Overview
Subpart 36.6 outlines the specialized procedures for acquiring Architect-Engineer (A-E) services, governed primarily by the Brooks Act. Unlike most federal acquisitions that prioritize price competition, this subpart mandates a qualifications-based selection process where firms are ranked by competence and then negotiated with in order of preference.
Key Rules
- Qualifications-Based Selection: Procurement is based on demonstrated competence and professional qualifications rather than price competition (FAR 36.601-1).
- Public Announcement: All requirements for A-E services must be publicly announced.
- The "Three-Firm" Rule: Evaluation boards must hold discussions with at least three of the most highly qualified firms and recommend at least three firms to the selection authority.
- Sequential Negotiation: The Contracting Officer must negotiate with the highest-ranked firm first. If a fair and reasonable price cannot be reached, negotiations are formally terminated, and the CO moves to the second-ranked firm.
- Statutory Fee Limitation: While the text references FAR 15.404, A-E services for the production of designs, plans, and specifications are generally limited to a fee of 6% of the estimated construction cost.
- Conflict of Interest: A firm that designs a project is generally prohibited from being awarded the subsequent construction contract for that project.
- Design Within Funding Limits: Contractors are often required to design projects so that construction costs do not exceed a specified budget; if they fail, they may be required to redesign at no additional cost.
Responsibilities
- Contracting Officer (CO):
- Prepares or obtains an Independent Government Estimate (IGE) before negotiations.
- Conducts negotiations starting with the top-ranked firm.
- Enforces liability for design errors and deficiencies.
- Terminates negotiations in writing before moving to the next firm.
- Evaluation Board:
- Reviews Standard Form (SF) 330 submissions and agency data files.
- Evaluates firms based on specialized experience, technical competence, and past performance.
- Prepares the selection report ranking the most qualified firms.
- Selection Authority:
- Reviews the board's recommendations and makes the final decision on the ranking.
- Provides written justification if the final ranking differs from the evaluation board's recommendation.
- Architect-Engineer Firm:
- Maintains an updated SF 330 Part II on file annually.
- Ensures professional quality, technical accuracy, and coordination of all designs.
- Responsible for "Redesign at No Cost" if design errors occur or if construction costs exceed limits due to poor design.
Practical Implications
- Shift in Strategy: For contractors, marketing to the government for A-E services is about building a "portfolio of qualifications" (SF 330) rather than sharpening a pencil for the lowest bid. Past performance and specialized experience are the primary currencies.
- Geography Matters: Agencies may use geographical proximity as a selection criterion, meaning local firms often have a distinct advantage for regional projects, provided it does not unnecessarily limit competition.
- Risk Management: A-E firms face significant professional liability. If a design error causes a $1M change order in the construction phase, the government is mandated to investigate and, if justified, seek recovery from the A-E firm.
- Strict Procurement Path: COs must be careful when "mixing" services. If a contract includes both A-E and other services (like environmental study), but A-E work is the "dominant extent," they must use these Subpart 36.6 procedures, or the procurement may be subject to protest.