FAR 36.520—Contracting by negotiation.
Plain-English Summary
FAR 36.520 is a narrow but important prescription for negotiated construction acquisitions. It tells contracting officers that, when they are using negotiation rather than sealed bidding for a construction requirement, they must include the solicitation provision at 52.236-28, Preparation of Offers-Construction. In practice, this section ensures offerors receive the standardized instructions that govern how to prepare and submit construction offers in negotiated procurements. Its purpose is to promote consistent offer preparation, reduce ambiguity, and help the Government obtain comparable proposals that can be evaluated fairly. Although the rule is brief, it matters because omitting the required provision can create solicitation defects, confusion for offerors, and avoidable protest or evaluation risk. This section does not address award criteria, pricing methods, or construction contract administration; it is specifically about including the correct offer-preparation provision in negotiated construction solicitations.
Key Rules
Use in negotiated construction
This requirement applies when the procurement is for construction and the contracting officer is using negotiation. It is not a general construction rule for all solicitations; it is tied to the negotiated method of contracting.
Insert the required provision
The contracting officer must include FAR 52.236-28, Preparation of Offers-Construction, in the solicitation. The provision is mandatory under this section and is not optional based on convenience or local practice.
Applies to solicitations
The rule concerns the solicitation stage, not contract performance. Its function is to tell offerors how to prepare their offers before submission so the Government can receive properly formatted and responsive proposals.
Promotes uniform offer preparation
By requiring the standard provision, the rule helps ensure all offerors receive the same instructions and submit offers on a common basis. That supports fair competition and easier evaluation.
Responsibilities
Contracting Officer
When conducting a negotiated construction procurement, the contracting officer must insert FAR 52.236-28, Preparation of Offers-Construction, into the solicitation. The contracting officer must ensure the solicitation package includes the required provision before release.
Offerors/Contractors
Offerors must follow the instructions in FAR 52.236-28 when preparing and submitting their construction offers. They should review the provision carefully to avoid formatting, submission, or content errors that could affect evaluation or responsiveness.
Agency
The agency must support compliance with the FAR prescription by using the correct solicitation templates and review processes for negotiated construction acquisitions. It should help prevent omissions of mandatory provisions in solicitation documents.
Practical Implications
This is a simple but mandatory solicitation-inclusion rule: if the procurement is negotiated construction, the provision must be there.
A common pitfall is using a template from another acquisition type and forgetting to add FAR 52.236-28, which can create a defective solicitation.
Contractors should not assume construction offer instructions are the same across all procurements; they should check the exact provision included in the solicitation.
For contracting officers, compliance is largely a document-control issue, but missing the provision can lead to questions, amendments, or protest vulnerability.
Because the rule is limited to offer preparation, users should not read it as changing evaluation factors, bonding, wage requirements, or other construction clauses and provisions.
Official Regulatory Text
The contracting officer shall insert in solicitations for construction the provision at 52.236-28 , Preparation of Offers-Construction, when contracting by negotiation.