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FAR 36.6 AE Services


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#1 hutch_05

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Posted 13 March 2012 - 10:33 AM

Coming for some guidance and I am going to try my best to lay out the scenario. But up front, has anyone in the Corps of Engineers ever heard of the term "Workplan"? I don't see it defined anywhere. Not in FAR, not in Brooks Act, no return on the search in WIFCON. Defining the term "workplan" versus what constitutes an actual AE "design" is the hard part in explaining the scenario.

What has been explained by engineers in the field is a design would be provided by an AE firm with official stamps. A Workplan is much less formal or no stamps, so it isn't actually "AE" per say.

Scenario:

My understanding is in the past the district would award an IDIQ contract to a construction firm, SATOC, and then would award something called a Type 1 Task Order, in that this task order was for a "workplan" only. Then there would be a follow on/separate task order under the same IDIQ,(called a type 2 TO), for the construction effort.

Of course the risk is that you pay for scoping/designs and, for one reason or another, the construction is never actually done. Type 1 task order for scope, no Type 2 task order. The reason the engineers/customers want this, is because they can supposedly negotiate a better price for the construction once the workplan is finalized.

Some might argue the reason it is allowable is because the task orders are under the same IDIQ contract. My position is that the task orders should be viewed as separate contracts. and the "workplan" is in fact an AE service when procured by itself as defined in 36.601-4(Other professional services of an architectural or engineering nature or services incidental thereto) . I don't care if it is or isn't stamped. If you want just the design/scope/workplan then you should follow the Brooks Act and FAR 36.6 procedures. Get a design from an IDIQ task order with an AE Firm.

Now, If the customer has money for construction, then the task order should be for the construction and the contractor can provide a workplan as part of that construction, but it should all be negotiated/priced upfront. That is Performance Based Contracting in my opinion, we tell the contractor what end result we want, if they provide a scope or "workplan" as part of construction that is a non issue. I think of it as an informal design/build process that is going under a task order.

So after much rambling, I would appreciate your thoughts, and I would like those to come with regulations to take back to customers explaining why we can no longer procure the way they are used to doing it, or give me regulations on why I'm wrong and it is perfectly fine to procure workplans as a separate task order.

#2 joel hoffman

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Posted 13 March 2012 - 01:16 PM

As far as I can tell, the term "workplan" comes from the service contracting world. Some organizations have issued service contracts for work that really involves A-E services and/or construction for design of new or modifications to real property or real property installed equipment and systems. I see the term as a camouflge for developing partial designs or "design criteria" to be used for construction. In my opinion, it is improper to use price competion for design efforts, using a MATOC for "services". I would agree with you that such scope of work definition and/or design criteria development should be done under some type of A-E contract vehicle, such as a an A-E ID/IQ. This is A-E services, not a "service".

It is also improper, in my opinion, to use the workplan task order to develop a budget, rough order of magnitude estimate, cost proposal, etc. for that same contractor to perform the associated construction work. This is essentially a phased approach to implementing design and construction, whereupon the government hires one firm to develop the scope of work with or without some type of construction pricing being included in the original task, and/or then develop some type of price for the scope of work, then allow the government to issuye an option for construction or follow on task order for construction. There are numerous variations to this scheme but they often circumvent the Brooks Act procedures for procuring design services. Phased approaches to obtaining design and then issuing options or task orders for construction do not constitute authorized "design-build" acquisition methods, either.

FAR 36.209 says:"36.209 -- Construction Contracts With Architect-Engineer Firms. No contract for the construction of a project shall be awarded to the firm that designed the project or its subsidiaries or affiliates, except with the approval of the head of the agency or authorized representative." Issuing a task to a firm to prepare the scope of work, then develop or finalize the price, is a violation of 36.209 in my opinion.

There is an imminent official update to an agency regulation that will discuss such practices.

My suggestion would be to use in-house or an AE ID/IQ to develop what constitutes a "workplan", or partial design, design criteria, etc., with a ROM estimate for decision making, then use a MATOC or SATOC to issue the construction task, including any further design-development or refinement, if necessary. This assumes that the workplan is for more than very simple repairs or minor non-structural alterations, etc. That is seldom the case, though.




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