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A/E and 8(a) Sole Source?

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Does anyone out there see potential problems/conflicts in going 8(a) sole source for A/E services?

My hesitation would be whether there would be conflicts because we would pursue an 8(a) company based on qualifications.

Thoughts?

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See GAO B-193874, http://www.gao.gov/products/467666#mt=e-report. Ask your attorneys if it is still a valid decision.

extract:

ALTHOUGH A SMALL BUSINESS SET-ASIDE OF AN A&E PROCUREMENT MIGHT PRECLUDE AWARD TO A FIRM THAT WOULD BE FOUND TO BE THE MOST HIGHLY QUALIFIED IN AN UNRESTRICTED PROCUREMENT, WE THINK THE SETTING ASIDE OF AN APPROPRIATE NUMBER OF A&E PROCUREMENTS FOR SMALL BUSINESSES AND THE AWARDING OF A CONTRACT TO THE MOST HIGHLY QUALIFIED SMALL BUSINESS FIRM WOULD NOT BE INCONSISTENT WITH THE THRUST OF THE BROOKS BILL, WHICH IS TO SECURE AWARD OF A&E CONTRACTS ON THE BASIS OF TECHNICAL EXCELLENCE WITHOUT REGARD TO COMPETITIVE PRICING.

WE BELIEVE THAT THE 8(A) PROGRAM SHOULD BE SIMILARLY VIEWED, I.E., IT IS NOT INCONSISTENT WITH THE BROOKS BILL TO PROCURE A&E SERVICES UNDER THE SBA 8(A) PROGRAM.

sorry, the ALL CAPS comes from the decision itself...

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Yes, there is a conflict with going 8( a ) sole source and the competitive procedures for selection of an A-E firm under the Brooks A/E Act procedures, as implemented in FAR 36.6.

Please note that the Decison that ji referred to above (B-193874, OCTOBER 11, 1979, 59 COMP.GEN. 20) concerned a competitive set-aside for 8(a ) A/E firms and that the GAO concluded:

"IN THIS RESPECT, THERE IS NO EVIDENCE, EITHER IN THE SMALL BUSINESS ACT ITSELF OR IN THE LEGISLATIVE HISTORY THAT THE CONGRESS INTENDED TO ABROGATE THE BROOKS BILL SELECTION CRITERIA IN THE PROCUREMENT OF PROFESSIONAL A&E SERVICES UNDER THE 8(A) PROGRAM. THUS, EXCEPT IN THOSE INSTANCES WHERE THE CONGRESS HAS CLEARLY MANDATED A CONTRARY RESULT, E.G., BOYER, BISKUP, BONGE, NOLL, AND SCOTT & ASSOCIATES, INC., 55 COMP.GEN. 765(1976), 76-1 CPD 110 (CASE INVOLVING THE AWARD OF AN A&E CONTRACT WITHOUT REGARD TO THE BROOKS BILL UNDER AUTHORITY OF THE INDIAN SELF DETERMINATION AND EDUCATION ASSISTANCE ACT, 25 U.S.C. 450(1976)), THE AWARD OF A CONTRACT FOR A&E SERVICES MUST, IN OUR VIEW, BE GOVERNED BY THE POLICY EXPRESSED IN THE BROOKS BILL EVEN THOUGH THE ZONE OF COMPETITION ELIGIBLE FOR THE AWARD MAY BE LEGALLY LIMITED BY OTHER CONSIDERATIONS."

Unless this Decision has been superseded or otherwise prohibited under Agency regulations, a competitive set-aside for 8( a ) A/E firms, using the selection procedures under FAR 36.6 would appear to be allowable. As ji stated, please ask your attorneys if it is still a valid decision. See: http://www.gao.gov/assets/430/422412.pdf

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Thanks to WIFCON, I found an Oct 7,2010 GAO Decision (Powerhouse Design Architects & Engineers, Ltd, B-403174; B-403175; B-403176; B-403177; B-403633; B-403647; B-403648; B-403649) .which references the 1979 Vector Engineering, Inc, Decision.

See http://www.wifcon.com/cgen/403174.pdf

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I'm curious what's y'all's take (Joel in particular) on going 8(a) sole source for DESIGN-BUILD? There's some debate amongst KO's in my contracting shop & legal counsel about whether the Small Business Act (section 8(a) in particular) qualifies as "another acquisition approach authorized by law" as referenced at FAR 36.104, 10USC 2305a, 41USC 253m, and 10 USC 2862 (all linked below). The USACE has an ER 1180-1-9 Design Build Contracting that states that competition and two phase is required as well, but it doesn't address the "another acquisition method authorized by law" question either so it's not bringing any clear resolution to the table. Thanks in advance!

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FAR 36.104(a) [Construction] Methods of Contracting - "(a) Unless the traditional acquisition approach of design-bid-build established under the Brooks Architect-Engineers Act (40 U.S.C. 1101 et seq.) or another acquisition procedure authorized by law is used, the contracting officer shall use the two-phase selection procedures authorized by 10 U.S.C. 2305a or 41 U.S.C. 253m when entering into a contract for the design and construction of a public building, facility, or work, if the contracting officer makes a determination that the procedures are appropriate for use (see subpart 36.3). Other acquisition procedures authorized by law include the procedures established in this part and other parts of this chapter and, for DoD, the design-build process described in 10 U.S.C. 2862."

10 U.S.C. 2305a - ARMED FORCES Design-build selection procedures - "(a) AUTHORIZATION.—Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the twophase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection ( B) of this section that the procedures are appropriate for use."

41 U.S.C. 253m - PUBLIC CONTRACTS Design-build selection procedures - "(a) AUTHORIZATION.—Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the twophase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection ( B) of this section that the procedures are appropriate for use.""

10 U.S.C. 2862 - ARMED FORCES Turn-key selection procedures - "(a) AUTHORITY TO USE.—The Secretary concerned may use one-step turn-key selection procedures for the purpose of entering into contracts for the construction of authorized military construction projects."

ER 1180-1-9 DESIGN BUILD CONTRACTING - See paragraphs 8(a), 8©, 8(e).

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For my opinion, I don't think 8(a) is "another acquisition procedure authorized by law" as contemplated by FAR 36.104( a ). 8( a ) isn't an acquisition procedure at all; rather, it is a preference program.

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I'm curious what's y'all's take (Joel in particular) on going 8(a) sole source for DESIGN-BUILD? There's some debate amongst KO's in my contracting shop & legal counsel about whether the Small Business Act (section 8(a) in particular) qualifies as "another acquisition approach authorized by law" as referenced at FAR 36.104, 10USC 2305a, 41USC 253m, and 10 USC 2862 (all linked below). The USACE has an ER 1180-1-9 Design Build Contracting that states that competition and two phase is required as well, but it doesn't address the "another acquisition method authorized by law" question either so it's not bringing any clear resolution to the table. Thanks in advance!

*********************************************************************************************************

FAR 36.104(a) [Construction] Methods of Contracting - "(a) Unless the traditional acquisition approach of design-bid-build established under the Brooks Architect-Engineers Act (40 U.S.C. 1101 et seq.) or another acquisition procedure authorized by law is used, the contracting officer shall use the two-phase selection procedures authorized by 10 U.S.C. 2305a or 41 U.S.C. 253m when entering into a contract for the design and construction of a public building, facility, or work, if the contracting officer makes a determination that the procedures are appropriate for use (see subpart 36.3). Other acquisition procedures authorized by law include the procedures established in this part and other parts of this chapter and, for DoD, the design-build process described in 10 U.S.C. 2862."

10 U.S.C. 2305a - ARMED FORCES Design-build selection procedures - "(a) AUTHORIZATION.—Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the twophase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (B) of this section that the procedures are appropriate for use."

41 U.S.C. 253m - PUBLIC CONTRACTS Design-build selection procedures - "(a) AUTHORIZATION.—Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the twophase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (B) of this section that the procedures are appropriate for use.""

10 U.S.C. 2862 - ARMED FORCES Turn-key selection procedures - "(a) AUTHORITY TO USE.—The Secretary concerned may use one-step turn-key selection procedures for the purpose of entering into contracts for the construction of authorized military construction projects."

ER 1180-1-9 DESIGN BUILD CONTRACTING - See paragraphs 8(a), 8©, 8(e).

*********************************************************************************************************

I have stated in other threads that the design-build statutes that you referenced are specific exceptions to the Brooks Architectural-Engineer Act procedures for procuring A-E design services and that they are all competitive methods. The USACE doesn't allow sole source 8 (a) contracts for A-E services because it deviates from the Brooks Act competitive procedures. There is an excellent discussion of the history and evolution of design-bid-build, a-e contracting and design-build that should lead one to understand that the authorized D-b methods all require competition. See US Court of Fed claims no 00207-c , March 24 2005 Flour enterprises vs US , especially beginning at page 25. Sorry - my battery is low....

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I apprciate your input. That CofC case does provide good historical context of the project delivery methods in federal procurement. The DAU "professor" seems to agree with the conclusion as well (https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=42&cgiQuestionID=120016).

However, it seems the rationale winning more traction is that sole source awards IAW FAR Subpart 19.8 are an appropriate design-build construction contracting method so long as the qualifications of the A-E involved get considered in selecting the appropriate 8(a) firm. Hence a KO may make sole source DB construction contract awards up to $4M--or even $20M, pursuant to FAR 19.805-1(b )(2) and FAR 6.302-5(b )(4).

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jdm843,

I'm intrigued. How does a government agency consider the qualifications of an 8(a) A-E firm in the sole-source acquisitions you are describing? Is there an evaluation board involved (see FAR 36.602-3)?

I think reliance on FAR Parts 6 and 19 is misplaced. I think reliance has to be on FAR 36.104(a). The beginning of FAR 36.104(a) allows for "another acquisition procedure authorized by law" but the end of that paragraph tells us what the "[o]ther acquisition procedures by law" are, and they don't seem reach to 8(a) sole-source.

But if your agency is doing design-build 8(a) sole-source, this means there is no FedBizOpps pre-award synopsis, so no one in the public is aware, so no one can complain to question the propriety of the sole-source award for design-build services.

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I think someone is shopping for answers in different forums. DAU's ask-a-professor has the question today, with an answer--

If you have a qualified source you may do this as a sole source 8(a) set-aside if it is within the dollar threshold of $4M. As you know, FAR 36.104 states, "Unless the traditional acquisition approach of design-bid-build established under the Brooks Architect-Engineers Act (40 U.S.C. 1101 et seq.) or another acquisition procedure authorized by law is used, the contracting officer shall use the two-phase selection procedures..." You would not use the sole source 8(a) procedures with the design build (FAR 36.3 procedures) because you only have one source that would be designing and building your requirement and design-build is used when you anticipate receiving 3 or more offerors.

I cannot understand this answer -- the first sentence says 8(a) sole-source can be used if under $4 Million. The second sentence says not to use 8(a) sole source.

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That was me both here and at AAP. I understood the AAP response to to mean that the "this" of "you may do this" in the first sentence refers to pursuing an 8(a) sole source award in general--to do so you must have a qualified source. However the second sentence is more to the point pertaining to this specific scenario (DB construction implemented via FAR Subpart 36.3).

You have good questions about how one would evaluate the AE qualifications in a sole source DB solicitation. I'm intrigued as well. It'll most likely go on until instruction not to, direct and in no uncertain terms, is provided from above.

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I did an internet search for "design-build 8(a) sole-source" and all sorts of hits came up, including some fbo postings -- it is definitely happening...

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If the question is whether a CO can use 8(a) sole source procedures to award an architect-engineer or two-phase design-build contract, I think the answer is yes for the following reasons:

1. I have been unable to find anything anywhere saying that it cannot be done.

2. FAR 19.800(a) says SBA is authorized to enter into "all types of contracts" with agencies under the 8(a) program.

3. The decisions of the courts and boards of contract appeals include cases in which 8(a) contracts were awarded for architect-engineer services without mentioning any competition for the award. See e.g., IMS Engineers-Architects, P.C., v. U.S., 92 Fed. Cl. 52 (2010) and Osborn Engineering Co., DOTCAB 2165, 90-2 BCA ¶ 22749.

The 8(a) program is not mandatory, so this may be a matter of local policy. The Corps of Engineers EFARS 36.602 (S-101) says sole source procedures cannot be use for A-E services, but I don't know if what I read is current and I don't know on what it is based. I have found nothing like it in any other FAR supplement.

So unless somebody comes up with something very specific, I see no reason why a CO can't offer an A-E or design-build requirement to the SBA for an 8(a) sole source award. I wouldn't accept a lawyer's say-so based on his or her own statutory analysis. That would not be authoritative enough for me.

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So I have purposely avoided this thread as my experience is based on efforts many years ago but as the discussion progresses there are a few points that need to be made, some in fact are supported by Vern’s latest post. So not considering any agencies internal policy please consider the following.

First when determining whether to set aside a procurement for 8(a) an agency can ask the local district to provide appropriate firms for the project or how far the competition for an 8(a) competitive must stretch. If the local District can not provide adequate firms for a sole source to the agencies liking the agency can ask for more. Remember the first step in doing an 8(a) is market research of the specific firms in the 8(a) Program. Yes SBA can force a match but that situation is truly rare in my experience.

Now consider this.

A&E – The local SBA District only has one A&E firm. So the agency says I need to see SF-330’s from at least X firms, or more firms without a number, please. The agency then says after looking at all provided I like this one firm, I would like to attempt to negotiate with them or forget it we (the agency) is not going 8(a). Keeping in mind that both the agency and SBA have worked together to get a suitable sampling of A&E firms in the 8(a) Program is this not commensurate with Brooks Act?

PS - And please do not call it competition as in 8(a) competition that is something entirely different as defined by FAR and the 13 CFR 124.

Design Build – By my read of the FAR design build is construction. As such does not 13 CFR 124.503 apply?

My conclusions – I acknowledge the expertise at any one SBA office is variable but if I had a A&E contract need or a design build contract need I would find a SBA employee well versed in the agencies regulations and policies to pursue the project as an 8(a) if so inclined.

Also if one feels like reading in detail to understand all the matters related to SBA’s administration of the 8(a) program they should go here and pull the document up. It won’t unlock all the answers but it will givea detailed idea of what SBA does. Notice no discussion of A-E but there is discussion regarding construction.

http://www.sba.gov/node/11513

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If the question is whether a CO can use 8(a) sole source procedures to award an architect-engineer or two-phase design-build contract, I think the answer is yes for the following reasons:

1. I have been unable to find anything anywhere saying that it cannot be done..."

So unless somebody comes up with something very specific, I see no reason why a CO can't offer an A-E or design-build requirement to the SBA for an 8(a) sole source award. I wouldn't accept a lawyer's say-so based on his or her own statutory analysis. That would not be authoritative enough for me."

1. I think that posts number 3 and 4 above say that an 8(a) award for an A-E contract must follow the competitive procedures of the Brooks Act but the competition may be limited to 8(a) firms.

2. . By law and by definition, a "two-phase design-build contract" involves competition in both phases.

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I apprciate your input. That CofC case does provide good historical context of the project delivery methods in federal procurement. The DAU "professor" seems to agree with the conclusion as well (https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=42&cgiQuestionID=120016).

However, it seems the rationale winning more traction is that sole source awards IAW FAR Subpart 19.8 are an appropriate design-build construction contracting method so long as the qualifications of the A-E involved get considered in selecting the appropriate 8(a) firm. Hence a KO may make sole source DB construction contract awards up to $4M--or even $20M, pursuant to FAR 19.805-1(b )(2) and FAR 6.302-5(b )(4).

jdm843, how would you go about negotiating the sole source design-build contract? What would be the process used to develop the contractor's technical and price proposal and to negotiate a contract? This assumes that you are interested in the qualifications of the design-build team. For example, would the government provide design-criteria or a partial design? Would you have the design-build team prepare enough design to be able to price the proposal? Would you pay the D-B team to first perform some design work in order to price the construction?

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I appreciate all the input!

Vern, since you brought it up: the EFARS is obsolete--in 2013 it was replaced by the USACE Acquistion Instruction (UAI). As of the 2014 update the language you referenced that was at EFARS 36.602 (S-101) is gone. However, there are two other pertinent USACE policies: 1) it is mandatory to follow EP 715-1-7 A-E Contracting in USACE when procuring A-E services in the USACE--see Chapter 3, ¶3-15(c ) on page 3-14 which states specifically that a competitive 8(a) procurement for A-E services is permissible but a sole source 8(a) procurement is not. 2) Design-Build Construction is subject to ER 1180-1-9 Design-Build Contracting--see paragraphs 8(a), 8(c ), 8(e). Although neither's scope extends beyond the USACE, both of these local policies, for me, are logically sound, and contain a fair amount of non-USACE regulatory & statutory references on which they are based.

Joel, I agree that DB should be two phase, competitive. In my observation typically the 8(a) sole source DB RFP's go out for bid with the design criteria specified or sometimes with a 35% design--the DB contractor takes it from there to price their proposal. I would hope the technical qualifications of the DB team get evaluated, not just the price.

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I believe the USACE has not read or thought about the 8(a) process correctly...

A&E

1. As already acknowledged an A&E may be set aside for 8(a).

2. Under an 8(a) set aside selection need follow the procedures of the FAR 36.602-3/4 with the process to follow the general direction of the HCA which in the case of 8(a) is the SBA

3. SBA provides X number of SF-330’s for the agency to perform the selection process.

4. In following the above general process I have used competitive procedures but I have not done a “competitive 8(a)” as the process for such is defined in 19.805 therefore I have done a “sole source” 8(a) procurement.

Ref – 13 CFR 124.503(e) which states –

“(e) Formal technical evaluations. Except for requirements for architectural and engineering services, SBA will not authorize formal technical evaluations for sole source 8(a) requirements. A procuring activity:

(1) Must request that a procurement be a competitive 8(a) award if it requires formal technical evaluations of more than one Participant for a requirement below the applicable competitive threshold amount; and

(2) May conduct informal assessments of several Participants' capabilities to perform a specific requirement, so long as the statement of work for the requirement is not released to any of the Participants being assessed.”

DESIGN-BUILD(D- B)

1. As already acknowledged the DB may be set aside for 8(a).

2. FAR 36.301 provides that two phase only need be used when the CO(remember SBA is the CO) determines appropriate, three or more proposals are anticipated, etc.

3. Agency reviews portfolio of SBA district(s) as appropriate for a qualified firm and offers the project to 8(a) in the name of the firm.

4. Agency provides a single solicitation to the firm and asks for in Phase 1 the information as appropriate per FAR 36.303-1 and performs evaluation to the extent necessary to determine that the firm is still qualified in the eyes of the agency to perform the work. If yes continue to #5 if no then simply ask the 8(a) program to release the project or go back and try and find another firm within the 8(a) program.

5. Phase II (FAR 36.303-2) negotiate a price with the firm.

6. In the following the above general process I have performed an 8(a) sole source two phase DB. If I want to do a “competitive 8(a)” DB which is below the applicable threshold for an "competitive 8(a)" I can ask SBA to let me do so but they can decline, however the above process at #3 is permissible and is "sole source" as I would not provide a specific scope of work until I have picked the firm that I believe I will achieve success with.

Ref – 13 CFR 124.503(e) (see wording above).

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jdm843,

I'm intrigued. How does a government agency consider the qualifications of an 8(a) A-E firm in the sole-source acquisitions you are describing? Is there an evaluation board involved (see FAR 36.602-3)?

I think reliance on FAR Parts 6 and 19 is misplaced. I think reliance has to be on FAR 36.104(a). The beginning of FAR 36.104(a) allows for "another acquisition procedure authorized by law" but the end of that paragraph tells us what the "[o]ther acquisition procedures by law" are, and they don't seem reach to 8(a) sole-source.

But if your agency is doing design-build 8(a) sole-source, this means there is no FedBizOpps pre-award synopsis, so no one in the public is aware, so no one can complain to question the propriety of the sole-source award for design-build services.

ji2874, at the time that the One Step -Turn Key method at 10 USC 2862 was developed in circa 1985, the Air Force had done design-build and the NAVFAC was doing deign-build - both using the Two-Step Sealed - Bdding method under FAR 14-5. In addition, I'm pretty sure that the USACE was using a one-step (competitive) design-build method for new Military Family Housing projects prior to the One-Step legislation. One of my D-B teaching associates was on the Norfolk District National Center of Expertise for MFH at that time, He just retired or I would ask him to verify that.

The late Laura Meeker, esq. was the DAR committee chairperson for Part 36 on the FAR committee that was writing the FAR 36.3, Two Phase D-B procedures. She told me and I believe it is in some notes somewhere (that she or the current DAR council sent me) that the NAVFAC wanted the flexibility to continue to use the 2-Step method.

Laura also represented USACE on consultation with Industry and the Congressional committee (or subcommittee) during the drafting of the 2 Phase D-B legislation in the 1995-1996 time frame. The newly organized Design-Build Institute of America and others were clamoring for the 2 phase method to be the only authorized acquisition method for federal design-build both during the legislative and subsequent FAR implementation periods. But I know that NAVFAC and USACE were resistant to that during the legislative period. They wanted to have some flexibility. So Congress included the language that retained other authorized D-B procedures. The FAR committee addressed the industry comments during the rule making period by stating that the scope of the FAR Case was only to implement the Clinger-Cohen, 2 Phase legislation, which maintained the authorization for the One-Step Turn-Key method.

I never saw any mention in comments concerning the legislation or the rule making that mentioned sole-source set-asides for D-B.

There is a long standing rule in FAR 36.209 that prohibits "...[awarding] a contract for the construction of a project...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." The USACE has used this rule to disqualify A-Es' participation on D-B teams (even as a sub) if they participated in the development of the design-criteria or a partial design for the D-B project. That is why I asked above what type of process that jdm843 would use to define the design or design criteria sufficiently to develop a price for the construction. Not only are there issues concerning competitive advantage but there can be other conflict of interest, liability issues, contract interpretation issues, etc. where the A-E firm develops the criteria for the pre-construction pricing or prepares a partial or a full design in phases before negotiating the construction cost..

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I believe the USACE has not read or thought about the 8(a) process correctly...

A&E

1. As already acknowledged an A&E may be set aside for 8(a).

2. Under an 8(a) set aside selection need follow the procedures of the FAR 36.602-3/4 with the process to follow the general direction of the HCA which in the case of 8(a) is the SBA

3. SBA provides X number of SF-330’s for the agency to perform the selection process.

4. In following the above general process I have used competitive procedures but I have not done a “competitive 8(a)” as the process for such is defined in 19.805 therefore I have done a “sole source” 8(a) procurement.

Ref – 13 CFR 124.503(e) which states –

“(e) Formal technical evaluations. Except for requirements for architectural and engineering services, SBA will not authorize formal technical evaluations for sole source 8(a) requirements. A procuring activity:

(1) Must request that a procurement be a competitive 8(a) award if it requires formal technical evaluations of more than one Participant for a requirement below the applicable competitive threshold amount; and

(2) May conduct informal assessments of several Participants' capabilities to perform a specific requirement, so long as the statement of work for the requirement is not released to any of the Participants being assessed.”

DESIGN-BUILD(D- B)

1. As already acknowledged the DB may be set aside for 8(a).

2. FAR 36.301 provides that two phase only need be used when the CO(remember SBA is the CO) determines appropriate, three or more proposals are anticipated, etc.

3. Agency reviews portfolio of SBA district(s) as appropriate for a qualified firm and offers the project to 8(a) in the name of the firm.

4. Agency provides a single solicitation to the firm and asks for in Phase 1 the information as appropriate per FAR 36.303-1 and performs evaluation to the extent necessary to determine that the firm is still qualified in the eyes of the agency to perform the work. If yes continue to #5 if no then simply ask the 8(a) program to release the project or go back and try and find another firm within the 8(a) program.

5. Phase II (FAR 36.303-2) negotiate a price with the firm.

6. In the following the above general process I have performed an 8(a) sole source two phase DB. If I want to do a “competitive 8(a)” DB which is below the applicable threshold for an "competitive 8(a)" I can ask SBA to let me do so but they can decline, however the above process at #3 is permissible and is "sole source" as I would not provide a specific scope of work until I have picked the firm that I believe I will achieve success with.

Ref – 13 CFR 124.503(e) (see wording above).

Carl, you keep saying that 8(a) set-asides are authorized for D-B. I agree - as long as they are competitive set-asides. Competition includes price competition.

By the way, prior to the FAR 36.3, 2 phase process, agencies other than DoD and a few others were lamenting that they had no authorization to use D-B. There were very old threads in the WIFCON forum that discussed this. I think that I was among those arguing that agencies could use some type of competitive D-B construction contracts even if they couldn't use Title 10 (10 USC 2862). I think that the Judge in the Fluor Enterprises COFC case that I cited above agreed with those that said they had no D-B authority before the 2 phase phase legislation.

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Again -- I have found nothing that says that 8(a) sole source awards for A-E or design-build construction are impermissible, except for a sentence in the Corps of Engineers FAR Supplement, a regulation that as far as I'm concerned is nothing more than a policy statement by a single agency and that does not have the force and effect of law. Moreover, the Corps website states that the EFARS has been rescinded. http://www.usace.army.mil/BusinessWithUs/Contracting/Resources.aspx

Yes, A-E and two-phase design-build are competitive procedures. Competitive procedures are required for most acquisitions. But the 8(a) program permits agencies to reserve requirements of $6.5 million or less for sole source acquisition. I have looked at as many treatises on the 8(a) program as I could get my hands on yesterday afternoon and found nothing to support the assertion that 8(a) sole source awards of A-E and design-build are impermissible. Moreover, FBO contains many announcements of sole source A-E awards. See e.g., https://www.fbo.gov/index?s=opportunity&mode=form&id=40cdb31fb4134d6c516dd5a5b9b5816d&tab=core&_cview=1.

As a CO I would not accept arguments to the contrary that are based on statutory analysis made by some contracting office attorney. I would want to see something in statute, in governmentwide regulation, or in case law that says that 8(a) sole source awards are impermissible.

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1. I think that posts number 3 and 4 above say that an 8(a) award for an A-E contract must follow the competitive procedures of the Brooks Act but the competition may be limited to 8(a) firms.

2. . By law and by definition, a "two-phase design-build contract" involves competition in both phases.

jdm, you said:

Joel, I agree that DB should be two phase, competitive. In my observation typically the 8(a) sole source DB RFP's go out for bid with the design criteria specified or sometimes with a 35% design--the DB contractor takes it from there to price their proposal. I would hope the technical qualifications of the DB team get evaluated, not just the price.

jdm, My point number two above only referred to Vern's statement concerning a sole source procedure to award a "two-phase design-build contract".

I generally agree with you that we should use the 2 phase method for D-B in one way or another. As you know, the USACE is also using task orders under multiple award task order contracts to award design-build projects. As a member of the team that wrote the USACE policy in the recent ER 1180-1-7 update, we required the base award of the MATOC pools in those contracts to use the 2 phase method for practical reasons and to comply with the 2 phase legislation. Task orders use a one step process after the initial selection of the pool members followed the 2 phase process.

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Keep in mind that an agency must get approval from the SBA to conduct a competition among 8(a) firms in acquisitions below the competitive threshold. See FAR 19.805-1(d). That includes competitive A-E and design-build acquisitions.

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jdm, My point number two above only referred to Vern's statement concerning a sole source procedure to award a "two-phase design-build contract".

Perhaps I was unclear--I meant that I don't see how a sole source procurement is permissible. HOWEVER there are different interpretations of all this (as one can easily see in this thread) and I've observed 8(a) sole source procedures used for (one step) DB construction contracts--in such cases the DB construction RFP essentially consists of stated design criteria or includes up to a 35% design (usually developed by a separate AE contract). The 8(a) DB construction contractor proposes price using the criteria / 35% design... and I would hope the technical evaluation considers the A-E qualifications!

I generally agree with you that we should use the 2 phase method for D-B in one way or another. As you know, the USACE is also using task orders under multiple award task order contracts to award design-build projects. As a member of the team that wrote the USACE policy in the recent ER 1180-1-7 update, we required the base award of the MATOC pools in those contracts to use the 2 phase method for practical reasons and to comply with the 2 phase legislation. Task orders use a one step process after the initial selection of the pool members followed the 2 phase process.

Absolutely agree on issuing one step task orders under Multiple Award IDIQ that was stood up via the two step process. I've even advocated evaluating price only for task order RFPs when the design criteria is simple enough and the Gov't would gain no added benefit in evaluating the technical approach any further than what was already done during the IDIQ evaluations.

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Again -- I have found nothing that says that 8(a) sole source awards for A-E or design-build construction are impermissible, except for a sentence in the Corps of Engineers FAR Supplement, a regulation that as far as I'm concerned is nothing more than a policy statement by a single agency and that does not have the force and effect of law. Moreover, the Corps website states that the EFARS has been rescinded. http://www.usace.army.mil/BusinessWithUs/Contracting/Resources.aspx

Yes, A-E and two-phase design-build are competitive procedures. Competitive procedures are required for most acquisitions. But the 8(a) program permits agencies to reserve requirements of $6.5 million or less for sole source acquisition. I have looked at as many treatises on the 8(a) program as I could get my hands on yesterday afternoon and found nothing to support the assertion that 8(a) sole source awards of A-E and design-build are impermissible. Moreover, FBO contains many announcements of sole source A-E awards. See e.g., https://www.fbo.gov/index?s=opportunity&mode=form&id=40cdb31fb4134d6c516dd5a5b9b5816d&tab=core&_cview=1.

As a CO I would not accept arguments to the contrary that are based on statutory analysis made by some contracting office attorney. I would want to see something in statute, in governmentwide regulation, or in case law that says that 8(a) sole source awards are impermissible.

Vern, I'm not sure what you are looking for that says that 8(a) sole source awards for A-E contracts are impermissible. The following 2 GAO decisions have been mentioned at least twice in this thread.

In the Decison that I referred to above (B-193874, OCTOBER 11, 1979, 59 COMP.GEN. 20) the GAO stated:

"IN THIS RESPECT, THERE IS NO EVIDENCE, EITHER IN THE SMALL BUSINESS ACT ITSELF OR IN THE LEGISLATIVE HISTORY THAT THE CONGRESS INTENDED TO ABROGATE THE BROOKS BILL SELECTION CRITERIA IN THE PROCUREMENT OF PROFESSIONAL A&E SERVICES UNDER THE 8(A) PROGRAM. THUS, EXCEPT IN THOSE INSTANCES WHERE THE CONGRESS HAS CLEARLY MANDATED A CONTRARY RESULT, E.G., BOYER, BISKUP, BONGE, NOLL, AND SCOTT & ASSOCIATES, INC., 55 COMP.GEN. 765(1976), 76-1 CPD 110 (CASE INVOLVING THE AWARD OF AN A&E CONTRACT WITHOUT REGARD TO THE BROOKS BILL UNDER AUTHORITY OF THE INDIAN SELF DETERMINATION AND EDUCATION ASSISTANCE ACT, 25 U.S.C. 450(1976)), THE AWARD OF A CONTRACT FOR A&E SERVICES MUST, IN OUR VIEW, BE GOVERNED BY THE POLICY EXPRESSED IN THE BROOKS BILL EVEN THOUGH THE ZONE OF COMPETITION ELIGIBLE FOR THE AWARD MAY BE LEGALLY LIMITED BY OTHER CONSIDERATIONS."

See also this GAO Decision concerning the set-asides for VOSB concerns that I referred to above. See page 4 of Powerhouse Design Architects & Engineers, Ltd. B-403174; B-403175; B-403176; B-403177; B-403633; B-403647; B-403648;B-403649 Date:October 7, 2010 at http://www.wifcon.com/cgen/403174.pdf

3. Applicability to Architect-Engineering (A/E) Services Comment: Several commenters asked whether proposed subpart 819.70 applies to the award of sole source VOSB and SDVOSB contracts for A/E contracts. Response: This rule does not apply to the procedures to procure A/Eservices. Pursuant to the Brooks Act (Pub. L. 92-582),A/E services cannot be awarded on a sole source basis. The Brooks Act requires Federal agencies to publicly announce all requirements for A/Eservices, and to negotiate contracts for A/E services on the basis of demonstrated competence and qualifications for the type of professional services required at fair and reasonable prices.The sole source authority in 38 U.S.C. [§] 8127 does not override the Brooks Act because under general principles of statutory interpretation the specific governs over general language.

This decision specifically addressed VOSB concerns. There may be others but I'm not a paralegal. An argument used in this thread to support the use of sole source 8(a) contracts for A-E services concerned the general 8(a) language that "FAR 19.800(a) says SBA is authorized to enter into "all types of contracts" with agencies under the 8(a) program." Does that general language override the specific Brooks Act requirements for Federal agencies to publicly announce all requirements for A/Eservices, and to negotiate contracts for A/E services on the basis of demonstrated competence and qualifications for the type of professional services required at fair and reasonable prices? The GAO said: "Pursuant to the Brooks Act (Pub. L. 92-582),A/E services cannot be awarded on a sole source basis."

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