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  • Question

    Can the design-build construction contractor use the original A&E contractor from the 100% design for the government documents?


    Answer

    This is a common situation where the government uses the professional services of an architect-engineer (A-E) firm to help develop a proposal rather than the formal design itself.

    Normally the government contracts with an A-E for with the formal design contract using FAR subpart 36.6 proceedures.  In some cases the agency does not have engineer staff to assist in the development of the facility requirements and that agency contracts for professional design consulting services to help develop the RFP and or conceptual design.  This situation is allowed and appropriate when following proceedures in FAR subpart 36.6 - selecting the best qualified firm, negotiating the fee and publishing their work as the RFP/conceptual design.

    FAR 36.209 specifically prohibits either of these professional design firms from "bidding on their own work" and they must recuse themselves from any follow on construction contract since they have intimate knowledge of the requirement and an unfair competetive advantage.  The situtation comes up often since many A-E firms are smaller businesses and maintain teaming agreements with a host of other A-E firms and construction firms. 

    To allow this problem to proceed creates an organizational conflict of interest (see FAR 9.5,  specifically the CO responsibilities at FAR 9.504) which is a protestable event that your agency will loose at the GAO.


    Note: this is a follow on question where the original designer's work was not used and now needs updating before a construction contract can be awarded. Proposal was a design-build (FAR 36.3 procedures) where teh original designer was the subcontract to the construction contractor.  NO this would not be appropriate.

    However, it would be possible to award a new design contract to the original designer using a J&A for sole source so that they could update their original design(and provide PCAS services) and then award the construction contract using FAR 36.2 procedures.  The J&A would have to convince your counsel that this firm remained the "best qualified" and had the capacity to finish the updates.  Otherwise you have a situation of "lost design"  and the awardee may or may not use the previous design work.

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