What authority does an Agency have to overlook the 6% statutory fee limitation for architect-engineer services under a Design Build or Design Bid Build, competitive FFP/IDIQ construction MACC award? Please provide direction as to where the governance lies.
The 6 % statutory limitation stated at FAR 15.404-4 (4)(i)(B) does not apply to a design-build contracts or task orders. One only has to look as far as Comptroller General Decision Fluor Enterprises, Inc. v. U.S., 64 Fed. Cl. 461 (2005) for a definitive answer. The court recognized that design-build contracts were not subject to the fee-limitation statute because such contracts were procured using price competition for the entire project without regard to how much design effort the contractor intended to undertake.
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Also in the Association of Soil and Foundation Engineers (ASFE) case, B-201395.2, MAY 6, 1982, 61 COMP.GEN. 377 it states “In light of the legislative history of the Brooks Act, we have held that the Act applies to the procurement of services which uniquely or to a substantial or dominant extent logically requires performance by a professionally licensed and qualified A-E firm.” Logically, if services that do not properly fall within the Selection of Architects and Engineers Statue’s circumspection of “architectural or engineering services” or, even more apparent, are not architectural or engineering services at all, then the fees for those services are not rightly subject to the § 254(b) fee limitation.”
In conclusion, design-build is written under the authority of FAR subpart 36.3 and requires price competition where the selection of Architects and Engineers under FAR subpart 36.6 requires the selection of the most highly qualified without regards to price. The two processes cannot be put in the same procurement. Based on the regulations and the court decisions, the 6 % statutory limitation does not apply to a design-build contracts or task orders.