Can you provide more explicit language of a regulatory nature and source that supports the fact that requesting both a technical and cost proposal in an A&E Services solicitation under the Brooks Act is non-compliant with the Brooks Act.
The Brooks Act (Public Law 92-582), also known as the Selection of Architects and Engineers statute is a United States federal law passed in 1972 that requires that the U.S. Federal Government select engineering and architecture firms based upon their competency, qualifications and experience rather than by price.
The process is governed by FAR subpart 36.6 and FAR 36.101(b) further states “When a requirement in this part is inconsistent with a requirement in another part of this regulation, this Part 36 shall take precedence if the acquisition of construction or architect-engineer services is involved.”
1. When initiating an A-E procurement for a new contract, a synopsis must be issued in accordance with FAR subpart 5.2. While for standard non A-E contracts, the synopsis/notice period is 15 days over $25,000 [FAR 5.203(a)] and then per FAR 5.203(c) the Contracting Officer must provide “30-day response time for receipt of bids or proposals” When it comes to A-E contracting, the language is very different. Per FAR 5.203(d) for A-E. Here the FAR reads “… allow at least a 30 day response time from the date of publication of a proper notice of intent to contract for architect-engineer services.”
- In non A-E you have a separate notice and then then a specific period to receive “bid or proposal”
- In A-E you have minimum of 30 days response time. This means the A-E must respond to the synopsis. What do they respond with?? It clearly does NOT state a bid or proposal. If you review FAR 36,702(b) The SF 330, “Architect-Engineer Qualifications, shall be used to evaluate firms before awarding a contract for architect-engineer services.” This qualification form (SF 330) is what is utilized by all Federal agencies to access the A-E’s qualifications for a specific job based on the criteria set forth in the synopsis. There are NO cost proposals received at this time.
2. FAR 36.602 will give you mandatory selection criteria to be used in your synopsis. Paragraph c of the section talks about holding discussions, but as you can see it is ONLY on the technical issue. Still NO cost/prices are involved at this point.
36.602 -- Selection of Firms for Architect-Engineer Contracts.
36.602-1 -- Selection Criteria.
(a) Agencies shall evaluate each potential contractor in terms of its --
(1) Professional qualifications necessary for satisfactory performance of required services;
(2) Specialized experience and technical competence in the type of work required, including, where appropriate, experience in energy conservation, pollution prevention, waste reduction, and the use of recovered materials;
(3) Capacity to accomplish the work in the required time;
(4) Past performance on contracts with Government agencies and private industry in terms of cost control, quality of work, and compliance with performance schedules;
(5) Location in the general geographical area of the project and knowledge of the locality of the project; provided, that application of this criterion leaves an appropriate number of qualified firms, given the nature and size of the project; and
(6) Acceptability under other appropriate evaluation criteria.
(c) Hold discussions with at least three of the most highly qualified firms regarding concepts, the relative utility of alternative methods and feasible ways to prescribe the use of recovered materials and achieve waste reduction and energy-efficiency in facility design (see Part 23).
3. At FAR 36.602-4, the final selection is made by the selection authority based solely on whom is most highly qualified to perform the work.
36.602-4 -- Selection Authority.
… This final selection shall be a listing, in order of preference, of the firms considered most highly qualified to perform the work…
4. At FAR 36.606, once the selection of the most highly qualified is completed, then and only then FAR part 15 comes into play. This is what allows you to move from FAR subpart 36.6 procedures over to issuing a RFP and receiving that cost proposal from ONLY the most highly qualified A-E firm. Note you will be negotiating in a sole source environment.
36.606 -- Negotiations.
(a) Unless otherwise specified by the selection authority, the final selection authorizes the contracting officer to begin negotiations. Negotiations shall be conducted in accordance with Part 15 of this chapter, beginning with the most preferred firm in the final selection (see 15.404-4(c)(4)(I) on fee limitation).
(b) The contracting officer should ordinarily request a proposal from the firm, ensuring that the solicitation does not inadvertently preclude the firm from proposing the use of modern design methods.
(c) The contracting officer shall inform the firm that no construction contract may be awarded to the firm that designed the project, except as provided in 36.209.
(d) During negotiations, the contracting officer should seek advance agreement (see 31.109) on any charges for computer-assisted design. When the firm’s proposal does not cover appropriate modern and cost-effective design methods (e.g., computer-assisted design), the contracting officer should discuss this topic with the firm.
(e) Because selection of firms is based upon qualifications, the extent of any subcontracting is an important negotiation topic. The clause prescribed at 44.204(b), Subcontractors and Outside Associates and Consultants (Architect-Engineer Services) (see 52.244-4), limits a firm’s subcontracting to firms agreed upon during negotiations.
(f) If a mutually satisfactory contract cannot be negotiated, the contracting officer shall obtain a written final proposal revision from the firm, and notify the firm that negotiations have been terminated. The contracting officer shall then initiate negotiations with the next firm on the final selection list. This procedure shall be continued until a mutually satisfactory contract has been negotiated. If negotiations fail with all selected firms, the contracting officer shall refer the matter to the selection authority who, after consulting with the contracting officer as to why a contract cannot be negotiated, may direct the evaluation board to recommend additional firms in accordance with 36.602.
5. Multiple-Award IDIQ A-E Contracts – Orders
FAR 16.500(d) states, “The statutory multiple award preference implemented by this subpart does not apply to architect-engineer contracts subject to the procedures in Subpart 36.6. However, agencies are not precluded from making multiple awards for architect-engineer services using the procedures in this subpart, provided the selection of contractors and placement of orders are consistent with Subpart 36.6.”
What this is if you have a multiple award A-E contract, when do task orders you must have procedures in place that are the same as selecting for a contact. This means that competition is based on the most highly qualified. Only once that is determined can you move over to FAR part 15 for issuing the RFP and receipt of proposal and then price negotiations. These will be sole source as you only issue the RFP to the most highly qualified A-E firm.