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    Can a design/build be done as a Maintenance and Repair or is the correct work category construction and fall within the $750K limit?


    Answer

    Classification of work must consider several aspects;  type of work  and type of funding available are the two most common concerns.

    Maintenance is defined in the FAR as a service contract action (
    FAR Part 37) and the definition includes both maintenance of equipment and also the potential for “routine recurring maintenance of real property.”   A routine maintenance action is a normal and scheduled activity.  Consequently, it should not require any design effort.  The required actions should be fully identified in the facility Operation and Maintenance manuals that are provided as a close out item on the construction contract.  The term “maintenance” implies normal or routine operations.  The proper funding for this kind of work is the service’s Operations and Maintenance appropriation.  Contract terms should include those required by FAR Part 37 and a Wage determination as defined by the Service Contract Labor Standards (formerly Service Contract Act).

    By contrast, Repair is contained within the definition of construction (
    FAR 2.101) and is therefore governed under the rules at FAR Part 36.  Repairs can be minor or extensive but the implication is that there has been a failure (or that one is immanent) and that the facility is to be returned to a fully functional condition.  Repairs generally do require a formal design and professional engineering assessment that the repairs are compliant with building codes and facility safety standards.  Being a construction action, the Construction Wage Rate Requirements (Formerly Davis Bacon Act) must be included and the contracting terms and conditions identified in FAR Part 36

    While repair actions are also funded by the service’s Operations and Maintenance appropriation, there is a specific distinction:  

    DFARS 222.402-70. (d) Repairs versus maintenance. Some contract work may be characterized as either Construction Wage Rate Requirements painting/repairs or Service Contract Labor Standards maintenance. For example, replacing broken windows, spot painting, or minor patching of a wall could be covered by either the Construction Wage Rate Requirements or the Service Contract Labor Standards. In those instances where a contract service call or order requires construction trade skills (i.e., carpenter, plumber, painter, etc.), but it is unclear whether the work required is Service Contract Labor Standards maintenance or Construction Wage Rate Requirements painting/repairs, apply the following rules:
    (1) Individual service calls or orders which will require a total of 32 or more work-hours to perform shall be considered to be repair work subject to the Construction Wage Rate Requirements.
    (2) Individual service calls or orders which will require less than 32 work-hours to perform shall be considered to be maintenance subject to the Service Contract Labor Standards.

    It would not be proper to identify a task order as a Maintenance AND Repair action.  It is either functioning and needs maintaining (
    FAR Part 37); or it is broken and needs repairing (FAR Part 36).  One is the contradiction of the other.  You can start with a maintenance task only to find that it is indeed broken and transition to repair task (and specifically at 32 work-hours).  But they cannot both exist on the same task at the same time.

    Caution with "repair by replacement."  The DOD Financial Management Regulation is specific that building components (such as the HVAC system)  can be repaired by replacing the component using O&M funds.  This is because older HVAC systems may not have current compatible systems and that newer systems may not match the existing duct work etc etc.  However,  the DODFMR goes on to state that the structure of a facility must always be considered as construction and is therefore subject to the MILCON threshold set by 10 USC 2805  Service planning guides add to this set of regulations by stating that repair at 50% of the Plant Replacement Value (PRV)  generally exceeds the concept of "repair" and that this work is now alteration or new construction.


    Using a Design/Build contract (
    FAR 36.3) for facilities maintenance would be inappropriate as this is a Service contract action. 

    It could be acceptable to use a Design-Build contract action for a facility repair.  But this is not the intended purpose for this contract method and government cannot abdicate its responsibilities.  The agency must be able to identify what needs repairing and the standards that are acceptable.



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