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  • Question

    Since this is a construction contract subject to the Miller Act does the 6% fee limitation under the Brooks Act apply to this solicitation/contract?


    Answer

    The Federal Acquisition Regulation (FAR) defines a Design/Build Contract as combining design and construction in a single contract with one contractor. Title 10 U.S.C. 2306(d) and 41 U.S.C. 254(b) require that for the award of contracts for architect-engineering services for public works facilities, the fee "for production and delivery of designs, plans, drawings, and specifications shall not exceed 6 percent of the estimated cost of construction of the public work or utility . . ." Since a Design-Build Contract is one contract with a single contractor, evaluation of the contract price is on the total effort and the Brooks Act would not apply.

    Under a design-bid-build, a more traditional delivery method, the design and construction are contracted for with two contracts and two contractors ,and the 6% limitation of the Brooks Act would apply in that situation.

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