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Architect-Engineering Contracting

ACON 002

DAU GLOSSARY DEFINITION

The structure of components, their relationships, and the principles and guidelines governing their design and evolution over time.

Alternate Definition
The Federal Acquisition Regulation defines Architect-Engineering (A-E) Services as:
  1. Professional services of an architectural or engineering nature, as defined by State law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide those services;
  2. Professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and
  3. Those other professional services of an architectural or engineering nature, or incidental services, that members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services.
General Information

Prior to the 1940s, most architect and engineering services required by the Government were accomplished by “in-house” personnel. In the 1930s, Government A-E requirements were beginning to exceed “in-house” capabilities. Starting in 1939, laws were enacted which enabled the Government to contract for A-E services. The laws gave the contracting authority for A-E services, but provided no source selection procedures. In 1972 Congress passed the Brooks Act, now known as the Selection of Architects and Engineers statute, which established the statutory requirement to utilize a qualification-based selection process for A-E contracting.

 

The Selection of Architects and Engineers Statute

 

The Selection of Architects and Engineers Statute provides the policy and procedures for awarding architect-engineer contracts for the Federal Government. The statute requires:

 

  • Public announcement for all architectural and engineering services
  • Annual company submission of qualifications statements
  • Selection of winning offeror based on demonstrated technical competence and professional qualifications directly related to the professional services required 
  • Discussion with and a ranking of at least three firms in order of preference
  • Negotiation with the highest qualified firm
  • Negotiation with the second highest qualified offeror if a satisfactory agreement cannot be reached with the first ranked offeror Negotiation of fair and reasonable prices

 

Note that while source selection procedures are explained in FAR Part 15, all aspects of A-E contracting are accomplished using Part 36 procedures. FAR 36.601-3(b) states: “Sources for contracts for A-E services shall be selected in accordance with the procedures in this subpart rather than the solicitation or source selection procedures prescribed in parts 13, 14, and 15 of this regulation.”

 

The phrase “highest qualified” is not limited merely to the technical acceptability of the firm. It also includes other relevant considerations that have been universally applied to determine relative qualifications of architects and engineers to perform a specific project, and which relate to the quality of the work the Government might reasonably expect from members of these professions.

 

Section 904(b) of the Selection of Architects and Engineers statute states the procedure to be followed if the highest ranking firm fails to agree to a fee the Agency Head determines to be fair and reasonable to the Government. It states that negotiations with the architects or engineers who are ranked first, second, third, and so on be conducted independently and sequentially. If the highest ranking firm will not agree to a fee that is fair and reasonable to the Government, no further negotiations shall be conducted with that firm. The Government will then attempt to negotiate a contract with the next most qualified architect or engineer and so on, until a contract is consummated at a fee that is fair and reasonable to the Government.

 

Fee Limitations

 

Title 10 U.S.C. 2306(d) and 41 U.S.C. 254(b) require that for the award of contracts for architect-engineering services for public works facilities, the fee “for production and delivery of designs, plans, drawings, and specifications shall not exceed 6 percent of the estimated cost of construction of the public work or utility . . .”

 

The fee in A-E contracting relates to money paid for the production and delivery of designs, plans, drawings, and specifications -- what are collectively referred to as “putting the ink to the paper.” The estimated cost of construction is typically found on the project’s planning document, e.g., DD Form 1391.

 

Work performed by A-E firms under design contracts are classified in the following two work categories:

 

  • Design Services - Subject to the six percent statutory fee limitation
  • Engineering Services - Not subject to the six percent statutory fee limitation

 

There are services that are not subject to the statutory fee limitation. However, there is no document that clearly defines which services are defined as Design Services and which are Engineering Services. Some agencies within DoD have made different interpretations of which services are covered and which are not. Thus, agency policies should be consulted to ensure proper application.