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  • Question

    The FAR does not give much guidance when issuing Task Orders against the A/E IDIQ's. With that being said, since we want to complete with each of the holders each time the need arises, what should be our proper course of action? I.E.: 1. Do we ask each of the contractors to submit their revised/updated 330's to determine the most highly qualified and then negotiate price? 2. Do we ask each contractor to submit technical inforamtion and pricing to determine best value? We want to ensure that we are following the Brooks Act as required and also attempting to determine the most common type of effort in these cases. What have you seen to be the most commen. We are thinking 1 above is the best case but we have another CO that has determined that 2 above is the best option. Thoughts?????


    Answer

    New name for the Brooks Act is The Selection of Architects and Engineers Statute.  When awarding an Architect Engineer IDIQ, we are required to follow the procedures of FAR Subpart 36.6   

    The procedures for Architect-Engineer Contracting require the identification of the best qualified firm before negotiating price.  The element of competition is “best qualified”  and from the winner of that competition, we negotiate a fair price.


    The term "best qualified" is often mis-understood.  This term means that this one firm has a unique set of technical skills, capacity and past performance that are matched to the specific design requirement that the government is interested in purchasing. 


    When we are awarding a design services contract as a stand-alone we use the full Selection of Architects and Engineers Statute procedures.  (
    FAR 36.6)

    In the case of a MATOC, IDIQ or other schedule based mechanism, the initial government-contractor selection process completed SOME of the requirements for a qualifications based competition against a generic SOW (and FAR 16.5 sends us back to
    FAR 36.6) So using either a seed project or a generic scope of work we use the “Best Qualified” procedures of FAR 36.6 to select a slate of 3-5 AE firms to be included in the IDIQ award. 

    Fast forward in time:  Now there is a very specific design requirement and we need to use the AE services.  But to complete the competition the government must 1) establish that this new and specific design requirement fits within the general scope of the IDIQ contract; and then 2) finish the original competition requirements from among the IDIQ contractors in order to select the "best qualified" firm for this design requirement. 


    Failure to complete the second step violates the statute.  In the time since the IDIQ was originally awarded to a competitive range of 3-5 firms, these finalists have: gained/lost key personnel (which would affect their qualifications for this new work); been awarded or completed other design work (which would affect their current capacity and/or past performance).


    Often this “mini-Brooks Act” involves a short selection process at
    FAR 36.602-5.  Regardless it must be done.

    FAR 16.505(a)(9) In accordance with section 1427(b) of Public Law 108-136 (40 U.S.C. 1103 note), orders placed under multi-agency contracts for services that substantially or to a dominant extent specify performance of architect-engineer services, as defined in 2.101, shall—
    (i) Be awarded using the procedures at Subpart 36.6; and
    (ii) Require the direct supervision of a professional architect or engineer licensed, registered or certified in the State, Federal District, or outlying area, in which the services are to be performed.


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