractors. Contracting officers may coordinate with agency labor advisors, as appropriate.