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    In FY13, we the US Air Force Operational contracting squadron awarded A-E Task Order to provide 35% only construction design package. We did not get the crystal clear answer as to why the requesting agency only asked for 35% design. 6% limit (based on the 35% design) was examined per DFARS 236.606-70 at the time the Task Order was awarded. The A-E firm's 35% design was accepted by the Government and the Task Order was closed out in FY14. In FY15, the requesting agency was informed that this 35% designed project will receive funding for construction and thus wanted us to go out as 'Design-Build' RFP to construction companies - complete design based off of the 35% design and construct accordingly. However, we were told from our contracting management that we cannot solicit Design Build requirement, because we already went 'design route' and thus have to complete the design first (by the same A-E or others maybe), then go out with D-B-B RFP. The only rationale we were given as to why we have to finish design was 10 U.S.C. 9540 and DFARS 236-606-70, but they do not say we have to 'complete' the design. We were also told that if we can consider the 35% design package 'lost design', then we can solicit D-B RFP, which the requesting agency is okay with. So the question is, can we contemplate D-B RFP, by providing A-E's 35% design, or do we have to finish the design first by the A-E firm?


    Answer

    This response is caveated by stating neither the requirements nor the planning documents have been reviewed.  Note that a design build contract is a construction contract not an A/E contract.  An A/E firm may be utilized to develop the solicitation requirements and minimal design for a design build solicitation.  The idea of this initial A/E design is to set parameters but to allow room for the eventual design build team room for creativity and efficiencies.  This type of scenario will breed the best design build results.

    In your situation based on the known facts, you have no existing A/E contract/task order currently in place as this one has been closed out.  So if you need to modify the current design and retain the A/E’s liability for the design, you would need to award a new design contract to the original designer by justifying a sole source action in accordance with FAR 6.302-1, Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.   

    This would allow them to update their original design and then award the construction contract. 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.

    As for 10 USC 9540 and DFARS 236.606-70, Statutory fee limitation, these both address just that max that one can pay for design activities.  They do not directly address your specific questions.  Suggest that you get your team together, including counsel to advise the intent behind this law, to come to a consensus and direction. 

    If you decide as a team that you can move on with the current 35% design as is and determine it is sufficient to provide the design build contractor a concept/parameters, you could go with a design-build contract stating that the current design is a “concept” and accept the fact that a contractor may choose to use it or not use it.

     
     

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