Would a J&A need to be prepared for this action? Also, would we just issue a time extension modification for this action?
An Architect-Engineer contract is normally awarded using the Brooks Act procedures identified in FAR Subpart 36.6 as a single award contract with a project specific scope of work to the “best qualified” firm. Under this construct, the period of performance includes the design and normally includes options for Post Construction Award Services (PCAS) for review of shop drawings, submittals and/or Title II Engineering services.
Open full Question Details
If under this normal construct, the Design-Bid-Build series of contracts gets delayed (for whatever reason other than the fault of the AE) then the AE’s period of performance should be adjusted. Except for the Option for PCAS portion of the contract, FAR 16.505(c)(3)(iii) would not be among the terms and conditions and therefore would not apply. To extend the period of performance for this contract I would cite FAR 6.302-1 as only one source (the original designer of record) can really perform this work. A J&A would be required and the negotiation for hours and updated rates may be particularly challenging.
Many commands use an alternative arrangement and utilize an IDIQ A-E services contract. In reality this is the DoD’s attempt to circumvent the Brooks Act by awarding future potential but unspecified design work using a generic scope of work and a sample seed project that roughly fits inside that generic scope. There is really no way to prove you have awarded to the “best qualified” designer since we don’t really know what we will need to have designed - but that is a different problem. These contracts exist and can be useful if task orders are properly executed within the intent of the SOW and FAR 16.505(a)(9).
However, generic scopes lead to generic designers and the future specific design tasks are then competed amongst the selected firms on the multiple award contract using a “mini-Brooks Act” or worse given to the single awardee as a sole source “no-bid” contract. The problem is that the actual project has a specific scope of work which, more often than not, does not fit the original generic scope and therefore represents a changed condition for which the negotiated rates no longer apply.
Regardless under this IDIQ contract, extending services is possible without a J&A (FAR 16.505(c)(3)(iii)) as long as clause 52.217-8 was amongst the terms and conditions.
If Option to Extend Services Clause is not one of the contract terms and conditions then there are three possible branch possibilities:
Branch plan 1) You have awarded a project specific task order using FAR 16.505(a)(9) and the completion of this task order has been delayed for whatever reason (other than the fault of the AE). The reason to extend is identical to the first scenario – only one designer of record who can finish the project, PCAS or Title II services. Extend the contract, J&A required: Citation 6.302-1
Branch Plan 2) There is a task order for specific project design services that will be awarded (immanently) to one of the firms on the IDIQ using FAR 16.505(a)(9). Extend the contract, J&A required: cite the appropriate reason to limit competition that fits this specific situation : Note that in this case since this is new work, FAR 6.302-1 is not likely to be one of the justifications.
Branch Plan 3) Your command feels they need to have a generic A-E on contract to cover future unspecified design work that may or may not come up in the interim between now and the new generic future IDIQ contract being completed. There are reasons for needing this. But the J&A for this scenario becomes a bit of a "creative writing assignment" and substantially more difficult as there is not an obvious reason to execute an extension of the existing contract for design services where there is no specific design requirement pending. Recommend getting with the facilities engineers to obtain a list of specific projects on the base wish list.