Chapter 8. HHS Facility Design and Construction

Table of Contents

8.1 Project Cost Monitoring and Cost Control

8.1.1 Policy

The purpose of this section is to provide guidance to the OPDIVS for monitoring project cost on federally owned real property assets. When construction funding is submitted to the Office of Management and Budget (OMB) as part of the Department's budget, the maximum project budget is fixed and linked to project scope.

Pre-Project Planning - The OPDIV shall ensure that the scope and cost of the project is linked to the and the 5.2 Facility Project Approval Agreements. Pre-Project Planning must be completed before a construction budget submission when submitting the construction budget to OMB and Congress. Once the construction budget is submitted to OMB and Congress, the OPDIV/HHS is committed to that budget and scope. Adequate Pre-Project-Planning must be done to help ensure that the project can be delivered at full scope within the submitted budget.
Programmatic Requirements - Once submitted to HHS and the project is being designed by an A/E firm, programmatic and other changes (i.e., growth) must be held to an absolute minimum.

8.1.2 Administrative Requirements

Procedures

The OPDIVs shall certify that the project is within scope, schedule and budget based on the approved FPAA at each A/E's submittal. The A/E contract "Design within Funding" clause must be consistent with the approved FPAA. At a minimum, the A/E should submit a broad order of magnitude estimate (square foot/meter cost) at the schematic level, a system's estimate at design development level, and detailed quantity takeoff estimate at the contract document level.

8.1.3 Guidance and Information

A/E - The A/E shall design the project within the budget and shall provide a construction cost estimate at each scheduled design submission. The A/E shall provide a narrative description of the methodology used in the development of the estimate. If estimating software is used to produce the estimate, provide summary details of the software.
Cost Consultant - OPDIVs are encouraged to utilize a highly qualified cost engineer or estimator (in-house staff or through contract) to assist the Project Manager and Contracting Officer Representative in monitoring A/E cost estimates for major capital projects. The Cost Consultant should be fair, impartial, objective, and effective in evaluating the cost reasonableness of the A/E's estimate.
Government Estimate - The final estimate will be considered the "Government Estimate" after it has been reviewed and accepted by the Contracting Officer. This estimate must include material, labor, and equipment costs and must not exceed the construction budget.
Cost Estimate Format - It is recommended that detailed cost estimates be broken down in accordance with the OPDIV's construction-estimating format. The following indirect costs shall be shown as separate line items in detailed estimates:
1. Sub-Contractor overhead and profit
2. Prime Contractor markup on subs
3. Prime Contractor overhead and profit
4. Sales tax, State tax, Tribal fees (or tax), bonds and insurance
5. Escalation cost per year

8.1.4 Reporting

Pre-Project-Planning activities prior to budget submissions, help reduce scope changes and cost overruns. However, due to the nature and complexity of construction projects, unexpected mission or unforeseen changes do occur that could drive changes in the scope or budget of a project.

OPDIVs are encouraged to develop generic in lieu of custom designs to provide flexibility and adaptability to deal with mission changes. When the scope or budget of a project must change, the OPDIV will immediately report these changes to PSC/RLO/RPMS and submit a revised FPAA in accordance with 5.2 Facility Project Approval Agreements (also see Changes for FPAA change approval thresholds).

8.2 Project Design Review

8.2.1 Policy

This policy applies to federally owned real property assets provide general guidance to the OPDIVS for reviewing projects during the design phase. The OPDIV has the overall responsibility to provide Government oversight for the design of an HHS facility. The OPDIV review and comment on the Architect/Engineers (A/E) design submittal is vital to the success of the project. The A/E is contractually responsible to design the project within the specified scope, budget, and schedule. This is not only a Government requirement, but it is a common practice within the industry. The OPDIV shall ensure that the A/E fulfills their contractual responsibility to deliver a design of the approved HHS facility within Scope, Budget, and Schedule.

8.2.2 Administrative Requirements

Roles and Responsibilities
1. Architect/Engineer - The A/E shall submit completed progress designs in accordance with their contract to the Government for review and comment. The A/E shall not proceed to the next phase of project design until written acceptance of the current submittal is received from the approval authority.
2. Project Manager - The Project Manager (PM) may serve as the Contracting Officer Representative (COR). The PM leads, directs and controls the Government's activities as they relate to the design review of an HHS facility. The PM is the Point of contact for the Government, the PM serves as the Government's authorized representative with respect to communicating and distributing comments to the A/E.The PM holds and chairs design review meetings with OPDIV program and technical staff to evaluate design review comments. The PM determines if the review comments are within the scope of the A/E's contract. If comments are not within the scope, the PM will reject the comments and does not forward them to the A/E.
3. OPDIV Technical Review Staff - The OPDIVS are encouraged to assemble an integrated project team (IPT), which comprises of the COR, select senior design discipline experts who have experience in preparing contract documents to assist the PM in reviewing and evaluating the A/E's work. The technical review staff should be very familiar with the A/E scope and contract and should be allowed to interact with the A/E when it is appropriate. Comments should be recommendations and suggestions to ensure the success of the project. Comments that are directives should be avoided unless items within the design submittal are not in accordance with the scope of contract.
4. OPDIV Program Staff - Care and deference must be given to OPDIV Program staff as the end-users, customers, and clients. However, they are not the A/E's customer or client. The A/E's client is the Contracting Officer (CO) or the COR acting as the CO's designated representative.OPDIV program staffs are generally not familiar with the A/E contract and their comments may be programmatic without consideration of contractual obligations. Still, the OPDIV program staff are valuable stakeholders whose input and support contribute significantly to the project's success. Care must be taken to ensure the OPDIV program staff's comments are within contract scope. OPDIVs are encouraged to establish internal procedures to ensure that the PM is the communications conduit between the program staff and the A/E.
Procedures

The OPDIV determines the number of design submittals based on size and complexity of the project. The Project Manager (PM) holds and chairs design review meetings with technical and program review staffs at each specified design submittal stage. The A/E and the PM shall certify that the Project is within the Scope, Schedule, and Budget per the approved FPPA at each submittal. If a submittal is found to be deficient and does not meet contractual obligations, the Government must reject the submittal

8.3 Design Guidelines

8.3.1 Policy

HHS buildings shall be designed and constructed to be safe, healthy, functional, pleasant, and to provide a safe, healthy, and functional working environment to meet the OPDIV's mission.

The purpose of this section is to provide general guidance to assist OPDIV's in developing design criteria for projects unique to their organization. Many OPDIV's have developed design criteria for A/Es using in-house resources in collaboration with HHS, federal, state, and local entities, as well as the private sector. This helps to promote excellence in the planning, programming, design, and construction of HHS facilities. OPDIVs are encouraged to continually review and update design criteria to guide A/E's and OPDIV staff in preparing contract (construction) documents.

8.3.2 Administrative Requirements

Procedures

Design criteria reflect the collective corporate knowledge and wisdom of the OPDIV's design professionals based on history and experience that is benchmarked against best practices within the industry. OPDIV's are encouraged to use readily available industry design criteria for buildings that are common in the practice of architecture and engineering. Highly specialized buildings may, to an extent, require development of program or project specific design criteria, and include features and elements that are generic in nature. Use of generic design criteria avoids customizing spaces, functions, and operations to help maximize use of funds appropriated for facilities.

8.3.3 Guidance and Information

The overarching design guidelines described below are intended to establish general performance objectives for HHS buildings and facilities. The OPDIV Project Manager should ensure that project specific objectives are identified in the Statement of Work (SOW) developed to support the design effort. The A/E is responsible for determining how to achieve specified objectives.

Environmental and Functional Needs

HHS buildings shall provide a comfortable working environment to support optimal performance taking the following factors into consideration.
1. Arrangement of Space. Space relationships within buildings shall be planned to optimize the functions being performed by the occupant. Interaction areas should be provided within the building to promote collaboration between scientists / occupants.
2. Access for Persons with Disabilities. Refer to the Sections 8.10 Accessibility Requirements for Persons with Disabilities "Accessibility Requirements for Persons with Disabilities" Administrative Requirements and Guidance and Information, respectively, in this Chapter.
3. Illumination. Natural and artificial illumination shall be sufficient to meet requirements of the tasks performed by the occupants.
4. Thermal Environment. Spaces must include proper climatic conditions to provide a safe and healthy environment for work to be being performed. Provision of flexibility and suitable control is necessary.
5. Acoustical Environment. New buildings and alterations shall be planned and designed to limit noise to tolerable levels. An adequate level of privacy shall be provided based on the nature of the tasks performed in the space.
6. Maintenance and Operation. Designs shall be based on user needs and maintenance capabilities and shall satisfy the functional requirements for efficient operation of the facility. Materials and products shall be durable, easily maintained, and appropriate for the intended use.
7. Harmony with Environment. Special attention should be paid to the arrangement of streets and public space adjacent to buildings. Designs should include well-landscaped, inviting, and people-oriented space within budgetary constraints and site limitations.
8. Regional Character. Buildings should reflect the architectural character of the locale. Local building ordinances and zoning practices should generally be followed. Consistent with applicable Federal procurement requirements, the use of materials and products indigenous to the locale of the project should be given preference.
Safety, Health, and Security

HHS buildings shall provide an environment that is safe and healthful for occupants, and that offers them maximum protection during emergencies or disasters. HHS buildings shall comply and/or exceed international, national, local codes to the extent possible in supporting the mission.
1. Structural Adequacy. Design of buildings shall be adequate for the functions to be performed and the seismic, wind, snow, and other loads imposed by building equipment, occupants, and their activities.
2. Protection against disaster. Design shall consider exposure to fire, earthquake, or other natural disaster, and shall provide required egress and refuge for all people, including the disabled, in an emergency. For additional guidance on Climate Change see Section 10.2 Climate Adaptation and Resilience Planning.
3. Resilience against Climate Change. Design should address exposure to climate change vulnerabilities: extreme heat, extreme weather, drought, flooding, and wildfire. See Section 10.2 Climate Adaptation and Resilience Planning.
4. Security. See Section 8.5 Facility Security Design Considerations.
5. Accident Prevention Design. Design shall be the result of safety analyses and shall address unsafe conditions that cause injury, illness, or property damage.
6. Health Hazards. Materials and products with known or suspected properties that are hazardous to the health of occupants and installers shall be avoided. Only materials that are lead and asbestos free shall be used in HHS buildings. This includes materials such as paint, adhesives, sealers, sealants, floor tiles, etc.
7. Repair, Renovation, and Alterations. Design shall be accomplished to reduce or eliminate hazardous exposure through astute selection and use of materials and methods. Prior to any renovation or demolition project, the design should identify any existing building hazardous to include asbestos or lead, etc. (See Sub-Section 10.1.3.2 Environment). If lead or asbestos containing materials is present, the contractor shall be required to submit relevant management and abatement plans as part of their proposal for the OPDIV's approval and send notification letters to the State regarding asbestos removal prior to initiating work.
Economy

HHS buildings shall be designed at the most reasonable cost in terms of combined initial and long-term expenditures, without compromising other project requirements.
1. Site Adaptation. In many, if not most instances, a site has already been selected before design begins; however, OPDIV design professionals should, where possible, have a part in the selection. The design of the building shall be sited economically and efficiently.
2. Efficient Utilization. The ratio of usable to gross area should be as high as possible (without wasted space) consistent with program objectives as stated in the POR. The design shall comply with the HHS Space Utilization Rate (U/R) Guidelines per Section 5.8 Utilization Targets for Administrative Space.
3. Economical Materials. Materials, products, and systems of proven dependability shall be used in the design or alteration of buildings. Materials shall be as economical as possible, in terms of combined initial and long-term cost and consistent with program objectives. To the extent possible, standard commercially available products shall be used.
4. Carbon Free Electricity and Energy Efficiency. EO 14057 set out and reinforces long-standing requirements for carbon free electricity and energy conservation in Federal facilities. It is HHS Policy in response to these mandates to foster cost effective energy management practices to ensure net-zero operations and efficient use of energy, while maximizing the ability of the OPDIV to accomplish its mission and maintaining the health and safety of HHS employees and visitors.
5. Life Cycle Cost (LCC) Analysis. LCC shall be performed on all projects as required by OMB Circular A-11 for capital assets. The analysis shall consider the overall estimated costs of each program alternative over the life of. program. In assessing LCC the assumed life of a new facility shall be 50 years. In addition, during design value engineering shall be done to determine the most cost effective, long-term solutions for the selected program alternative. See Section 8.7 Value Engineering Agreements. Note that LCC/ Economic Analysis, such as USACE ECONPACK, is required for FPAA approval.
6. Maintenance, Operation, Repair, and Replacement Costs. Buildings shall be designed, and materials selected, to minimize the cost of maintenance and repair.
7. Foster Maximum Competition. Buildings shall be designed and building materials, components, and systems incorporated into the design to foster maximum competition among suppliers and contractors.
8. Project Administration. Projects shall be planned and scheduled to ensure effective and efficient design.
Compliance with Codes and Standards

In accordance with 40 U.S.C. 3312 each HHS building shall be constructed or altered, to the maximum extent feasible, in compliance with one of the nationally recognized model building codes and with other nationally recognized codes including mechanical and electrical codes, fire and life safety codes, and plumbing codes. Due consideration shall be given to all State and local zoning laws as if the project were not being constructed or altered by a Federal agency. The Government and its contractors shall not be liable for the cost of issuing permits or performing inspections. The Contracting Officer shall insert a clause in every design and construction contract solicitation notifying prospective contractors of the statutory provisions of 40 U.S.C. 3312 (f) and (g).

8.4 Sustainable Design

8.4.1 Policy

Executive Order 14057: Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability establishes Government-wide goals to achieve net-zero emissions by 2050. EO 14057 directs HHS to the following to achieve net-zero emission buildings:

Pursue building electrification strategies in conjunction with carbon pollution-free energy use, deep-energy retrofits, whole building commissioning, energy and water conservation measures, and space reduction and consolidation;
Design new construction and modernization projects greater than 25,000 gross square feet to be net-zero emissions by 2030;
Implement Council on Environmental Quality's Guiding Principles for Sustainable Federal Buildings in building design, construction, and operation of all new Federal buildings and renovated existing buildings;
Use performance contracting in accordance with section 1002 of the Energy Act of 2020 (Public Law 116-133, division Z), to improve the efficiency and resilience of Federal facilities, deploy clean and innovative technologies, and reduce greenhouse gas emissions from building operations.
Transitioning to a Zero-emission Fleet through optimizing fleet size and composition, deploying zero-emission vehicle refueling infrastructure, and maximizing acquisition and deployment of zero-emission light

The Guiding Principles for Sustainable Federal Buildings Checklist must be submitted with a Facility Project Approval Agreement (FPAA) as indicated in 5 Project Planning. HHS Facility Project Approval Agreement assists in recording building sustainable features and identifies opportunities for improving sustainable performance.

Sustainable design features shall also be considered for facilities leased and operated by HHS.

8.4.2 Administrative Requirements

Procedures

Several executive orders and MOU's affecting facilities have been issued to promote and mandate the greening of the Federal Government. The design of projects shall provide for the protection of the environment through energy efficiency, recycling, pollution prevention, and affirmative procurement consistent with:
1. Pursuant Energy Act of 2020 is focused on advancing clean energy and reducing greenhouse gas emissions.
  1. Energy and water conservation measures that are life-cycle cost effective must be installed in owned Federal buildings, beginning no later than October 1, 2022.
  2. Evaluate federally owned and operated data centers once every four years by an energy practitioner that has been certified by DOE and OMB program.
2. Pursuant to Executive Order (EO) 14057, Catalyzing Clean Energy Industries and Jobs through Federal Sustainability, products, materials, and systems shall be selected with a view toward reducing greenhouse gas emissions and achieving net-zero emission buildings.
  1. For new construction and modernization projects greater than 25,000 square feet and entering the planning phase after January 31, 2022, are designed, constructed, and maintained to meet net zero emissions, and wherever practicable exceed Federal sustainable design and operation principles for new construction and modernization projects in accordance with CEQ's Guiding Principles for Sustainable Federal Buildings. 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. HHS is committed to recycling and buying recycled content and environmentally preferable products. OPDIVS are encouraged to reduce construction and demolition waste by reducing debris, reusing materials and recycling. The design shall maximize the use of construction materials with lower embodied emissions and environmentally preferable products and services to the extent feasible, consistent with price, performance, availability, and safety considerations.
  3. Provide recycling, collection (hazardous materials e.g., batteries, mercury-containing lamps, etc.) and storage space. Develop/Implement a construction and demolition waste management plan to identify materials (structural/nonstructural) targeted for diversion; specify diversion strategies planned e.g., materials to be separated or commingled and where to be taken and how it will be processed; provide a final report detailing all major waste streams generated pursuant to EO 14057.
  4. Per FAR 23.203 and EO 14057, HHS shall select, where life cycle cost effective, ENERGY STAR® and other energy efficient products when specifying energy - using products. The design should specify products that are in the upper 25 percent of energy efficiency as designated by the Federal Energy Management Program (FEMP). The design should meet ENERGY STAR® building criteria for energy performance and indoor environmental quality in eligible HHS facilities.
    1. Per FAR 23.204, an exemption to procuring ENERGY STAR® or FEMP-designated products is allowed if the head of the HHS Division determines in writing that either functional requirements cannot be met or is not cost effective over product life.
  5. Explore life-cycle cost-effective system alternatives and make selections based on long-term durability, energy efficiency, flexibility, accessibility, ease of operation and maintenance, for Heating, Ventilation, and Air Conditioning (HVAC), Plumbing, Fire Protection systems, steam systems, boilers, air compressor systems, industrial processes, fuel switching systems, and cogeneration.
  6. Utilize 100 percent carbon-free electricity on a net annual basis, which includes 50 percent 24/7 carbon pollution free electricity through incorporation of the use of renewable energy and technologies in the design of HHS buildings and facilities when life cycle cost effective. Renewable energy includes photovoltaic, solar thermal, biomass (wood, wood waste, refuse and agricultural waste), wind, geothermal, and low- impact hydropower technologies. Renewable energy sources can be either on-site or off-site.
    1. On-site renewable energy production involves a system that generates renewable energy, such as a solar photovoltaic panel.
    2. Off-site renewable energy is purchased at a premium price per kilowatt-hour from a utility or a provider of renewable energy certificates (RECs). The types of off-site renewable energy are wind, hydro, biofuel, wave power and tidal power.
  7. Eliminate or mitigate to the maximum extent possible the direct, onsite fossil fuel combustion from facilities through efficient electrification of equipment, or where elimination not possible implement all practicable electrification.
  8. Incorporate Best Management Practices (BMP) for water conservation in the design of the project. Support water management and identify opportunities for additional water saving by tracking water consumption. Projects to commit to sharing their potable water data and collected annually
  9. Incorporate as a design consideration the installation of electric vehicle charging infrastructure for HHS projects at owned facilities where there is a construction/renovation of parking facilities.

8.4.3 Guidance and Information

Goals

HHS facilities, both new and existing, should serve as models for a healthy workplace with minimal environmental impacts. To achieve this goal, OPDIVS are encouraged to utilize both innovative, state-of- the-art technologies and a holistic approach to design, construction, renovation, and use. Important considerations in the design, construction, and use of HHS owned and leased facilities include the following:
1. Site planning that utilizes resources naturally occurring on the site such as solar and wind energy, natural shading, native plant materials, topography, and drainage. Assess the site conditions to evaluate suitable options and to inform related decisions about site planning to include topography, soil type, climate, etc. The project team can orient the building to take advantage of the solar access or decide what type of native plants will be suited to the site conditions.
2. Location and programs to optimize use of existing infrastructure and transportation options. A project should reduce the consequences of transportation by ensuring access to alternative modes of transportation to reduce single occupancy vehicle use; encourage walking and bicycling; and actively promoting alternative fuel vehicles by providing fueling facilities or charging stations for green vehicles.
3. Use of recycled content and environmentally preferable construction materials and furnishings, consistent with HHS and Federal Acquisition Regulations. The conservation of materials starts by eliminating the need for materials during the planning and design phase. Reusing existing materials, and salvaged materials especially existing buildings results in material savings. According to EPA the best way to eliminate waste is through source reduction.
4. Minimize energy and materials waste throughout the building's life cycle from design through remediation. Demonstrate reduce environmental effects by demonstrating a reduction in materials use through the life cycle assessment. Reuse or salvage building materials from off-site or on-site location. For new construction conduct a life cycle assessment of the project structure and enclosure.
5. Design of the building envelope for energy efficiency. The need to reduce energy demand and to look for ways to improve the energy efficiency for HVAC systems, lighting, and appliances.
6. Use of materials and design strategies to achieve optimal indoor environmental quality (such as lighting quality and air quality) to maximize health and productivity. Establish a policy and implement to protect indoor air quality during construction and renovation to promote the well-being of construction workers and building occupants. There should be proper site protection during construction to reduce exposure to dust, toxic substance, and other contaminants.
7. Operation systems and practices that support an integrated waste management system. Green building projects should work on reducing the amount of waste that goes in the landfill. There should be space dedicated to collection and storage of recyclables for mixed paper, cardboard, glass, plastics, and metals. There should also be a program in place for collecting, storing, and disposing of batteries, mercury bulbs and electronic waste.
8. Recycling of building materials at demolition. To identify strategies for reducing the generated construction waste. To eliminate project, waste through source reduction which is by planning the materials to be produced at exact size through prefabrication, or construction so there is no waste generated on-site.
9. Management of water as a limited resource in site design, building construction and building operations. To install permanent water meters that can measure the total potable water use for the building and associated grounds. Metered data should be collected in monthly and annual summaries.
10. Utilization of solar and other renewable technologies, where appropriate. Renewable Energy sources can be either on-site or off-site. On-site renewable energy production involves a system that generates renewable energy such as photovoltaic panels and off-site renewable energy is called green power and is purchased directly from the grid or a provider of renewable energy certificates (RECs).
11. Evaluate trade-offs. Evaluation of trade-offs will be an important component of the design of Green Buildings. Where the goals of a Green Building are contradictory (e.g., increased ventilation vs. increased energy efficiency), the trade-offs will have to be evaluated in a holistic framework to achieve long-term benefits for the environment.
High-Performance Building Elements

OPDIVS are encouraged to design construct and operate high performance facilities by establishing performance goals at the programming phase. Whether building a new laboratory or renovating an existing structure, there are nine key elements to creating a high-performance building:
1. Set high performance goals early and include them in the specifications.
2. Minimize the impact of the site.
3. Provide high performance design.
4. Communicate goals to designers.
5. Pursue integrated design.
6. Communicate goals to construction contractors.
7. Monitor construction.
8. Verify goals. Significant and measurable environmental benefit
9. Train maintenance and administrative staff.
10. For a high-performance facility, project team collaboration and integration of design choices should begin no later than the programming phase. Use of the Guiding Principles for Sustainable Federal Buildings should be employed.

8.4.4 Reporting

OPDIVs should contact their designated High-Performance Sustainable Building (HPSB) Manager before procuring and implementing sustainable designs to obtain awareness of the latest sustainable goals. Report all achievements towards sustainable design goals as your designated HPSB Manager requires. OPDIVs can locate their HPSB Manager's contact information on the Go Green Get Healthy Contacts website (Intranet Link).

Per EO 14057, HHS Divisions report their Energy Savings Performance Contacts through the Energy Independence Security Act of 2007 Section 432 (EISA 432) through the EISA 432 Compliance Tracking System.

8.5 Facility Security Design Considerations

8.5.1 Policy

By Executive Order 12977, dated October 19, 1995, established the Interagency Security Committee (ISC) responsible for developing policies and guidelines to standardize security at federal facilities. Accordingly, the ISC publication, "The Risk Management Process (RMP) for Federal Facilities, An ISC Committee Standard" and associated appendices provide governing policies, guidelines, and a framework for organizations to properly implement security programs driven by an iterative risk assessment process. ISC Standards apply at all government-owned, leased, or managed facilities; or those to be constructed, modernized, or purchased. EO 12977 was amended by EO 13286, dated on February 28, 2003.

The HHS Physical Security Policy (PSP), latest publication, is the primary governing HHS policy document for establishment of an ISC compliant physical security program. Accordingly, the HHS PSP outlines and guides security applications in facility centric programs and project management. Consistent with the HHS PSP, all HHS facility programs/projects shall be planned, designed, and/or constructed (includes modernization) in accordance with the current issuance of the ISC RMP Standard.

8.5.2 Administrative Requirements

Procedures
1. Consult with PSEMS, or the designated Security Organization during the initial planning stages of a facility project and throughout the process. PSEMS/the Security Organization shall be part of all project review boards and/or committees.
2. Consult with the local Facility Security Committee (FSC) (for multi-tenant facilities – HHS, Federal Bureau of Investigation (FBI), Social Security administration (SSA) etc.) and/or Designated Official (DO) (for single tenant facilities – HHS only). The FSC/DO are the approving authorities for any security related decisions, including implementation of countermeasures (CM) and security risk acceptance that may be associated with a project.
3. The FSC, DO, PSEMS, and/or designated Security Organization will review the most current Facility Security Assessment (FSA)/Facility Security Level (FSL) to determine what if any security impacts, or risks are associated with a given program or project.
  1. An FSA and FSL must be current within 3 years for FSL Level III, IV, and V facilities; and within 5 years for FSL Level I and II facilities. If a current FSA/FSL documentation is unavailable, then contact PSEMS, or the Designated Security Organization for assistance. A new FSA/FSL determination process will be needed in these instances. Even when there is existing FSA/FSL documentation, it still needs to be reviewed and/or revised based upon the proposed changes to mission, tenant, locations, or other similar factors.
  2. The FSL considers five factors: mission criticality (importance of the site to HHS mission), symbolism (site target attractiveness to a potential adversary), facility population (changes in occupancy), facility size (changes in government rentable square footage), and threat to tenant agencies (local crime statistics and adversarial tenant relationship with the public). Additionally, considerations are given to intangible factors such as short duration of occupancy, reduced asset value/reduced consequence, and costs associated with reconstitution of the facility when determining what if any security risks are acceptable.
  3. The facility tenants have the decision authority to approve the FSA/FSL, decide implementation of security CM, and or accept security risks associated with a facility project. Specifically, these decisions are made by "designated tenants" through the formal FSC voting process (in multi-tenant facilities), or by the DO, or designated representative in a single tenant facility (see HHS PSP section VIII).
  4. The FSA/FSL includes risk assessment documentation, which annotates the necessary level of protection and associated CMs that must be implemented based on the outputs of the FSL determination and risk assessment.
4. If the Necessary Levels of Protection (NLOP) cannot be achieved due to time, cost (cost prohibitive or non-cost effective), or other constraints or limitation, the FSC/DO must determine the Highest Achievable Level of Protection. This mitigation or risk acceptance process can only be approved by the tenants (FSC/DO), in consultation with PSEMS, and/or the designated Security Organization.
5. For new construction, PSEMS, or the designated Security Organization determines the preliminary FSL, conducts an initial risk assessment, and provides CMs recommendations to the FSC/DO and/or project team for approval. The FSC/Project Team approves the CMs recommendation.
6. For existing facilities, a periodic risk assessment is conducted by PSEMS, or the designated Security Organization and CMs recommendations are approved by the FSC/DO. An implementation plan is developed by the FSC/DO in consultation with PSEMS, or the Security Organization, and when the NLOP/CM cannot be achieved, an interim and/or long-term plan to achieve the NLOP is established and documented. This begins the process of programing future project funds and/or incorporating security upgrades to future modernizations/renovations.
7. During modernizations, or renovations, previously "not achievable" CM may now be achievable and need to be considered. The ISC RMP is applied in the planning and prospectus development phase. Any addition, or extension must comply with ISC RMP Standard. The FSC/DO in consultation with PSEMS, or the designated Security Organization determines if the CM are to be implemented, or risk accepted. If an addition to an existing building is 50% of the structure on a GSF basis, then the entire RMP/FSL/FSA will be re-examined.

8.6 Partnering

8.6.1 Policy

The purpose of this section is to encourage "Partnering" as a best practice on HHS construction projects for federally owned real property assets. Each OPDIV shall consider developing and implementing a partnering procedure for all new and renovated facilities that meet or exceed the Capital Investment Review Board (CIRB) thresholds identified in Section 3.3.2.1 Approval Thresholds.

Partnering is designed to create an agreement between the Government and Contractor to work cooperatively as a team, to identify and resolve problems and to achieve mutually beneficial performance and result goals. The expected benefits are achievement of contract goals, lower contract administrative costs, improved problem solving, and fewer conflicts. Participants in the Partnering process must include the Contracting Officer, Contracting Officer Representative, designer (Architect/Engineer), and contractor; but may also include end user(s), upper management, consultants, and major subcontractors.

Partnering Agreement(s) must be consistent with all applicable FAR requirements and the controlling Government contract. Partnership agreement(s) do not waive the Government's or the Contractor's responsibilities under "contract disputes" provision and process required by FAR 33.2 and the HSAR, Subpart 333.2.

8.6.2 Administrative Requirements

Procedures
1. Partnering
  
  The Partnering process shall be clearly defined in the solicitation for offers that advertise for the procurement of the Project. This process is based upon the expectation of a mutual commitment between Government and industry to work cooperatively as a team to identify and resolve problems and to facilitate successful contract performance. The process is designed to be mutually beneficial, providing the OPDIV with quality services, on time and at a reasonable price, while allowing the contractor to operate efficiently and earn a fair profit.
  
  Partnering requires the parties to formulate actions that promote common goals and objectives. The relationship is based upon open and continuous communication, mutual trust and respect, and the replacement of the "us versus them" mentality with a "win-win" philosophy. Partnering also promotes synergy, creative thinking, pride in performance, and a shared vision for success.
  
  Partnering agreements represent a willingness and a commitment to resolve differences in a structured and constructive manner.
  
  Although formal Partnering is most effective for large construction procurements, the same philosophy and process can be applied successfully on a smaller scale by the OPDIVs.
2. The Four Phases of Partnering
  
  The four phases of partnering are:
  1. Communicating with Industry. The solicitation will contain a clause informing offerors of the Government's requirement to use partnering on the contract.
  2. Making the Commitment to Partner. This requires willingness and support of senior management to empower participants with the required responsibility and authority to make binding decisions. OPDIV Senior Managers should lead the partnering process by reinforcing the team approach to contract administration, breaking down barriers, actively participating in the resolution of issues escalated to their level, and championing the process. There is an initial investment of participant time to make the process work, as well as some cost in conducting the initial workshop.
  3. Conducting the Workshop and Developing the Partnering Agreement. The purpose of the workshop is to build a Contractor/Government team and create momentum that will drive the partners toward successful accomplishment of mutual goals and objectives throughout the contract term. Recommended elements of the initial Partnering Workshop include:
    1. Introduce the partnering concept – share experiences, concerns, etc.
    2. Build relationships - Team building exercise.
    3. Set team Goals - What are we jointly trying to achieve through a partnering agreement?
    4. Establish accountability - How will we accomplish this?
    5. Establish an evaluation process - What are the issues involved in helping us to realize our goals? What metrics can we track to tell us if the contract is effective, and our goals are being met?
    6. Establish the process to resolve conflicts - How will we resolve disputes to avoid hurting each other?
    7. What are the specific kinds of disputes that we can think of now?
    8. Develop a conflict escalation procedure.
    9. Put it in writing - Develop the Partnering Agreement, signed by all key contractors and contract administration personnel.
      
      All future working meetings are conducted and guided by the principles and procedures established during the workshop and incorporated in the drafting of the initial Partnering Agreement.
  4. Making it Happen. After development of the Partnering Agreement, it is critical that all actions taken are consistent with the Partnering Agreement objectives. At the periodic progress meetings, checks can be made to gauge how everyone feels about the value of the partnering agreement. If necessary, a follow up workshop may be held to refocus the team on the process and educate new stakeholders.

8.6.3 Guidance and Information

OPDIVS are encouraged to consult the Construction Industry Institute best practice on partnering for developing their own partnering model: SP17-1 In Search of Partnering Excellence RS 102-1 Model for Partnering and IR102-2 Partnering Toolkit.

8.7 Value Engineering Agreements

8.7.1 Policy

This section describes HHS guidance and information for value engineering (VE) in Architectural/Engineering (A/E) and construction contracts for federally owned HHS real property assets. VE is recommended for projects where the construction cost is $1 million or greater. (See OMB circular A-131 along with amended reporting requirements in December 2013.) HHS recommends an independent VE analysis by specialized consultant or Government personnel for projects with a total project cost of $10 million or more.

Each OPDIV facilities office that performs technical management of A/E and construction contracts is recommended to designate a value engineering coordinator (VEC) to coordinate the OPDIV's VE activities. The VEC with formal Society of American Value Engineering (SAVE) approved training in value engineering is recommended. It is recommended the Contracting Officer, in consultation with the VEC, to determine which contracts are subject to VE and for accepting or rejecting VE proposals.

8.7.2 Guidance and Information

Value Engineering in Design Contracts
1. General – Federal Acquisition Regulations (FAR) Part 48 requires the Contracting Officer to include a VE clause in solicitations and contracts for A/E services whenever the Government requires and pays for a specific VE effort in A/E contracts.
2. Projects Requiring HHS Capital Investment Review Board Approval per 3.3.2.1 Approval Thresholds – OPDIVs may obtain independent VE analysis from specialized consultant or Government personnel. The specialized consultant must be an independent party from the project A/E.
3. Projects with a construction cost of $1 million or up to the Division Approval per 3.3.2.1 Approval Thresholds – OPDIVs may accomplish value engineering through the A/E contractor, a specialized independent consultant, or Government personnel at the discretion of the VEC and the Contracting Officer.
4. Sustainable Design Features – Integration of sustainable design features into construction projects is mandated by law, regulation, executive order, and policy. Specific goals are established in planning and early design phases of every project. Many sustainability goals have benefits in that they reduce external environmental impacts without providing direct benefit to the project in terms of cost or performance. When sustainable design features are being evaluated during the VE process, it is recommended OPDIVs take into consideration these benefits in addition to all costs including but not limited to direct/indirect, design and maintenance costs, etc., overall project budget limitations, durability and performance considerations and their integration throughout the overall design.
5. Regardless of who performs VE, the value engineering analysis is recommended be done at the end of schematic design phase or no later than the midpoint of the design development phase. In addition, it is recommended the VE team include a certified value specialist team leader and A/E professionals with VE training and experience.
  1. When projects meet the thresholds for VE, it is recommended the VEC proceed with the following:
    1. In conjunction with the Contracting Officer, determine the scope of VE analysis to be undertaken, considering the size and type of the project, and document to the contracting file.
    2. If being accomplished by Government personnel, it is recommended to the appoint a VE team that consist of members with expertise in the areas or disciplines to be reviewed for the project.
    3. Upon completion of analysis, it is recommended to file a VE report.
    4. It is recommended to maintain copies of VE proposals and supporting documentation in the contracting file.
  2. The following information is recommended to be included in each Value Engineering Proposal (VEP) whether done by the A/E, specialized consultant, or Government personnel:
    1. Description and Comparison – A description of the difference between the existing and proposed design, the comparative advantages and disadvantages of each, a justification when an item's function is being altered, the effect of the change on system or facility performance, and any pertinent objective test data. This may include but is not limited to sketches, calculations, models, etc.
    2. Specifications – A list and analysis of design criteria or specifications that must be changed if the VEP is accepted.
    3. Project Cost Impact – A separate detailed estimate of the impact on project cost of each VEP, if accepted and implemented by the Government.
    4. Implementation Costs – A description and estimate of costs the Government may incur in implementing the VEP, such as design change cost and test and evaluation cost.
    5. Life Cycle Costs – A prediction of any effects the proposed changes may have on life cycle cost. Cost comparisons shall assume a 50-year building life.
    6. Benefit Analysis – A description of the impact of each VEP on the Department's ability to perform its mission.
    7. Sustainable Design Impact – A description of the impact on sustainable design features, established sustainability goals, or third-party certification.
    8. Schedule Impact – The effect the VEP will have on design or construction schedules.
Value Engineering in Construction Contracts
1. General – FAR Part 48 requires the contracting officer to include a VE clause in construction solicitations and contracts when the contract amount is estimated to be above the simplified acquisition threshold ($250,000), unless an incentive contract is contemplated, or the agency has granted an exemption. The Contracting Officer may include a VE clause in construction contracts of lesser value if the Contracting Officer sees the potential for significant savings.
2. Sustainable Design Features – Value Engineering Change Proposals (VECPs) that negatively impact sustainable design features needed to comply with EISA 2007 and EO 14057 shall not be permitted unless they incorporate alternate provisions that achieve established sustainability goals and third-party certifications.
  1. Sustainability goals may have benefits in that they reduce external environmental impacts without providing direct benefit to the project in terms of cost or performance.
  2. At a minimum each VECP submission from the contractor shall include the documentation required under FAR Part 48.
  3. The OPDIV will review and objectively evaluate each VECP and document the contract file with the rationale for acceptance or rejection of the VECP. If a VECP is accepted, the Government and the contractor shall share the savings, as prescribed in FAR Part 48.
  4. Each OPDIV is responsible for establishing guidelines for processing VECPs consistent with FAR Part 48 requirements.
Payment for VE Services

The payment for VE services performed by non-governmental employees is can be used an authorized expense of project design funds. These services must be separately priced in the A/E contract and are not included in the six percent fee limitation for the A/E design services. VE services will be quantified in terms of "level of effort" rather than as a deliverable.
References

Below is a list of the primary Federal regulations governing value engineering for HHS projects:
1. OMB Circular A-131, Value Engineering
2. FAR, Part 48 and Part 52.248
3. 10 CFR 436 subpart A – Life Cycle Cost methods and criteria contained in the Federal Energy Management Program (FEMP) rules.

8.8 Commissioning Agreements

8.8.1 Policy

This section describes the HHS policy and procedures for commissioning major renovation and construction projects for federally owned real property assets. Each OPDIV will develop, implement, and maintain a commissioning process for all new and renovated facilities that meet or exceed the Capital Investment Review Board (CIRB) threshold as outlined in 3 Real Property Planning – Owned. In developing the commissioning process, OPDIVs shall utilize commissioning practices tailored to the size and complexity of the building and its systems.

For projects below the HHS major capital construction threshold, the complexity and nature of the facility will determine the level of commissioning appropriate to meet the intent of Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.

Commissioning is the process of making sure all building systems are installed properly before occupants move in and serves to accomplish the following goals:

Reduce the number of deficiencies at completion.
Ensure systems are efficient, cost effective, and meet the user's operational needs;
Lower utility costs attributable to efficiently operating systems.
Lower maintenance costs due to properly trained maintenance staff;
Increase productivity of the building occupants because of properly balanced ventilation systems;
Ensure a design for maintainability concept;
Reduce outages and down times due to better diagnosis of failures;
Provide well-documented and successful system tests;
Ensure all building systems perform in accordance with the design requirements.
Bridge the gap between design and functionality for HVAC and control design;
Bridge the gap between testing and balancing and Building Automation System (BAS) design and functionality; and
Assist in achieving Leadership in Energy and Environmental Design (LEED) or Green Globe certification.

Retro-commissioning, re-commissioning, and continuous commissioning for existing facilities are addressed in 6 Facility Management, Operations, and Maintenance.

8.8.2 Administrative Requirements

Procedures
1. Each OPDIV will develop a commissioning process utilizing industry wide standards such as ASHRAE Guideline 0-2005, "The Commissioning Process." The process should include an experienced commissioning provider that is government selected independent 3^rd party entity, commissioning requirements in the construction documents, a commissioning plan, verification of the installation and performance of systems to be commissioned, and a commissioning report. Commissioning should begin in the early programming phases of the project and extend through the end of the warranty phase for the facility. The final version can be purchased at the ASHRAE website.
2. Each OPDIV will develop a plan to implement the commissioning process. The implementation will include staff training to ensure a clear understanding of the process. Commissioning requirements will apply to any applicable project with a design start date after the implementation of the OPDIV's Commissioning process.
3. The OPDIV will continue to maintain the process by:
  1. Ensuring that appropriate funding is requested within each project budget;
  2. Reviewing the projects and process to determine if the aforementioned goals are being met; and by
  3. Updating the process to ensure continual improvements.
4. OPDIVS should use their Subject Matter Experts, knowledge of each facility and industry standards available to develop their commissioning process. This document is general in nature and not to be considered a manual to develop a commissioning process.

8.8.3 Guidance and Information

Commissioning functions as an advocacy service to the OPDIVS. Rigorous operational testing provides a high level of assurance that building systems are properly installed and will operate within performance guidelines set forth in the design documents.

Quality Assurance for Building Systems
Commissioning affords the owner an unbiased expert's perspective of a building's system installation, operation, and performance and provides for monitoring of specified building system service training events. The commissioning process does not alter the responsibilities of design professionals, installing contractors or their vendors, but rather augments the efforts of all parties toward the common goal of achieving a quality-building product. It promotes the delivery of a safe, healthy environment for building occupants by turning over functionally tested building systems with appropriate documentation and training for owners and operators. Commissioning, with its quality management focus, should be part of the project from its inception because an early start provides maximum benefits. Commissioning bridges the gaps between the government, the design team, the construction team and building system vendors using a methodical process by:
1. Identifying and documenting the needs and the requirements of the facility to ensure that the designed systems are efficient, cost effective and commensurate with the identified needs;
2. Thorough review of design and submittal documents;
3. Ensuring that the systems installed are operable and maintainable;
4. Functional performance testing of the systems to ensure that they are interacting and performing optimally;
5. Progress and coordination meeting attendance;
6. Resolution tracking forms;
7. System verification checks;
8. Start-up and operator involvement for HVAC equipment;
9. O&M and as-built documentation corroboration;
10. Specified factory service and off-season mode testing enforcement;
11. O&M training facilitation and recording;
12. Ensuring that the design intent, the installations and the O&M requirements are clearly and thoroughly documented;
13. Training of the operators and the facility staff to ensure they operate and maintain the facility per the design intent; and by
14. Integration of subsystems.
Functions and Responsibilities of the Commissioning Agent

The methodology for carrying out a comprehensive commissioning process is organized by project phase: pre-design, design, construction, acceptance, and finally post-acceptance. The functions and responsibility of the Commissioning Agent during each phase shall include:
1. Share Information - The primary responsibility is to inform the General Contractor (Construction Manager), the Government and A/E on the status, integration, and performance of systems within the facility. The Commissioning Agent shall function as a catalyst and initiator to disseminate information and assist the design and construction teams in the completion of the construction process. This shall include system completeness, performance, and adequacy to meet the intended performance of each system. Services include construction surveillance, spot testing, verification, and functional performance testing, and providing performance and operating information to the responsible parties.
2. Quality assurance - Assist the responsible parties in maintaining a high-quality level of installation and system performance.
3. Observation of testing - The Commissioning Agent shall observe, and coordinate testing as required to ensure system performance meets the design intent. The construction contractor performs testing required by the contract to ensure that the facility meets or exceeds the contract requirements. The Commissioning Agent doesn't coordinate the construction contractor's work but does verify required systems and component testing has been performed by the construction contractor.
4. Documentation of tests - The Commissioning Agent shall document the results of the performance testing directly or ensure that the appropriate technicians document all testing. The Commissioning Agent shall provide standard forms to be used by all parties for consistency of approach and type of information to be recorded.
5. Technical Expertise - The Commissioning Agent shall provide technical expertise to review and edit operating and maintenance descriptions for each system.
6. Deficiencies - The Commissioning Agent shall provide technical expertise to oversee and verify the correction of deficiencies found during the commissioning process.
7. Acceptance - The Commissioning Agent shall work with and advise the Construction Manager, government, and A/E concerning the date of acceptance for each system for the start of the warranty period (if different than the overall Beneficial Occupancy Date).
Commissioning Phases

Suggested objectives for each commissioning phase are outlined below.
1. Program & Pre-Design commissioning phase
  1. Document initial design intent
  2. Develop commissioning plan
  3. Document requirements as specified in Owner's program
  4. Select commissioning Agent
2. Design Commissioning Phase
  1. Ensure clear design intent documents are developed
  2. Develop commissioning plan & specifications, functional performance test, and integrated system testing that is reviewed and accepted by A/E firm and the Government
  3. Coordinate building systems with HVAC equipment & systems
3. Construction Commissioning Phase
  1. Verify system/equipment start-up and operation
  2. Verify building management controls
  3. Verify Testing Adjusting & Balancing report
  4. Document all tests, observations, and issues
  5. Verify system installation
  6. Verify installed equipment is maintained in accordance with O&M while project is under construction and prior to final acceptance
  7. Coordinate as-built drawings
  8. Coordinate O&M training
4. Acceptance Commissioning Phase
  1. Enforcement of Warranty
  2. Verify functional testing of all systems
  3. Verify all systems comply with contract documents
  4. Verify accuracy of final Testing, adjusting & balancing (TA&B) report
  5. Conduct O&M training
  6. Complete systems manual
  7. Complete training program
  8. Endurance Testing - applicable for critical occupancies and complex buildings such as Current Good Manufacturing Practice (cGMP), BSL-3, BSL-4 Data centers and other areas directed by the government. During this phase the equipment is running continuously, and the facility is used as intended for a set period of time and it's monitored and trended to observe all systems are running per design intent.
  9. Review and verify the contractor's commissioning related as-built documents
5. Post Acceptance Commissioning Phase
  
  Shall be done before the warranties expire
  1. Continued adjustment, optimization of the building systems
  2. Maintain performance of the systems per the contract requirements
  3. Revision of as-built records
  4. Testing, adjusting & balancing of affected systems
The Commissioning Report

The commissioning report will generally consist of the following:
1. Detailed narrative of commissioning results.
2. Verification checklist data sheets.
3. Functional performance test data records.
4. System operation description and final design intent.
5. As built drawings/ shop drawings.
6. Final updated operation & maintenance manuals.
7. Training documents.
  
  These records will be beneficial to the owner for as long as the building serves its occupants. The records are helpful to the maintenance personnel that operate and maintain the equipment. The records would also be helpful to the OPDIVS should there be any question regarding air quality and working environment.

8.9 Acceptance and Occupancy

8.9.1 Policy

The purpose of this section is to provide guidance to facilitate transitioning from the construction phase of a project to beneficial use and operations by the user. Areas of particular significance to effective facility activation include inspection and acceptance, warranties, training, documentation in operations and maintenance manuals, and occupancy.

HHS activities shall normally take beneficial occupancy or use after a project is substantial completion. Potential risks shall be carefully considered when deciding whether to occupy or utilize a portion of a construction project prior to substantial completion of the entire project.
HHS activities shall ensure that an effective management program is in place to enforce the warranty provision of the contract for the benefit of the government.

8.9.2 Administrative Requirements

Procedures
1. Safety Data Sheets (SDS)
  
  SDS shall be required from the contractor in a separate binder. A SDS is designed to provide both workers and emergency personnel with procedures for handling or working with a particular substance. SDS's include information such as physical data (melting point, boiling point, flash point etc.) toxicity, health effects, first aid, reactivity, storage, disposal, protective equipment, and spill/leak procedures. These are of particular use if a spill or other accident occurs.
2. Inspection and Acceptance
  
  Contractors and Lessors are required to maintain adequate quality control systems and perform inspections to ensure that all work conforms to contract requirements. The Contractor and/or Lessor all should maintain complete inspection records and provide them to the Government. All work shall be conducted under the general direction of the Contracting Officer and is subject to Government inspection and test before acceptance to ensure compliance with the terms of the contract. Government inspections and tests are for the sole benefit of the Government. They do not; relieve the Contractor and/or Lessor of responsibility for providing adequate quality control measures; of being responsibility for damage to or loss of the material before acceptance; constitute or imply acceptance; or affect the continuing rights of the Government after acceptance of the completed work under the contract.
  
  OPDIVS are encouraged to have one or more full-time Government inspectors on large and complex construction or design-build projects. The presence or absence of a Government inspector does not relieve the Contractor and/or Lessor from any contract requirement, nor is the inspector authorized to change any term or condition of the contract without the Contracting Officer's written authorization.
  
  The Contractor and/or Lessor will, without charge, replace or correct work found by the Government not to conform to contract requirements, unless in the public interest the Government consents to accept the non-conforming work with an appropriate adjustment in contract price. The Contractor and/or Lessor will promptly remove rejected material from the premises.
  
  If, before acceptance of the entire work, the Government decides to examine completed work by removing it or tearing it out, the Contractor and/or Lessor, on request, shall promptly furnish all necessary facilities, labor, and material to support this effort. If the work is found to be defective or nonconforming in any material respect due to the fault of the Contractor and/or Lessor or its subcontractors, the Contractor and/or Lessor shall defray the expenses of the examination and of satisfactory reconstruction. However, if the work is found to meet contract requirements, the Contracting Officer shall make an equitable adjustment for the additional services involved in the examination and reconstruction, including, if completion of the work was thereby delayed, an extension of time.
  
  The Government shall accept, as promptly as practicable after completion and inspection, all work required by the contract that the Government determines meets contract requirements or that portion of the work the Contracting Officer determines can be accepted separately. Acceptance by the Contracting Officer shall be final and conclusive except for latent defects, fraud, gross mistakes amounting to fraud, or the Government's rights under any warranty or guarantee.
3. Warranties
  1. Basic Warranties - It is in the best interest of the Government to have the entire construction project warranted. OPDIV Contracting Officers shall insert in full text FAR Clause 52.246-21, Warranty of Construction, into construction contracts as well as design-build contracts. This clause provides for the following: The contractor, whether a construction contractor or a design- build contractor, essentially warrants that work performed under their contract conforms to the contract requirements and is free of any defect in equipment, material, or design furnished, or workmanship performed by the Contractor or any subcontractor or supplier at any tier. The standard warranty period extends usually for one year from the date of final acceptance of the work. Contractors shall provide warranties in a separate binder with points of contact names, addresses, and all applicable phone and fax numbers.
  2. Adjustments of Basic Warranty/ Guarantee Period - The contractor may request an adjustment in a warranty period based on completion of the work and use of the equipment and/or system by the Government. Systems that are utilized on a seasonal basis must be tested and used through a complete annual load cycle. For example, if the final inspection were held in the fall, the air conditioning system would not be properly tested under full load until the following air conditioning season. The contractually specified warranty period does not apply to latent defects. The timeframes in which remedies for latent defects are possible is usually much longer than the standard one-year warranty.
  3. Manufacturers', Subcontractors', and Suppliers' Warranties - The Architect/Engineering (A/E) firm generally specifies product performance characteristics that result in warranties. In many cases these warranties are industry standards. All warranties express or implied, from subcontractors, manufacturers, or suppliers for work performed and materials furnished are enforceable under the contract. The Contractor is required to obtain all warranties that would be given in normal commercial practice; all warranties are to be executed, in writing, for the benefit of the Government, and all warranties are to be enforced for the benefit of the Government.
    
    The management of the warranty process should be passed to the maintenance staff operating the facility along with COR responsibilities. This group of individuals identifies the actual problem through troubleshooting processes and determines if it is in fact a warranty issue. Then appropriate action and follow-up can occur as well as a documented history. This staff also works with the Contracting Officer to resolve any items in dispute and provide any necessary technical information to the Contracting Officer for enforcement of the warranty requirement.
4. Occupancy
  1. Normal Occupancy - Generally, the facility is occupied after final inspection and acceptance.
  2. Beneficial Occupancy - The Government has the right to take possession of or use any completed or partially completed part of the work. Before taking possession of or using any work, the Contracting Officer should furnish the Contractor a list of items of work remaining to be performed or corrected on those portions of the work that the Government intends to take possession of or use. However, failure of the Contracting Officer to list any item of work shall not relieve the Contractor of responsibility for complying with the terms of the contract. The Government's possession or use shall not be deemed an acceptance of any work under the contract.
  3. Government Responsibility - When beneficial occupancy is affected prior to full acceptance, a careful inspection of the area to be occupied should precede such occupancy. Since the Government would be responsible for restoration and repair of damage resulting from the beneficial occupancy, records of conditions in both photographic and narrative form at the time of occupancy are essential. While the Government has such possession or use, the Contractor is relieved of the responsibility for the loss of or damage to the work resulting from the Government's possession or use. If possession or use by the Government prior to substantial completion of the entire project delays the progress of the work or causes additional expense to the Contractor, an equitable adjustment should be made in the contract price, the time of completion, or both, and the contract should be modified in writing accordingly.
  4. Occupancy Agreements - The Contracting Officer shall prepare an appropriate letter to the contractor setting forth the extent of the occupancy and its effective date and time. Lists of deficiencies and omissions in the occupied area should be included. In addition, when partial occupancy is required, an agreement with the contractor must be executed which delineates facility service responsibilities (maintenance, utilities, security, etc.).

8.9.3 Guidance and Information

Operation and Maintenance Manuals

Operations and Maintenance (O&M) Manuals are essential to the activation and long-term operations of HHS facilities.Provisions in the construction or design-build contract should require the development of a consolidated operations and maintenance manual for the entire facility in both hard copy and electronic soft copy. A copy of the manual should be kept and maintained by the OPDIV's facilities management and the operation and maintenance field office. The manual shall include:
1. A copy of allwarranty's documents (hard and/or electronic copies)
2. As built/Record drawings of project
3. A list of all training requirements, training documents (especially videos) and a roster of trainees.
4. All information necessary to optimize operations and maintenance of facility equipment and systems.
5. Specific operational protocols for special and highly sophisticated equipment.
6. Standard operating procedures and parameters.
7. Commissioning results as a baseline for validation and facility performance expectations.

8.10 Accessibility Requirements for Persons with Disabilities

8.10.1 Policy

This section sets forth policy and procedures for all HHS – occupied facilities accessibility requirements and compliance with the Architectural Barriers Act (ABA) of 1968, 42 USC 4151-4156, also commonly referred to as Public Law 90-480, and as defined in the Federal Management Regulation (FMR) §102.76.60 through 102.76.95.

The Architectural Barriers Act (ABA) applies to any facility constructed, altered, leased, or financed with federal funds that is intended for use by the public or may result in employment of persons with disabilities.

The standard issued under the ABA requires buildings and facilities designed, built, altered, or leased to be accessible to persons with disabilities. This act is enforced by the U.S. Access Board and maintains accessibility guidelines under the ABA.

The ABA Guidelines cover new construction and planned alterations and do not apply to existing facilities except where altered. Existing facilities built or altered according to earlier versions of the ABA standards will not necessarily have to meet the updated version except where they are later altered or renovated.

The Board was created and develops guidelines to enforce the ABA and HHS OPDIVs shall comply with the ABA. The ABA Accessibility Standard (ABAAS) is the GSA's new accessibility standard under the ABA and replaced the Uniform Federal Accessibility Standards which is available at https://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-ada-standards

8.10.2 Administrative Requirements

Procedures
1. Assessing Compliance
  1. All projects shall be reviewed for compliance with the applicable standard during the review of contract drawings and specifications (for all design phases), and again at the time of the final on- site inspection of the completed facility.
  2. The review of contract drawings and specifications and/or inspection during construction at serves the following purposes:
    1. It provides assurance that project plans are being reviewed closely for adherence to prescribed requirements at appropriate design stages.
    2. It provides documentation in the project file that the facility meets mandatory requirements, or that the contract drawings reflect certain omissions or deviations from the standards.
    3. It serves as a guide to take corrective action by the project architect in instances where the contract drawings do not conform completely to the standards.
    4. Where historic properties may be adversely affected, early consultation with the State Historic Preservation Officer and the Advisory Council on Historic Preservation is advisable, to avoid delays in the design process.
  3. To meet the record keeping responsibilities of FMR §102-76.95, it is recommended that the applicable portions of the standard be used as a checklist. A completed copy of the checklist should be placed in the project file when the design documents are completed and a second completed checklist when construction is completed. A notation in the left margin of "Y" (yes), "N" (no) or "NA" (not applicable) opposite each item in the checklist is sufficient.
  4. If Historic Properties may be affected, then see 9 Historic and Archeological Preservation.
2. Exceptions
  1. Exceptions for specific facilities as defined in FMR §102-76.60 are:
    1. Privately owned residential facilities unless leased by the Government for subsidized housing programs, and
    2. Any facility on a military reservation designed and constructed primarily for use by able- bodied military personnel.
  2. Exceptions when the costs of alterations to meet accessibility are disproportionate to the costs of the overall alterations are defined in FMR §102-76.70 through 102-76.85. Documentation shall be maintained in the project file demonstrating the basis of the disproportionate costs and the extent to which the standard is incorporated into the project.
3. Waivers
  1. HHS and its OPDIVS cannot grant waivers to the requirements. The Administrator of General Services has the authority to waive or modify the standards in FMR § 102–76.65(a) on a case-by- case basis if the agency head submits a request for waiver or modification and the Administrator determines that the waiver or modification is clearly necessary.
  2. All requests for waivers, supporting documentation, and notification of final action on requests shall be placed in the project file. Accessibility requirements cannot be waived in HHS facilities that are accredited by the Joint Commission.
4. Inaccessibility Concerns on HHS Property
  
  Concerns regarding inaccessible conditions on HHS property received by HHS OPDIVs from employees or facility users should be resolved at the OPDIV level, when possible. Questions regarding resolution of the accessibility concern should be sent to PSC mailbox.
  
  Questions regarding inaccessibility received from the Architectural and Transportation Barriers Compliance Board (ATBCB) will be forwarded to the appropriate HHS OPDIVs for review and necessary action.
  
  Inaccessibility concerns received by the PSC/RLO/RPMS at the PSC mailbox that require site investigation to determine validity or means of resolution will be forwarded to the appropriate OPDIV facilities office for investigation and action. An interim reply will be prepared and sent to the party submitting the complaint (i.e., the ATBCB or the complainant) by the PSC/RLO/RPPS.
  
  Upon completion of its investigation, the OPDIV facilities office will notify the ATBCB or complainant, as appropriate, of the results. A copy of final resolution shall be furnished to the PSC mailbox. In cases where remedial action is required, the facilities office will notify the HHS OPDIV official responsible for operating or funding the facility of any standards violation, and any necessary remedial action.

8.10.3 Guidance and Information

Guidance
1. The Architectural Barriers Act (ABA) of 1968, 42 USC 4151 – 4156, establishes accessibility requirements for facilities designed, built, altered or leased with Federal funds.
2. The Americans with Disabilities Act (ADA) of 2010, establishes accessibility requirements for employment, public services, public accommodations, and telecommunications. The Act does not directly cover Federal or federally funded facilities, which remain under the Architectural Barriers Act (ABA). Per §102-76.60, the ABA does not apply to any privately owned residential facility unless leased by the Government for subsidized housing programs.
3. 42 USC 4152 of the Architectural Barriers Act authorizes the Administrator of the General Services Administration (GSA), in consultation with the Secretary of the Department of Health and Human Services (HHS), to prescribe standards for the design, construction and alteration of buildings (other than residential structures, Department of Defense (DOD) and Postal facilities) to ensure accessibility by persons with disabilities.
4. The U.S. Access Board issued the guidelines for both the Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA) requirements as the combined document, "The ADA and ABA Accessibility Guidelines for Buildings and Facilities" June 23, 2004. The guidelines issued by the U.S. Access Board are not legally enforceable but serve as baselines for meeting ADA and ABA accessibility requirements. Under the ABA, the "Uniform Federal Accessibility Standards" remained the applicable standard until GSA (along with DOD, HUD, and United States Postal Service (USPS)) issued new enforceable standards based on the U.S. Access Board's guidelines. With respect to the ADA, the guidelines issued by Department of Justice (DOJ) in 1991 remain the applicable enforceable standard.
5. GSA issued the FMR §102-76 Design and Construction onNovember 8, 2005 containing the updated standard in Subpart C, Architectural Barriers Act effective May 8, 2006.
Resources

8.11 Architectural Barriers Compliance

8.11.1 Policy

Most Federal buildings and certain federally funded buildings are covered by the Architectural Barriers Act (ABA) of 1968. This act is enforced by the Access Board and requires that covered federally funded buildings and facilities be accessible to persons with disabilities. The Board was created to enforce the ABA, which it does through the investigation of complaints.

8.11.2 Administrative Requirements

Procedures
1. Existing Facilities
  
  The ABA Accessibility Standards (ABAAS) have been adopted by the Department of Defense (2008), the General Services Administration (2005), and the U.S. Postal Service (2005). ABAS covers new construction and planned alterations under the control of the agencies that have adopted it and do not apply to existing facilities except where altered or new construction of facilities owned by an OPDIV that complies with ABA using an alternative Americans with Disabilities Act (ADA) standard, such as the Department of Justice's 2010 ADA Standards for Accessible Design. Existing facilities built or altered according to earlier versions of the ABA or ADA standards will not necessarily have to meet the updated version except where they are subsequently altered or renovated.
2. Complaint Handling
  1. Complaints of inaccessible conditions received by HHS OPDIVS from employees or facility users should be resolved at the OPDIV level, when possible. Otherwise, they may be forwarded to PSC/RLO/RPMS for review and resolution.
  2. Complaints received from the Architectural and Transportation Barriers Compliance Board (ATBCB) shall be forwarded to the appropriate agency facilities office for review and necessary action.
  3. Complaints received by PSC/RLO/RPMS that require site investigation to determine validity or means of resolution will be forwarded to the appropriate OPDIV facilities office for investigation and action. An interim reply will be prepared and sent by PSC/RLO/RPMS to the party submitting the complaint (i.e., the ATBCB or the complainant).
  4. Upon completion of its investigation, the OPDIV facilities office will notify the ATBCB or complainant, as appropriate, of the results. A copy of final resolution shall be furnished to the PSC mailbox. In cases where remedial action is required, the facilities office will notify the HHS OPDIV official responsible for operating or funding the facility of any standards violation, and any necessary remedial action.

8.11.3 Guidance and Information

Facilities not constructed with Federal funds, but which house federally conducted programs and activities, are covered by Section 504 of the Rehabilitation Act of 1973 (29 USC 794) which is enforced by the Office for Civil Rights (OCR). Effective May 8, 2006, the Uniform Federal Accessibility Standards (UFAS) were replaced by the Architectural Barriers Act (ABA) Accessibility Guidelines, codified at 36 C.F.R. Part 1191 (ABA Chapters 1, 2 and 3 through 10) (the ABA Standards and other ADA standards are available at www.access-board.gov).

For guidance and information contact reach out to the U.S. Access Board through the following link.

8.12 Design Build

8.12.1 Policy

This section establishes Design-Build (D-B) as the procurement methodology that receives first consideration for all design and construction projects that exceed the 3.3.2.1 Approval Thresholds and are federally owned real-property assets throughout the Department of Health and Human Services. Design-Build is the preferred method for designing and constructing facilities owned and operated by HHS. Implementation of Design-Build will help ensure that facilities development within the Department honors the Department's commitment to completing priority projects with mission-critical functions. The acquisition of design and construction services for federal facilities using Design-Build shall follow the policies and procedures in FAR 36.3. Note that Design-Bid-Build remains the preferred method for laboratory facilities by several OPDIVs. Laboratories and/or other scientific facilities require complex and specific designs that may not lend themselves well to Design-Build.

The Real Property Management Service (RPMS), Real Estate, Logistics, and Operations (RLO), Program Support Center (PSC), Assistant Secretary for Administration will review any exceptions to this policy as part of the project approval process (see 3.3.2.3 Building and Facilities Project Types). Exceptions will be granted for projects contracted under P.L.93-638, Indian Self-Determination and Education Act, with tribal entities.

8.12.2 Administrative Requirements

Procedures
1. Acquisition Planning
  
  During planning of project delivery and contract strategy for all projects, OPDIVs shall analyze the appropriateness of the Design-Build methodology. The OPDIV Contracting Officer, in close collaboration with appropriate design and construction professionals, determines during the budgeting and planning stage whether it is feasible and effective to use the Design-Build process. The OPDIVs should base their analyses on a best practice such as the Construction Industry Institute's Project Delivery and Contract Strategy. The OPDIVs shall include the acquisition analysis documentation with the Facility Project Approval Agreement provided to ASA/PSC/RLO/RPMS. While D-B procurement can save time once the project is awarded, the D-B process requires more extensive "front-loading" of the project – that is, a more thorough and rigorous programming effort and a more thorough definition of requirements. In the planning stages of the project, the D-B process can be significantly more labor intensive for in-house personnel than the more traditional project delivery methods (e.g., design-bid-build process).Key elements in the success of a D-B project include:
  1. Development and continual update of a thorough acquisition plan.
  2. Developing comprehensive planning and programming documents based on preliminary studies and documents
  3. Developing a request for proposal with a balance between performance specifications and specific technical requirements, where needed, for the type of facility being built. The level of technical detail included in the request for proposal will depend upon the complexity of the project and specific OPDIV requirements for construction. It is critical that request for proposal doesn't include and shall not use a Design Package such as a D-B Set, 15%, or any level of design document. If such documents are provided as part of Request for Proposal at that point you are not using a Design-Build Strategy. Additionally, the Government will become liable for Design and Construction. OPDIVs should provide information from pre-planning activities such as concept or schematic designs, which do not require the Design-Builder to continue from those designs but are informative (see section Pre-Project Planning).
  4. Preparing accurate and necessary planning documents that will become integral to the request for proposal. The project team must secure OPDIV and high-level buy-in of the programming documents ahead of time, rather than making changes after award of the D-B contract.
  5. Preparing realistic budgets to reduce the likelihood of scope reductions once the RFP is advertised.
  6. Developing procedures and project controls to minimize owner-generated changes. Owner generated changes can be particularly problematic during a D-B project.
  7. Assignment of an integrated project team that can ensure during D-B selection evaluations that the proposers have met the requirements of the RFP with sound design and the D-B firm is qualified for the level of work. The Government has the best opportunity for success by securing a D-B contractor with a demonstrated track record and collaborative experience in the type of project being proposed.
  8. Prior to advertising design-build services the OPDIV must ensure that adequate funds are available to complete the design of the project; that the Planning and Programming Documents and HHS Facility Project Approval Agreement documents and statement of work are complete; evaluation criteria are established and the government estimate is complete.

8.12.3 Guidance and Information

Guidance on Design-Build Contract Formulation and Procurement

FAR 36.3 prescribes only the acquisition method for two-phase Design-Build selection procedures and there is no guidance on the required clauses or contract administration. Design-Build does not waive Federal law or regulations. For example, the 6 percent fee limitation for basic design services applies and the Miller Act requiring bonding applies. Refer to the FAR Matrix for the appropriate provisions and clause under both A/E and construction contracts. It is recommended that the provisions and clauses be written in full text.

Design-Build can be accomplished through various contract methods. This is not intended to be an all-inclusive list, nor does HHS endorse a preference, but provides the following information on the most common methods.
1. "Best Value" is a selection process in which proposals contain both price and qualitative components, and award is based upon a combination of price and qualitative considerations. Qualitative can be further subdivided as to technical design and/or management plan. A qualification-based selection process can be used in Phase One to determine the competitive range. Those firms who are the most qualified are invited to submit a proposal in response to the Phase Two RFP.
2. "Equivalent Design/Low Bid" is a form of best value selection in which qualitative proposals are followed by a critique rather than scoring. Price envelopes remained sealed. Each offeror receives the critique of its proposal and makes design changes and corresponding price amendment. Revised designs are evaluated for compliance, and then price envelopes, both original and amended, are opened. Award is based on lowest price because the proposal creates relative equivalency of designs.
3. "Fixed Price/Best Design" is a form best value selection in which the contract price is established by the Government and stated in the RFP. Design proposals and management plans are evaluated and scored, with award going to the team offering the best qualitative proposal for the established price.

8.13 Design Bid Build

8.13.1 Policy

This section sets forth policies, procedures, and guidance for use of a Design-Bid-Build (D-B-B) acquisition strategy for federally owned real property assets. Traditionally, D-B-B acquisitions utilize two or more separate and discrete contracts to deliver a facility. One contract is for design by an Architect/Engineering (A/E) firm and another for construction. Under this arrangement there is no privity between the contracts. The designer who develops the plans and specification (contract documents) cannot direct or supervise construction. Some project delivery methods mitigate this disconnect between design and construction with use of CM, Construction Management Contract (e.g. CM@Risk).

The procurement of architectural-engineering (A/E) services is qualifications based, in accordance with FAR 36.6 and the requirements of the Brooks Act (40 U.S.C.1101-1104). The Brooks Act "declares it to be the policy of the Federal Government to publicly announce all requirements for architectural and engineering services and to negotiate contracts for architectural and engineering services on the basis of demonstrated competence and qualification for the type of professional services required and at fair and reasonable prices". Construction can be procured using sealed bids in accordance with FAR 36.1 and FAR 36.2. Construction can also be procured under FAR 36.214 Special Procedures for Price Negotiation in Construction contracting.

8.13.2 Administrative Requirements

Procedures

The following information is provided to assist with the planning and implementation of Design-Bid- Build projects.
1. Request to Utilize Design Competitions
  
  The OPDIVS shall obtain permission to utilize design competitions from the Program Support Center under the Office of the Assistant Secretary for Administration (ASA/PSC).
2. Pre-Design Procedures
  
  Prior to advertising design services, the OPDIV must ensure that adequate funds are available to complete the design of the project; that the Planning and Programming documents and HHS Facility Project Approval Agreement and statement of work are complete; evaluation criteria are established, and the government estimate is complete.
  1. Availability and Certification of Design Funds: Designs for new facilities, replacement facilities, and building additions must be accomplished with funds appropriated for the specified project. Designs for building improvement projects must normally be accomplished with specifically designated funds or with lump sum amounts appropriated for repairs and improvements. Guidance should be requested from the PSC mailbox in the event of questions on the appropriateness of proposed design funding sources. In unusual cases where time is critical, and the appropriation/apportionment appears to be imminent, it may be appropriate to advertise for design services before the funds are received. In such cases, the Contracting Officer should obtain a written statement from the agency's financial management officer to the effect that appropriation and apportionment of proper funds is expected within 60 days. Wording should also be included in the announcement to the effect that the Department expects to receive design funds soon, and that the award of the A/E contract is subject to the receipt of these funds.
  2. Planning and Programming Documents and HHS Facility Project Approval Agreement: The planning and programming documents and HHS Facility Project Approval Agreement (FPAA) define a large portion of the scope of work and are essential to the A/E selection process. Therefore, planning and programming documents clearly defining the project scope and requirements should be approved prior to advertising the procurement. An HHS Facility Project Approval Agreement must be approved by the Department prior to awarding a design contract.
  3. Preparation of the A/E Statement of Work: The A/E Statement of Work is the key document in the actual performance of the work. A well-prepared statement of work minimizes negotiation problems, eliminates ambiguities, and assures that the design will satisfy program needs. The planning and programming documents should be incorporated into the Statement of Work or attached to the Statement of Work to describe the project requirements and concept. The Statement of Work should be tailored to the specific design requirements of each project. Typical areas covered by the Scope of Work are pre-design services, basic design service and optional construction contract administration services. Email PSC mailbox to request a sample Statement of Work.
  4. Evaluation Criteria: In qualification-based selections, the Evaluation Board establishes criteria to be used in evaluating the A/E firms before making the public announcement. The criteria for qualification-based selections shall conform to the Federal evaluation criteria set forth in FAR 36.6. In design competitions the selection of the A/E is based on a comparison of proposed solutions to planning and programming documents or the design problem. The evaluation criteria will be listed in the announcement, in descending order of importance.
  5. Government Prepared Estimate of A/E Costs: The rules governing preparation of the independent government estimate of the cost for required A/E services are set forth in FAR 36. The estimate shall be prepared based on a detailed analysis of the required work as though the Government were submitting a proposal. The estimate must be prepared prior to publishing to the System for Award Management (SAM.gov) announcement. The independent government estimate serves two main purposes:
    1. It determines the sufficiency of funds to cover the project as outlined in the statement of work. If the estimate indicates that the allocated funds are not sufficient to cover the proposed project, the procuring agency may modify the statement of work or pursue an authorized increase in funding.
    2. It serves as a guideline to measure the reasonableness of the A/E firm's fee proposal. Major differences between the government estimate and the A/E cost proposal, or the scope of services to be furnished, should be investigated thoroughly. Major differences may indicate that the statement of work is not clearly defined or communicated. Any changes that are made in the government estimate or statement of work must be agreed upon by both the Contracting Officer (CO) and the technical staff and recorded in the CO's file. The fee estimate for design shall not exceed six percent (6%) of the estimated cost of construction, as required by FAR 15.404-4(b)(4)(B). Other required services, not related to design, must be included in the estimate but are not included in the 6% calculation. The maximum fee limitation does not apply to the following A/E services: preparing planning and programming documents; feasibility studies; measured drawings of existing facility; subsurface investigations; structural, electrical, and mechanical investigation of existing facility; topographic/ boundary/ utilities surveys; special consultant services; the cost of reproducing drawings and specifications for bidding and for distribution to prospective bidders and plan file rooms; reproduction of approved designs through models, color renderings, photographs, or other presentation media; travel and per diem allowances; supervision or inspection of construction, review of shop drawings or samples and other services performed during the construction phase; and all other services that are not integrally part of the A/Es design services.
3. Evaluation Boards
  
  The OPDIVS shall establish appropriate evaluation boards to evaluate A/E qualifications to design HHS facilities.
  1. The Evaluation Board for architect-engineer services shall be established according to FAR 36.602-2. It is recommended that the board include registered professionals representing relevant architectural and engineering disciplines. The board could also include members representing the program users to be housed in the facility, operations and maintenance, agency planning and other specialized support functions. The agency official responsible for facilities will establish an Ad Hoc Evaluation Board for each architect-engineer contract.
  2. Duties of the Chairperson - The Chairperson of the A/E Evaluation Board for all contracts will assist the OPDIV Facility Manager or designee in appointing the members of the board. In addition, the Chairperson will call and preside over as many meetings as he/she deems necessary to complete the selection process. The Chairperson will also recommend the assistance of other technical personnel (non-voting technical advisors) who may make a substantial contribution to the evaluation process. The Chairperson will also develop the final selection report for approval and inclusion in the contract file.
  3. Competition Advisor - In the rare event that a design competition is contemplated the OPDIV shall appoint a Competition Advisor. The Competition Advisor serves as the sponsoring OPDIV's focal point for the design competition. The Competition Advisor should be a registered architect who holds a senior position within OPDIV or HHS. The Competition Advisor may be hired from the outside if HHS does not have qualified personnel available for the assignment. The Competition Advisor will: prepare the Competition Announcement; assist in the preparation of the Program of Requirements; establish eligibility requirements and register the competitors; assist in the recruitment of board members; establish competition security protocols; and establish the presentation format for the competition.
  4. Design Competition Board - The board should be composed of nationally recognized registered architects and engineers including senior HHS design professionals. The board members or their staff are not allowed to compete for the project. (See Design Competitions when used.)
4. Design-Bid-Build Procedures
  1. Public Announcements - The Government shall make a public announcement of any planned A/E selection. See Paragraphs Qualification Based Selections for A/E Services and Design Competitions for additional information.
  2. Evaluation Procedures - A/E firms shall be evaluated and rated to establish the competitive range. Each evaluation board member shall review the information submitted by each A/E firm and rate the firms individually. When the members have finalized their rankings of the firms, they shall be tabulated and summarized. Contact PSC mailbox to request asample Selection Evaluation Form. From this summary, the firms within the competitive range are selected for interviews. At least three of the top firms thus selected shall be notified and scheduled for discussions (interviews).
  3. Interviews - The evaluation board shall clearly communicate to each firm the evaluation criteria, time allowed and key A/E personnel that should attend the interview. Firms should be allowed sufficient time to prepare for interviews. The topics must stay within the parameters established in the announced evaluation criteria in the public announcement. At the end of the interviews, the board members shall rank the interviewed firms again, using the previously established ranking criteria. With the approval of the OPDIV Facility Director, telephone interviews may be conducted with A/E Firms for small projects in accordance with the Short Selection process described in the FAR.
  4. Selection Report - The selection report shall be prepared by the Chairperson of the board and signed by the Chairperson and each member of the board. It shall include a list of the most highly qualified firms ranked in terms of relative qualifications. This report shall document the extent of the evaluation and the considerations upon which the recommendations were based. The report shall be submitted to the Selecting Official.
  5. Negotiations - Negotiations shall be conducted with the top-ranked A/E firm. If a mutually satisfactory contract cannot be negotiated with that firm, the CO shall obtain a best and final offer, in writing, from the prospective A/E firm, terminate the negotiations, and so advise the firm. Negotiations shall then be initiated with the next listed firm in the order of preference, and this procedure shall continue until a mutually satisfactory contract has been negotiated. If negotiations fail with all the listed firms, the selection process shall reconvene. Promptly at the conclusion of any negotiations, a memorandum setting forth the principal elements of the negotiations shall be prepared for use by the reviewing authorities and for inclusion in the contract file.
  6. Design Contract Award - After the selection of the A/E firm and conclusion of negotiations, the CO shall award the contract. The contract and the statement of work shall reflect any changes that were agreed upon during negotiations. The contract shall set forth the scope, the period of performance (i.e., the start and completion dates), a schedule of submissions, and method of payment. The contract shall reflect the A/E firm's assurance that it will provide a design that can be constructed within the Government's construction/renovation cost estimate.
  7. Design Contract Administration - Each OPDIV shall decide the appropriate key staff for any project team depending on complexity, cost, type of construction, etc. Key team members that may be involved in design projects are: Contracting Officer, Project Manager, COR, Architect/Engineer, and Commissioning Agent (if required see Functions and Responsibilities of the Commissioning Agent).
    1. Monitoring Schedule, Scope, and Cost: In addition to review of the work it is standard practice for project managers to measure performance of design projects using management tools that evaluate progress with respect to schedule, scope, and cost. By integrating the resultant data, useful information is derived which can be used to determine the percentage of work complete for payment purposes or to identify schedule problems, which require corrective action on the part of the contractor.
    2. Submittals: The need for submittals shall be determined by the OPDIVs (see Procedures). The OPDIVs shall define the scope, process, elements, and documentation of the submittal approval activity.
    3. Contractor Payments: Contractor progress or partial payments are usually made periodically (monthly) during the progress of the Project or at specific submittal authorized in the contract. The amount of payment is usually based upon the contract amount or an approved progress schedule, and project manager recommendation to the Contracting Officer for payment. From time to time, payments may be reduced for cause, as outlined in the FAR. Approval authority for progress payments rests with the Contracting Officer.
    4. Final Payment: Contractor final payment is made at the end of the Project when the contractor has satisfactorily accomplished all provisions and requirements of the contract. The project manager addresses design issues and reports any deficiencies to the Contracting Officer. Approval authority of final payment rests with the Contracting Officer.
  8. Pre-Acquisition Review (PAR) for Construction Contracts - The Contracting Officer will take charge of and manage the project acquisition and the construction contracting process. The architect/engineer is responsible for the professional quality, technical accuracy, and coordination of all services required under their contracts including adequacy of the plans and specifications. The OPDIVs are encouraged to establish a pre-acquisition review process to assure that everyone involved in the development and assembly of the construction acquisition package confirms that the package is complete and satisfactory. Under the direction of the Contracting Officer, the PAR team should consist of the Contracting Officer, Contracting Officer's representative, architect/engineer, OPDIV's technical review team, and the Office of General Counsel. It is recommended that the PAR team review the construction contract to assure that all applicable provisions and clauses are included. The PAR team should confirm that the construction acquisition package is in accordance with the Facility Project Approval Agreement (FPAA).
  9. Pre-Bid Conference - OPDIVs are encouraged to hold on-site pre-bid conferences for all construction projects. The agenda will vary depending on the scope and complexity of the project. For major projects, it is recommended that OPDIVs use the services of a professional recorder to record the proceedings and send each participant a copy of the meeting record.
  10. Submission of Bids or Proposals – Consistent with FAR Part 14 or 15, as appropriate, bids or proposals must be submitted in accordance with the terms and conditions of the solicitation, which shall specify a due date, time, and location for submission.
  11. Evaluation of Bids or Proposals - If sealed bidding procedures are used, the contracting officer will follow evaluation requirements of FAR Part 14. If a negotiated acquisition, then the contracting officer will follow the evaluation requirements of FAR Part 15, including the provision at FAR 52.215-1, which allows for award without discussion.
  12. Contract Award - Contract award will be made with reasonable promptness upon completion of the evaluation of the offers pursuant to the relevant FAR provisions and terms of the solicitation.
  13. Construction Contract Administration - Each OPDIV shall decide the appropriate key staff for any project team depending on complexity, cost, type of construction, etc. Key team members that may be involved in construction projects are: Contracting Officer, Project Manager, COR, Architect/Engineer, Commissioning Agent (if required) and the Construction Contractor.
    1. Monitoring Schedule, Scope, and Cost: In addition to visual inspections of the work and materials, it is standard practice for project managers to measure performance of construction projects using earned value assessment/management tools that evaluate progress with respect to schedule, scope, and cost. By integrating the resultant data, useful information is derived which can be used to determine the percentage of work complete for payment purposes or to identify schedule problems that require corrective action on the part of the contractor. In so doing, the project manager is applying the most basic Earned Value principles.
    2. Submittals: The need for submittals shall be determined by the OPDIVs, as required by the appropriate acquisition regulation, the contract, and the pre-construction conference agenda. Typically, submittals take one or more of the following forms: shop drawings, plans, diagrams, catalog submittals, color charts, samples, mock-ups, safety plans, testing plans, test results, disposal plans, coordination drawings, production plant visits, as-built drawings, and other associated information. Substitutions may be allowed only at the discretion of the Contracting Officer. The OPDIVs shall define the scope, process, elements, and documentation of the submittal approval activity.
    3. Contractor Payments: Contractor progress or partial payments are usually made periodically (monthly) during the progress of the Project. The amount of payment is usually based upon the contract amount, an approved schedule of values, an approved progress schedule, project manager verification of the value of work-in-place and stored materials, satisfactory progress on the approved progress schedule, and project manager recommendation to the Contracting Officer for payment. From time to time, payments may be reduced for cause, as outlined in the FAR. Approval authority for progress payments rests with the Contracting Officer.
    4. Final Payment - Contractor final payment is made at the end of the Project when all provisions and requirements of the contract have been satisfactorily accomplished by the contractor. The project manager addresses construction issues and reports any deficiencies to the Contracting Officer. Approval authority of final payment rests with the Contracting Officer.
  14. Acceptance: The Contracting Officer has sole authority to grant final acceptance of any facility or portion thereof. Generally, acceptance infers approval of all work, including satisfactory correction of all the items on the deficiencies and omissions list. Acceptance of the contract work is final and conclusive, subject to certain contractual conditions such as warranties, guarantees, latent defects, etc. For this reason, a facility should not be accepted without a clear delineation in writing of any conditions or exceptions to the acceptance. Acceptance should not be granted unless all close-out items have been completed, such as O&M Manuals, as-built drawings, list of systems and equipment, attic stock, tools, maintenance parts, etc., and that all specified operator/ maintenance personnel training has been provided.
    1. Warranties: The OPDIVs responsible for the Project shall appoint appropriate staff to assist the Contracting Officer in the management of the technical portion of the warranty process for the completed Project. The OPDIVs shall determine the period that the project manager remains involved with warranty management, before transferring the responsibility to the organization providing operations and maintenance functions for the facility.
    2. Closeout Documents: All documents required by the contract including, but not limited to, Guarantees and Warranties, Commissioning Reports, Record Drawings, Operation and Maintenance Manuals, and Training Documents, shall be provided as specified prior to contract closeout. Each OPDIV shall prepare a format to assure that all contracts are closed out and all funds are disbursed or de-obligated from the project.
    3. Training: Training of Operations and Maintenance Staff to operate and maintain the new facility and sophisticated building systems and equipment is very important to the activation of the facility. Provisions for adequate operation and maintenance training should be provided for in the specifications or in the general provision of the contract. The contract should require the contractor to provide a detailed training plan based on actual submitted

8.13.3 Guidance and Information

Qualification Based Selections for A/E Services

The Federal Acquisition Regulations (FAR) pertaining to A/E services were adopted to carry out the requirements of the Brooks Act (40 U.S.C. 1101-1104).
1. The regulations setting forth the procedures for choosing an A/E firm may be found in FAR subpart 36.6, "Architect Engineer Services." These procedures apply to the selection of all architectural and engineering services, including studies, surveys, and analyses. The purpose of this section is to supplement the FAR subparts mentioned throughout the section and it should be read in conjunction with them.
2. The Short Selection Process described in the FAR may be utilized for contracts that do not exceed the small purchase limitation. The Board or the Chairperson of the Board can make the selection of the A/E.
  1. Selection by the Board - The board shall review and evaluate architect-engineer firms in accordance with Board's functions, except that the selection report shall serve as the final selection list and shall be provided directly to the Contracting Officer. The report shall serve as an authorization for the Contracting Officer to commence negotiations in accordance with FAR 36.606.
  2. Selection by the Chairperson of the Board - When the board decides that formal action by the board is not necessary in connection with a particular selection, the following procedures shall be followed:
    1. The chairperson of the board shall perform the functions required in FAR 36.602-3.
    2. The OPDIV's designated selection authority shall review the report and approve it or return it to the chairperson for appropriate revision.
    3. Upon receipt of an approved report, the chairperson of the board shall furnish the Contracting Officer a copy of the report, which will serve as an authorization for the Contracting Officer to commence negotiations in accordance with 36.606.
3. The CO shall make a public announcement of any planned A/E selection. The CO will provide a copy of the announcement to the Evaluation Board for the file. The specific requirements for publicizing Federal contract actions are set forth in the FAR. Announcements for design contracts expected to exceed $25,000 must be published in SAM.gov, unless the contracts are to be procured through an existing task order or other procurement process through which the firms included in the procurement have been previously selected through full and open competition published in SAM.gov. The CO will determine the appropriate method and requirements for the public announcement for each project. The announcement should be published at least thirty days prior to the A/E selection, and the procurement schedule should take this requirement into consideration.For contracts expected to be $25,000 or less, the CO shall as a minimum publicize the announcement in the vicinity of the project by displaying the notice at the procuring office and publishing it in the local daily newspaper.Affected professional societies in the area may be notified of the project consideration as well. The public announcement should contain brief but clear statements consistent with the requirements of the FAR. It should include the project location, scope of service required, the relative importance of the significant evaluation factors presented in descending order, range of construction cost, type of contract proposed, estimated start and completion dates, and date by which responses must be received. Any other specialized requirements (energy conservation, phased design/construction, etc.) or limitations on eligibility (small business or Buy Indian set- aside) should also be indicated. The amount of funding available for the project should never be announced. The public announcement should define what information the A/E must provide before and during the selection process. The information to be provided may include the "Architect-Engineer Qualifications" on SF 330 if the A/E firm does not have a current SF 330 on file with the agency. The agency may also request additional information, but the public announcement should clearly define what information will be considered and what the evaluation criteria will be.
Design Competitions

A design competition is a method of awarding a design contract based on design excellence. A design contract should be awarded to the person or firm who submits the best design in the judgment of an evaluation board in accordance with the rules of the competition. Design competitions are allowed under FAR 36.602 (b).
1. When the Department approves the use of design competition, OPDIVs may evaluate firms based on their conceptual design of the project. Characteristics that would make design competition an appropriate A/E selection method include:
  1. Unique situations exist involving prestige projects, such as the design of memorials and structures of unusual national significance.
  2. Sufficient time is available for the production and evaluation of conceptual designs; and
  3. The design competition, with its related costs, will substantially benefit the project.
2. Design competitions can be open or invited. They can be one or two stages. Open design competitions are simply competitions that are open to all design professionals - most frequently registered architects. Invited competitions are design competitions where a select group of design professionals – typically highly regarded or recognized architects are invited to submit a design on a project.
  1. One-stage competitions are competitions where the winner is selected by the board and awarded the contract to design the project. This is the most common type of competition used by the private sector and internationally. The competitor bears all the cost and risk in entering the design competition. The Vietnam Veteran's Memorial is an example of a one- stage design competition.
  2. A two-stage design competition is a competition that is usually open to all design professionals and the highest-ranking competitors are invited to compete in the second stage. It is common practice for the board to give the second stage competitors a written critique of their design submission.
3. The competition announcement should feature a short description of the project and its location. Key dates such as competition registration deadlines and submission deadlines should be mentioned. The name of the board members should be stated. Eligibility requirements should be clearly stated. The competition announcement should be widely disseminated in professional journals and newsletters to maximize interest in the competition.
  1. Competition Registration - Persons or firms interested in competing in the design competition should be registered and pay a nominal entry fee to defray the cost of the competition.
  2. Eligibility - Competitions should open to architects and engineers who are registered in the United States.
  3. Competition Security - To assure fair and impartial evaluations of competition submittals, names should not be used to identify competitors. Registrants for the competition should be assigned a number to assure anonymity. These numbers should be used throughout the competition process.
4. The design competition document should consist of the competition rules, a site description, program of requirements, and competition submission format.
  1. Rules. The rules of the competition must be clear and enforceable. Date and time for the competition submission deadline must be stated in the document. Failure to meet the deadlines and other violations of competition rules should be grounds for disqualification.
  2. Site Description. The site description should contain a site analysis with a detailed site plan showing topography and other physical features. The site and the areas surrounding it should be illustrated, photographed, and discussed. The availability of utilities should be illustrated and discussed.
  3. Program of Requirements. The Program of Requirements (POR) is key to the success of the design competition. The POR should provide the goals and objectives of the project. It should have space requirements, functional relationships, and other design requirements. The POR should clearly state the design problem.
  4. Drawings, Photographs and Maps. The OPDIV should provide drawings, site plans, maps and photographs necessary for the competitors to complete their submissions. The OPDIV may require the competitors to use the drawings and maps as base drawings or backgrounds for the sake of consistency in the presentation of submissions.
  5. Submission Format. The size and number of boards or panels should be clearly stated. The OPDIV should establish the type of media permitted for the presentation of the submission. If written documents are required a format should be established.
5. The Board selects the prize winners. The Board prepares a report to the OPDIV Selection Authority in accordance with the FAR recommending selection in order of preference. The results of the competition are made public.
Preparation and Publicizing Solicitations
1. Preparation and Publicizing Solicitations: Solicitations must describe the requirements of the Government clearly, accurately, and completely. Unnecessarily restrictive specifications or requirements that might unduly limit the number of bidders or offerors are prohibited. The solicitation should include all documents (whether attached or incorporated by reference) that prospective bidders or offerors must submit with their bid or proposal.
  1. Solicitations must be publicized pursuant to the requirements of FAR 5.2. Publication must provide sufficient time to enable prospective bidders or offerors to prepare and submit bids or proposals. Projects above OPDIV approval authority may not be advertised without an approved Facility Project Approval Agreement.
  2. In addition, all HHS construction shall be executed in compliance with applicable Federal Acquisition Regulations plus Executive Orders, laws, and regulations relating to
    1. Labor
    2. Energy
    3. water conservation
    4. sustainability
    5. other environmental matters
    6. safety
    7. building codes
    8. fiscal responsibility.
General Construction Procurement Guidance

The procurement of construction should be in accordance with the acquisition plan. There are only two basic types/ major categories of contracts. They are Fixed Price and Cost-Reimbursement. Generally, firm-fixed priced contracts shall be used to acquire construction, FAR 36.207. Firm-fixed-price contracts shall be used when the method of contracting is sealed bidding, FAR 14.104. FAR 16.2 addresses incentives and economic price adjustments in fixed-price contracts.
1. A firm-fixed-price contract provides for a price that is not subject to adjustment, except for appropriate modifications. This contract type places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss. It provides maximum incentive for the contractor to control costs and perform effectively, while imposing a minimum administrative burden upon the contracting parties.
2. Fixed-price contracts with economic price adjustment may be used for construction in certain circumstances as outlined in FAR 36.207(c) and when authorized in accordance with FAR 16.203.
3. Justification is required for other than firm-fixed-price contracts for construction, except on projects contracted with tribes on P.L. 93-638. The basis for using incentives or economic price adjustments in a fixed-price construction contract shall be documented in the acquisition plan.
Safety

The OPDIVs should assure that the Contractor follows federal and state safety regulations as they relate to construction. Although job safety is the responsibility of the contractor, the project manager should look for unsafe or potentially unsafe conditions. Should the project manager become aware of any such conditions, the project manager should notify the Contracting Officer and the contractor. If the unsafe condition is life threatening, the project manager should direct the contractor to take immediate action to remedy the situation, even to the point of issuing a "Stop Work Order", if necessary. If a "Stop Work Order" is issued, the project manager should notify the Contracting Officer of the pertinent facts as soon as possible.
Government Oversight

The OPDIV is responsible for performing oversight of all aspects of the contract to assure that construction contract requirements are met:
1. Quality Assurance in accordance with FAR Part 46
  
  Government contract quality assurance shall be performed at any stage of performance and such places as may be necessary to determine that the work conforms to contract requirements. Quality assurance surveillance plans should be prepared in conjunction with the preparation of the statement of work. The plans should specify all work requiring surveillance and the method(s) of surveillance.
2. Changes
  
  The FPAA is a binding agreement that establishes project scope, budget, and schedule. Changes at this level of development are costly (construction phase) and should be avoided. Each OPDIV should have a formal change control process. Technical changes due to differing site conditions or errors and omissions by the architect/engineer or the Government should be approved at the OPDIV level. Programmatic changes should also be approved at the OPDIV level. The Contracting Officer is the only person with authority to issue a change or modification to the construction contract. The Contracting Officer may delegate authority to the project manager for field changes. If the Program of Requirements (POR) is exceeded or if the cost exceeds the limits of the FPAA, approval must be obtained through HHS using the FPAA process. The OPDIVs shall assure that the approved changes are properly implemented into the project. See also 5 Project Planning for changes requiring Departmental approval through the FPAA.

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