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    Home/FAR Navigator/36/36.1/36.104

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        • 36.104Policy.
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    Up to 36.1
    SectionUpdated April 16, 2026

    FAR 36.104—Policy.

    Plain-English Summary

    FAR 36.104 states the Government’s policy for selecting acquisition methods for design and construction work, and for carrying out major construction projects in a way that supports sustainability, labor stability, and long-term asset performance. It covers when contracting officers must use two-phase selection procedures for design-and-construction contracts, when traditional design-bid-build or other legally authorized procedures may be used instead, and how agencies must apply high-performance sustainable building practices across new construction, modernization, renovation, repair, commissioning, operation and maintenance, management, and deconstruction. It also addresses special requirements for federally owned historic buildings, alternatives to renovation that reduce deferred maintenance, and waste diversion goals for construction and demolition debris. In addition, it requires project labor agreements for large Federal construction projects at or above $35 million unless an exception applies, and it directs contracting officers to conduct market research that meaningfully assesses local labor market conditions, including union and non-union participation. In practice, this section affects acquisition planning, source selection strategy, environmental and sustainability requirements, labor strategy, and early market research for major construction procurements.

    Key Rules

    Use two-phase selection when appropriate

    For design and construction of a public building, facility, or work, the contracting officer must use the two-phase selection procedures authorized by statute unless design-bid-build under 40 U.S.C. chapter 11 or another acquisition procedure authorized by law is used. The contracting officer must also determine that two-phase procedures are appropriate for the procurement.

    Design-bid-build remains available

    The policy preserves traditional design-bid-build as an available approach under the architect-engineer selection framework, and it also recognizes other legally authorized acquisition procedures. This means the section does not mandate two-phase selection in every case, but it does require the contracting officer to justify the chosen method within the bounds of law and the FAR.

    Apply sustainable building principles

    Agencies must implement high-performance sustainable building practices across the full life cycle of Federal facilities, including design, construction, renovation, repair, commissioning, operation and maintenance, management, and deconstruction. The goal is to embed sustainability into both new and existing assets, not just into initial construction.

    New construction must meet Guiding Principles

    All new construction and modernization projects over 25,000 gross square feet must be designed, constructed, and maintained to meet, and where practicable exceed, the Federal sustainable design and operations principles in the Guiding Principles. This creates a mandatory sustainability baseline for larger projects.

    Renovations must use sustainable principles

    Renovation projects for existing Federal buildings must use Federal sustainable design and operations principles to the greatest extent technically feasible and practicable. Agencies must therefore evaluate renovation scope and incorporate sustainable measures unless a technical or practical limitation prevents it.

    Consider alternatives to renovation

    Agencies must identify alternatives to renovation that reduce deferred maintenance costs for existing assets. This requires looking beyond a standard repair-or-renovate approach and considering whether other asset strategies better address long-term cost and condition issues.

    Protect historic buildings with best practices

    When rehabilitating Federally owned historic buildings, agencies must use best practices and technologies in retrofitting to promote long-term viability. The policy recognizes preservation constraints while still requiring modern methods that support durability and continued use.

    Divert construction waste

    Agencies must ensure pollution prevention and eliminate waste by diverting at least 50 percent of non-hazardous construction and demolition materials and debris. This establishes a minimum waste diversion expectation for covered projects.

    Require project labor agreements on large projects

    Agencies shall require a project labor agreement for Federal construction projects with a total estimated construction cost at or above $35 million unless an exception applies. This is a mandatory labor policy for large projects, subject to the exceptions in subpart 22.5.

    Market research must assess labor conditions

    For covered construction contracts, contracting officers must ensure market research includes a current and proactive examination of project-area market conditions to determine interest from national, regional, and local entities and to understand the availability of union and non-union contractors. The contracting officer may coordinate with agency labor advisors to support this analysis.

    Responsibilities

    Contracting Officer

    Select the appropriate acquisition method for design and construction work, determine whether two-phase selection is appropriate, and use it when required unless design-bid-build or another authorized procedure applies. For covered construction projects, the contracting officer must also ensure market research examines local labor market conditions and contractor availability, and must coordinate with labor advisors as appropriate.

    Agency

    Implement high-performance sustainable building practices across the full facility life cycle, ensure new construction and modernization projects over 25,000 gross square feet meet the Guiding Principles, require sustainable practices in renovations, identify alternatives to renovation that reduce deferred maintenance, protect historic buildings through best-practice retrofits, and ensure at least 50 percent diversion of non-hazardous construction and demolition debris. The agency must also require project labor agreements for covered projects unless an exception applies.

    Project Team / Acquisition Planners

    Build sustainability, labor, and acquisition-method requirements into planning early enough to shape the procurement strategy, scope, and evaluation approach. They should support the contracting officer in determining whether two-phase selection is appropriate and in identifying project labor agreement implications and sustainability requirements.

    Agency Labor Advisors

    Provide advice, as appropriate, to contracting officers conducting market research for large Federal construction contracts, especially on union presence, labor availability, and project labor agreement considerations.

    Contractors / Offerors

    Be prepared to compete under the applicable acquisition method, comply with sustainability and waste-diversion requirements in the solicitation and contract, and, for covered projects, work under a project labor agreement if required and no exception applies.

    Practical Implications

    1

    This section has to be addressed early in acquisition planning, because the choice between two-phase selection, design-bid-build, and other authorized methods affects the entire procurement timeline and source selection strategy.

    2

    Sustainability is not optional for covered projects; agencies and contractors should expect explicit requirements for design, construction, operations, renovation, and demolition waste management, and failure to plan for them can cause compliance problems or cost growth.

    3

    The 25,000 gross square foot threshold matters for new construction and modernization, so teams should verify square footage early and document how the project meets or exceeds the Guiding Principles.

    4

    Project labor agreements can significantly affect competition, pricing, schedule, and subcontracting strategy on projects at or above $35 million, so market research should be current, local, and well documented.

    5

    A common pitfall is treating market research as a formality; this section requires a real assessment of union and non-union availability and project-area interest, which can affect whether a PLA is practical and how the solicitation is structured.

    Official Regulatory Text

    (a) Unless the traditional acquisition approach of design-bid-build established under 40 U.S.C. chapter 11 , Selection of Architects and Engineers, or another acquisition procedure authorized by law is used, the contracting officer shall use the two-phase selection procedures authorized by 10 U.S.C. 3241 or 41 U.S.C.3309 when entering into a contract for the design and construction of a public building, facility, or work, if the contracting officer makes a determination that the procedures are appropriate for use (see subpart  36.3 ). Other acquisition procedures authorized by law include the procedures established in this part and other parts of this chapter and, for DoD, the design-build process described in 10 U.S.C. 2862 . (b) Agencies shall implement high-performance sustainable building design, construction, renovation, repair, commissioning, operation and maintenance, management, and deconstruction practices so as to— (1) Ensure that— (i) All new construction and modernization projects greater than 25,000 gross square feet are designed, constructed, and maintained to meet and, wherever practicable, exceed Federal sustainable design and operations principles for new construction and modernization projects in accordance with the Council on Environmental Quality's Guiding Principles for Sustainable Federal Buildings and Associated Instructions (Guiding Principles) (available at ); and (ii) All renovation projects of existing Federal buildings must use, to the greatest extent technically feasible and practicable, Federal sustainable design and operations principles for existing buildings in accordance with the Guiding Principles; (2) Identify alternatives to renovation that reduce existing assets' deferred maintenance costs; (3) Ensure that rehabilitation of Federally-owned historic buildings utilizes best practices and technologies in retrofitting to promote long-term viability of the buildings; and (4) Ensure pollution prevention and eliminate waste by diverting at least 50 percent of non-hazardous construction and demolition materials and debris. (c) (1) Agencies shall require the use of a project labor agreement for Federal construction projects with a total estimated construction cost at or above $35 million, unless an exception applies (see subpart 22.5 ). (2) Contracting officers conducting market research for Federal construction contracts, valued at or above the threshold in paragraph (c)(1) of this section, shall ensure that the procedures at 10.002 (b)(1) involve a current and proactive examination of the market conditions in the project area to determine national, regional, and local entity interest in participating on a project that requires a project labor agreement, and to understand the availability of unions, and unionized and non-unionized contractors. Contracting officers may coordinate with agency labor advisors, as appropriate.

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