When reading the Brooks Act 40USC Ch11 the very first line is an all inclusive absolute.
40 U.S. Code 1101 - Policy:
The policy of the Federal Government is to publicly announce ALL requirements for architectural and engineering services and to negotiate contracts for architectural and engineering services on the basis of demonstrated competence and qualification for the type of professional services required and at fair and reasonable prices.
The Brooks Act clearly states that ALL requirement for Architecture and Engineering Services...
Not some, not most, not those with Non Appropriated Funds, but in fact ALL.
The reading of the Brooks Act seems to make clear that there is NO waiver or exclusion to the Brooks Act.
Military Construction using non appropriated funds is still military construction under 10 USC 2855; as defined in 10USC 2801.
10USC2801 makes this clear: The term military construction as used in this chapter or any other provision of law includes any construction...
10USC2855 also makes it clear:Contracts for architectural and engineering services and construction design in connection with a military construction project or a military family housing project shall be awarded in accordance with chapter 11 of title 40.
The 6% limitation then also applies under 48 CFR 836.606-73 as there are no exclusions granted by Congress.
Non Appropriated Funds does not grant any dispensation for A/E contracts for Construction Design. Compliance with The Brooks Act 40USC Ch 11 is an absolute in ALL Architecture and Engineering services as defined under 40USC Ch 11.
Wouldn't you agree?
As your AAP question is very general, we offer you this general overall response:
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In general, the FAR does not specifically apply to non-appropriated funded (NAF) projects. However, each DOD component has its supplementary instructions for NAF projects, like AR 214-4, and they have very similar language to the FAR. The Air Force has a specific instruction 32-1023 for “DESIGNING AND CONSTRUCTING MILITARY CONSTRUCTION” that applies to NAF projects regardless of funding source. In this AF instruction 32-1023, it specifically states “the Brooks Act is not applicable to NAF contracting.” Yet in paragraph 184.108.40.206 of this same AF instruction, it enforces the 6% statutory fee limitation for A-E services. (Note that the A-E Selection Procedures Statue (Brooks Act) and the 6% statutory fee limitation are two different U.S.C’s.). For Army, USACE EP 715-1-7 offers further procedural guidance for NAF on conducting A-E selections.
In NAF contracting, the Contracting Officer has flexibility within the boundaries set by their organization. One would have to review the organization’s procurement rules and then see if the major component offered further guidance on A-E issues in either the procedures and/or funding arena to get a complete picture.
As in all complex procurement situations, always consult with your legal advisor.