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AE Brooks Act - rule of 3 Most Highly Qualified


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Brooks Act selection procedures require the agency head to "conduct discussions with at least 3 firms to consider anticipated concepts and compare alternative methods for furnishing services" and that "the agency head shall select, in order of preference, at least 3 firms that the agency head considers most highly qualified to provide the services required."

I work for the Corps of Engineers and follow EP 715-1-7 for Brooks Act procurements.  Para 3-10(c) requires "At least three most highly qualified firms must be recommended if a single contract will be awarded."  There is a footnote on this sentence that also reads "If the selection board cannot recommend at least three most highly qualified firms as required by the Brooks Act, then the scope of the contract should be revised to increase competition and again synopsize the contract."

I have a procurement where we intend to issue one contract.  Generally speaking, the scope for this project is climbing inspections and analysis of the navigation lock gates within our District.  This requires very specialized skills and very specific training/qualifications.   I only received one SF330 submission in response to the synopsis.  The evaluation board determined the submission to be highly qualified - but obvioulsy - it is not possible to recommend 3 if you only receive one.  I am not certain the team can revise the scope without degrading the project's technical and safety requirements - although I do have them working to see if revisions can be made.  In the mean time, I am hoping any AE and/or USACE folks out there can share some insight.  Suppose it is accurate that the government cannot revise the SOW without compromising project requirements.  How do I overcome this requirement for 3 recommended firms?  I am not seeing a waiver/D&F/J&A route within USACE's agency procedures.  If there is no way to revise the scope and no apparent ability to 'waive' this requirement, does this mean the government has a requirement that it simply has no mechanism to fulfill given the circumstances?

I'm hopeful that this would be an instance where broad discretion could be utilized to overcome -- where we can document the file to explain the project, confirm the scope represents the minimum requirements, and demonstrate how, despite only receiving one submission, that the firm is determined highly qualified and should be considered for negotiations.  Was thinking approval from my Chief of Contracting with Counsel's review and concurrence would be appropriate.

 

Thoughts?

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Per FAR 2.“Should” means an expected course of action or policy that is to be followed unless inappropriate. Paragraph 1.b of the EP discusses documenting the contract file with any deviation from procedures in the EP as long as they don't violate the procurement regulations.  

What does your lawyer say?

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HD2002:

Perhaps you can look at this another way. Selection criteria requires identifying and conduct discussions with the three of the "most" highly qualified.

I don't think that is saying all three will or have to be deemed to be qualified once identification, discussions, evaluation, selection, and negotiations are finished.

For example -- Through the process of discussions, it may be confirmed or otherwise determined that two of the most highly qualified are deemed unqualified or inadequate (see FAR 36.602-4[c]).

If not, you always can request a FAR deviation as outlined in FAR Subpart 1.4.

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Jamaal, per the EP and 36.602-1 (c ), You don't negotiate with the three most highly rated firms. You interview them (hold discussions) before making your final selection and ranking. Then you negotiate with your top ranked firm. If you can't successfully negotiate a fair and reasonable price and other terms you move on to the next firm. 

I imagine that there are other actions one could take to determine if there are other firms both capable and interested in fulfilling your requirement without simply reducing or dumbing down the  scope of work. You might want to validate the SOW to ensure that it isn't unnecessarily restrictive or unfairly favoring a single firm. However, this is a qualifications based selection process. You would like to have two backups available to keep the top selected firm honest and aware that you have other options if it is unreasonable.   

Edited by joel hoffman
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The selection board holds discussions.  

The selecting official rank orders the firms.  

Then, the contracting officer negotiates with the first-ranked firm -- if successful, the process stops -- if not, the contracting officer negotiates with the second.  

So the evaluation board does discussions without the contracting officer's supervision, and the selecting official doesn't actually select the awardee.  

It's beautiful process.  FAR Subpart 15.3 is not applicable.  

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5 hours ago, HoosierDaddy2002 said:

Brooks Act selection procedures require the agency head to "conduct discussions with at least 3 firms to consider anticipated concepts and compare alternative methods for furnishing services" and that "the agency head shall select, in order of preference, at least 3 firms that the agency head considers most highly qualified to provide the services required."

I work for the Corps of Engineers and follow EP 715-1-7 for Brooks Act procurements.  Para 3-10(c) requires "At least three most highly qualified firms must be recommended if a single contract will be awarded."  There is a footnote on this sentence that also reads "If the selection board cannot recommend at least three most highly qualified firms as required by the Brooks Act, then the scope of the contract should be revised to increase competition and again synopsize the contract."

I have a procurement where we intend to issue one contract.  Generally speaking, the scope for this project is climbing inspections and analysis of the navigation lock gates within our District.  This requires very specialized skills and very specific training/qualifications.   I only received one SF330 submission in response to the synopsis.  The evaluation board determined the submission to be highly qualified - but obvioulsy - it is not possible to recommend 3 if you only receive one.  I am not certain the team can revise the scope without degrading the project's technical and safety requirements - although I do have them working to see if revisions can be made.  In the mean time, I am hoping any AE and/or USACE folks out there can share some insight.  Suppose it is accurate that the government cannot revise the SOW without compromising project requirements.  How do I overcome this requirement for 3 recommended firms?  I am not seeing a waiver/D&F/J&A route within USACE's agency procedures.  If there is no way to revise the scope and no apparent ability to 'waive' this requirement, does this mean the government has a requirement that it simply has no mechanism to fulfill given the circumstances?

I'm hopeful that this would be an instance where broad discretion could be utilized to overcome -- where we can document the file to explain the project, confirm the scope represents the minimum requirements, and demonstrate how, despite only receiving one submission, that the firm is determined highly qualified and should be considered for negotiations.  Was thinking approval from my Chief of Contracting with Counsel's review and concurrence would be appropriate.

 

Thoughts?

Hoosier, you have resources within the Corps of Engineers to answer your question.  There is an A-E contracting proponent(s) at HQUSACE who oversee(s) the A-E contracting processes.  I don't know who the current proponent or proponents are but the EP identifies the office.  I would check with them first then verify through the PARC.chain of command.

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Hello, Hoosier!

If you receive an answer from them please let us know.  I've had a similar situation, but was operating under a state law without the three-firm requirement.  The purpose of the law was to ensure public safety by not low-bidding engineering work, so it seems odd that the application of the law would lead to the relaxation of safety standards.

Separate question: Does your agency have a file cabinet of statements of qualifications handy?:

Quote

"REQUESTS FOR DATA ON ARCHITECTURAL AND ENGINEERING SERVICES "Sec.903. In the procurement of architectural and engineering services, the agency head shall encourage firms engaged in the lawful practice of their profession to submit annually a statement of qualifications and performance data. The agency head, for each proposed project, shall evaluate current statements of qualifications and performance data on file with the agency, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with no less than three firms regarding anticipated concepts and the relative utility of alternative methods of approach for furnishing the required services and then shall select therefrom, in order of preference, based upon criteria established and published by him, no less than three of the firms deemed to be the most highly qualified to provide the services required.

We have no such cabinet, and I'm curious if we should.

 

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Thanks, Ji!

Yes, that looks like the FAR section corresponding to that quote. 

The three-firm rule makes good sense in the file-cabinet context, in that it can be complied with easily.  However, we don't operate that way, and it sounds like the OP doesn't either (though he will correct me if I'm wrong). 

We issue a synopsis/announcement/RFQ asking for qualifications and are therefore dependent upon the kindness of strangers to provide at least three responses.

I suppose my question is: If we are soliciting openly for an A-E requirement and not going to the file cabinet described in Sec. 903/FAR 36.603, does the three firm rule apply? 

I'm putting this question out there in hopes that HoosierDaddy will include it in his list of questions to Corps of Engineers chain of command.  Or . . . Joel probably knows the answer :rolleyes:

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Guest Vern Edwards
On June 22, 2016 at 3:08 PM, ji20874 said:

The selection board holds discussions.  

The selecting official rank orders the firms.

That's not strictly correct. Both the board and the selection authority rank-order the firms. The board rank-orders the firms by preference when making a recommendation. The selection authority then reviews the board's rank-order recommendation and makes a rank order listing of his or her own. If the selection authority disagrees with the board's ranking, he or she must document the record to explain his or her preference.

See FAR 36.602-3(d) and 36.602-4(b).

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apsofacto,

Yes, I think the three-firm rule applies, regardless of whether you're reviewing SF330 Part II's from your file cabinet (FAR 36.603) or Part I's in response to a public notice particular to the instant effort.  FAR 36.602-3( c ):  "Hold discussions with at least three of the most highly qualified firms..."

Vern,

You're right.  My text was brief, but I wasn't trying to describe the whole process -- my context was to paintbrush a few differences between the AE process and the "normal" process for the benefit of our readers.  The evaluation board (or the board chairperson in some cases) holds discussions (without the contracting officer's participation*) and rank orders at least three firms that it considers as the most highly qualified (without the contracting officer's participation), and then the selecting official makes the selection (without the contracting officer's participation).  But the selecting official's selection is not a selection of the successful awardee; rather, it is a listing of the most highly qualified firms in a ranked order that may differ from the evaluation board's ranking -- and all firms on the list are considered "selected firms" even though only one of them will get the contract.  However, anyone wanting to actually do an AE acquisition will want to carefully read FAR Subpart 36.6.

*in writing "without the contracting officer's participation," I mean that the FAR does not require the contracting officer's participation in these steps.  An agency with mature processes can handle these tasks without contracting officer oversight, but an agency without mature processes might benefit from seeking contracting officer guidance and insights.

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