on Monday, April 09, 2001 - 02:16 pm:
My office is in disagreement over whether a certain action
violates the Brooks Act. Basically, my contracting office has
been asked to obtain a proposal for a task order from an A-E
firm to which we have awarded an indefinite delivery contract
for A-E services (hydrologic modeling services). What we have
been asked to do with the proposal is where, I feel, we are
being asked to cross the line.
We have been asked to provide our A-E's proposal to our project
manager for comparison with a
State A-E contractor's proposal. Both firms, the State's
contractor and ours, will provide a proposal for same work and
be compared to each other. The comparison will include price.
My agency typically enters into cost shared project agreements
with state agencies. The project agreements spells out what each
agency will be responsible for, e.g., A-E services and design,
construction, maintenance, etc. They are usually written on a
25/75 cost share rate (25% state and 75% federal).
I am firmly against this action and feel it violates the Brooks
Act. Others in my office don't agree. Could someone else provide
some insight as to what would be considered proper here?
on Monday, April 09, 2001 - 02:21 pm:
I forgot to add that the comparison will result in award of a
contract, either under a federal contract awarded by my agency
or a State contract awarded under our sponsors procedures.
Zed on Monday, April 09, 2001 - 06:06 pm:
Why do you feel the action would violate the Brooks Act? Is it
because the selection criteria would include price? Is there any
hoffman on Monday, April 09, 2001 - 08:20 pm:
is the link to the Public Law concerning A-E selections.
The intent of the law is that A-E selections are to be based on
qualifications criteria, specifically not priced based criteria.
Original intent was not to jeopardize the public safety due to
price cutting pressures.
Happy Sails! Joel
on Tuesday, April 10, 2001 - 09:09 am:
40 U.S.C. 542 states that it is the policy of the Federal
Government "...to negotiate contracts for architectual and
engineering services on the basis of demonstrated competence and
qualification for the type of professional services required and
at fair and reasonable prices." Based on this language, I
am thinking that to have an A-E submit a proposal, negotiate a
price with that A-E, and then compare that price with another
A-E's price for the same requirement for the purpose of awarding
a contractact is, in my opinion, a violation of the Brooks Act.
What I feel is being done here is a comparison of price for the
award of a contract. The lowest price wins. To be within the
Brooks Act I would think the prices of the two A-E's could not
be compared. I would think a comparison based just on competence
and qualification factors would keep it legal.
If the same situation was applied in a Federal to Federal
scenario, instead of Federal to State, then which ever Federal
agency awarded a contract, or task order against their contract,
would be in violation of the Brooks Act. They would be making
award based on something other than an A-E's competence and
qualification. It would be the same thing as having a multiple
awarded contract and asking for proposals on the same
requirement from the awardees and awarding a task order to the
Is my thinking incorrect?
Zed on Tuesday, April 10, 2001 - 03:35 pm:
I think that your interpretation of the Brooks Act is correct,
as indicated by Joel Hoffman. But the Brooks Act does not apply
to awards made by state governments.
Johnson on Tuesday, April 10, 2001 - 03:43 pm:
The note you added concerning award of either a federal or state
contract conflicts with the facts provided in your original
question. The original question comtemplates that if the award
is made by the feds, it will be a task order under an existing
contract. The added note indicates a contract will be awarded.
There is a big difference. Is it task order or contract?
on Tuesday, April 10, 2001 - 06:01 pm:
Rich, its a task order. And Zed, whether state or federal my
thinking is that in my situation, if a federal party compares
it's price to any other price (state, federal, private) for the
same requirment, the law is being broken. The award of the
"task order" would be based on price comparison.
By the time the proposal is provided to the project manager for
comparison to the State's "task order", the
determination of fair and reasonable price would have already
been made. So why would we not award a contract? The answer
would be because the State's contractor submitted a lower price
than ours. The federal contractor wouldn't receive a contract
soley due to price competition. I don't think it matters who
that competition was with, just that there was price competition
under an A-E requirement.
Have I swayed anyone to my side or am I fighting a losing
battle? I would like to present my project manager with an
informed decsision. Any advice is well recieved.
Zed on Tuesday, April 10, 2001 - 08:17 pm:
I'm not sure I understand what the deal is between the state and
your agency or how it works, but the Brooks Act applies to
awards made by Federal agencies (including issuance of task
orders) and not to awards made by state agencies. Thus, I do not
agree with you that a state agency's decision to make an A-E
award based on a price comparison would violate the Brooks Act.
Johnson on Wednesday, April 11, 2001 - 07:59 am:
I can argue that in your case you have not violated the Brooks
Act. However, you will have circumvented the Act and there is a
The argument would be as follows: 1. You make the comparison and
the State awards a contract or order. No violation because the
State doesn't have to comply with the Act. 2. You make the
comparison and the Feds award. No violation because you are
awarding a task order to a contractor that was selected using
Brooks Act procedures.
My advice is to get an opinion, in writing, from Counsel. If
Counsel's opinion is that there is no violation I would proceed.
However, I'll qualify that by saying that you should present the
facts to your AE. If they agree to provide a proposal proceed.
It may very well be that your AE will object to having his
prices released to the State.
hoffman on Wednesday, April 11, 2001 - 08:22 am:
For the Federal contract, the clear intent of the law is to
not compete for work, based on price - negotiate a fair and
reasonable effort. I would argue that the A-E is entitled to
compensation for preparing a proposal, if it doesn't get the
work, plus there may be a violation of the Act. Happy Sails!
on Wednesday, April 11, 2001 - 08:43 am:
I don't want to split hairs here, but are you really
competing among the two firms? Or, in other words, do the firms
know that the state is seeking a proposal for the same work?
Here's a way of looking at this differently. You office awarded
an IDIQ contract for services using the Brooks Act? There wasn't
price competition for award. The state did something similar. I
assume the scope of both are for some broad level of support.
Now you have a need for services. You get your contractor to
submit a quote. The state does the same. You and the state have
joint responsibility for the project and share in the cost. You
then make a decision on which firm and which contractual vehicle
to used based on such things as budgetary matters.
As long as there isn't direct competition where each other knows
of the existence and involvement of the other, I see it can be
done. It's a question of which party (federal vs state) has the
best business arrangement.
Zed on Wednesday, April 11, 2001 - 09:01 am:
Some "political" advice: Make your case to the
appropriate official in your agency as rationally as you can and
then leave it alone, unless somebody asks you to sign the task
order. Keep pushing the issue and you may discredit yourself.
Interpretations of law and regulation are a dime a dozen and
they come in all flavors. Strictly speaking, the Brooks Act
itself does not expressly prohibit consideration of price in the
selection of A-E contractors. (That should provoke some
discussion.) The procedures in FAR Subpart 36.6 do not include
consideration of price, but they do not expressly prohibit such
consideration. (That, too, should provoke some discussion.) The
GAO says that the A-E procedures "effectively"
eliminate price competition, but consideration of price does not
necessarily equate to price competition. One could look at price
merely to determine its "acceptability" in terms of
project budget. See FAR 36.602-1(a)(6).
Some A-E selection types are now going to stomp all over me.
on Wednesday, April 11, 2001 - 02:24 pm:
Thanks all and if you're wondering, I think I'll state my
position, as recommended by Zed, and if push comes to shove get
a legal opinion, as recommended by Rich. Thanks again.
hoffman on Wednesday, April 11, 2001 - 06:27 pm:
My last point will be to state that if you ask an A-E
contractor to prepare a proposal for a task order under an
existing contract, then I beleive you have an obligation to
negotiate a fair and reasonable cost for the task. If you simply
use it for price shopping comparison with another contract
source, the A-E will have grounds for seeking sompensation.
There are numerous cases dealing with this topic on construction
contracts. The contractors have been entitled to reimbursement,
after being requested to submit a proposal and the Government
dropped the work or used the proposal for bid shopping purposes,
unless the contract provided for competitive pricing. Happy
on Wednesday, April 11, 2001 - 07:41 pm:
Anon Zed seems to be on the right track for a reasonable
course of action. I'm sure A-E traditionalist and the A-E
"lobby" will shriek a bit, but Rich and Formerfed also
make interesting points here.
As for me, I understand the "safety" aspect of the
act, but we also have even larger safety issues at stake without
these special provisions. Shall we expand the Brooks Act to
cover all aircraft that might fall from the sky and kill
innocent groundlings because there was a cost factor in their
competition? Let's expand it to weapon systems. They might
explode somewhere unintended because cost was a factor.
This seems to be more the work of special pleadings than
rationality. Cost is a factor and we all recognize that at some
point even safety's cost has a limit. I think it exceedingly
strange that some insist on environmental mattes having rather
restrictive cost benefit requirements when the cost in the sense
of letting it go can actually be disaster. Yet we eliminate
cost/safety tradeoff analysis from construction? Politics yes,
but logical nonsense.
on Thursday, April 12, 2001 - 08:50 am:
That is an interesting point. The Brooks Act was passed in 1972
when sealed bidding was the preference and almost all awards
were based chiefly on price/cost. Most services today are
acquired using "best value" methodology and, as you
point out, saftey is often as critical as with construction.
Maybe it's time for Congress to revisit this Brooks Act as it
did with the other IT one.
Zed on Thursday, April 12, 2001 - 09:03 am:
On the other hand, a case can be made that the Brooks Act
procedures are better for the procurement of professional
services than source selection procedures based on price
competition. Under some circumstances, price competition can
result in inferior service. When contracting on a
cost-reimbursement basis, price competition can produce
unrealistically low cost estimates. Maybe it's better to select
some service contractors on the basis of qualifications and then
negotiate a fair and reasonable price one-on-one. Such
one-on-one negotiations may produce better mutual understanding
of the requirement and the costs of performance than
"discussions" with offerors in a competitive range and
final proposal revisions.
on Thursday, April 12, 2001 - 09:26 am:
I completely agree. The absolute "non-compete on
price" element of the Brooks Act appears outdated.
As far as your suggestion about using Books Act procedures for
the acquisition of professional services, I couldn't agree more.
In some situations, it's probably the best way to go. Here's an
example. An agency wants to bring a contractor on board for some
project involving professional type services. The overall need
in expressed at a high level, statement of objectives or
business outcome scenario. They want to meet with several
companies, explain the project, and get solutions from industry.
They also want industry to be wide open and innovative in their
approaches. The traditional competitive process requires
price/cost to be part of the evaluation. So the agency is faced
with coming up with a more definitive statement of work or
develop some hypothetical level of effort that everyone must bid
against. This may not have even a close relationship with final
So a Brooks Act type procedure allows the agency to select the
best approach/qualified source and sit down to negotiate a
contract based on the specific solution offered. This doesn't
artificially or arbitrarly restrict solutions based on having to
evaluate price upfront. Maybe this isn't suited for all
acquisitions, but it's a tool that should be available when
on Thursday, April 12, 2001 - 12:15 pm:
I think someone, perhaps Anon Zed in another
"life," long ago (sounds like Star Wars) in another
forum argued quite coherently that the A-E process would be an
excellent model for professional services. With some of the
modifications mentioned I've long agreed with that argument. In
the more complex areas of professional services, particularly
design and build of almost anything beyond actual COTS, a
modified A-E process is probably the way to go.
It probably is time the Brooks Act be consigned to the past with
its best practices and basic rationale blended with best value
best practices forming a general "professional design build
and support" acquisition category.
Such services driven or even strongly influenced by
"cost" can and usually are anything except "cost
effective." They often have to be redone and are blatant
Zed on Thursday, April 12, 2001 - 02:52 pm:
Remember, that the Brooks Act was enacted during a time when
contracting officers routinely required competing firms to
submit cost or pricing data, even when they should have
anticipated adequate price competition. The development of
detailed cost proposals and the submission of certified cost or
pricing data was extremely costly to A-E firms, which are
generally quite small. Under the Brooks Act, only one firm needs
to prepare and submit detailed cost information. The A-E
profession will fight any change in the law that could result in
their having to prepare and submit detailed cost estimates and
proposals in order to compete for a job.
If the Brooks Act is repealed or changed to allow consideration
of price, then the new law should forbid contracting officers
from requiring all competing firms to submit detailed cost
estimates and proposals.
hoffman on Thursday, April 12, 2001 - 09:48 pm:
Anon Zed - Huh?
Were you around in 1949, when this law was passed?
I don't think there was such a thing as "cost or pricing
data", back then. Do you really and honestly have any idea
why the law was passed? Or are you speculating as to why it was
I don't have ready access to a law library until next week, or
I'd look up the Legislative Reports concerning this law. If
anyone does have access, here is some of the Legislative
history. Section 905 of title IX of act June 30, 1949, as added
by Pub. L. 103-355, title X, Sec. 10005(f)(2), Oct. 13, 1994,
108 Stat. 3409, provided that: ''This title (enacting this
subchapter) may be cited as the 'Brooks Architect-Engineers Act'
Happy Sails! Joel
on Thursday, April 12, 2001 - 11:12 pm:
Anon-Zed, I apologize - it was enacted in 1972.
Here is a website, explaining the Act and another, explaining
the required selection procedures. I haven't been able to find
the Legislative History, on-line and won't be in the office,
until next week. If you or anyone else can find this
information, I'd be appreciative. happy sails! joel
Zed on Friday, April 13, 2001 - 01:56 am:
I think you're reading something into what I said that I didn't
say. I didn't say that the cost or pricing data problem was the
reason for the law. In fact, I don't know why the Brooks Act was
passed. (The legislative history is available in the U.S. Code
and Administrative News.) I just stated a fact about the effect
of excessive proposal demands on A-E firms in the past and my
belief that those firms are not going to be willing to go back
to the time when they spent a small fortune on price proposals.
The Brooks Act has shielded them from demands for excessive
amounts of cost proposal data and I bet they'll resist any
change in that regard. That's my thinking or, if you prefer, my
speculation. I'm not interested in debating the matter with you.
on Friday, April 13, 2001 - 11:11 am:
If shielding the A-E community from a burden of each firm having
to prepare detailed price proposals makes sense it must make
sense in other areas. What do you think a reasonable extension
of that principle might be?
on Friday, April 13, 2001 - 12:53 pm:
Speaking as a total outsider from the world of A-E and Brooks
Act, I have real problems reconciling Best Approach/Qualified
Source and Affordability. If this all falls into place,
everything is fine. But, if the former results in not being
affordable, what do you do? You are now reduced to spending time
to either redo your original wish list, or try to shop your best
approach around to see if you can get this cheaper. Or, you go
to somebody else's approach and see what that one costs. Another
Realistically, none of us are going to get everything we want in
our budget request. There are lot's of things that change
because our budget request gets cut. We have to make do. Now, we
have to take what we need to have done, and find some way to get
it done. And, if it means having to look at multiple approaches
with some kind of cost data to determine even if it's
affordable, then that's the reality of today.
Hartley on Thursday, May 03, 2001 - 08:33 am:
I have long thought price or cost should be an element of the
competition for A-E services. Our technical evaluations
frequently result in near ties and, if we can't agree on price
with the first, we always go to the second firm (which means the
second firm is technically qualified), so why not introduce a
second step involving a price competition among the most highly
qualified? Anyway, getting back to the original question--I
agree with Joel. When we solicit a proposal we are implying
that, if the contractor plays by the rules (in this case,
negotiates a fair and reasonable price), we will award a
contract (or task order). To do otherwise without a valid reason
is a breach of faith. (In this case, the local sponsor may have
thought that obtaining a lower price was a valid reason. But, I
wonder why the federal agency would enter into an agreement with
a local sponsor that would allow the local sponsor to put the
federal agency in a questionable situation.) Finally, I don't
think it is fair to have a competition where one contractor has
a state contract (with the state's terms and conditions) and the
other contractor has a federal contract (with federal terms and
conditions). I'd bet the federal contract makes more demands
(thus adding to cost) than the state contract.