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Price Proposals for A-E IDIQ Contracts


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My Agency has issued multiple A-E IDIQ contracts. This process was done in compliance with the Brooks Act. After the IDIQ contracts are awarded, at the task order level, the Agency issues an RFP to the A-E IDIQ contract holders requesting both the technical proposal and price proposal on each project.  The CO has processes in place to ensure the cost information that is collected is not considered by, seen by, or accessible to the evaluating board that is ranking the Task Order technical proposals based on technical capability.  Once the most highly qualified contractor is determined, only that price proposal is released to the evaluating board.  All other price proposals remain confidential to include omission from the contract file.  Is this task order process non-compliant with the Brooks Act? If so, please cite to the regulation that specifically prohibits the Agency from collecting cost information at the same time as technical information in response to a task order issued to A/E contractors under a multiple-award A/E IDIQ contract.

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Guest Vern Edwards

 

1 hour ago, Rookie1102 said:

After the IDIQ contracts are awarded, at the task order level, the Agency issues an RFP to the A-E IDIQ contract holders requesting both the technical proposal and price proposal on each project.  The CO has processes in place to ensure the cost information that is collected is not considered by, seen by, or accessible to the evaluating board that is ranking the Task Order technical proposals based on technical capability.  Once the most highly qualified contractor is determined, only that price proposal is released to the evaluating board.  All other price proposals remain confidential to include omission from the contract file.  Is this task order process non-compliant with the Brooks Act?

Emphasis added.

Under the Brooks Act, cost or price cannot be a consideration in any A-E selection. For new contract awards, the Act is implemented by FAR Subpart 36.6. However, I do not think that the procedures in FAR Subpart 36.6 apply to the "fair opportunity" process under FAR Subpart 16.5.

I think that the "fair opportunities" procedure that you described in the above quotation complies with the Brooks Act, 40 USC Ch. 11. I see nothing in the statute that prohibits asking for price proposals from all competitors for a task order at the same time as "technical proposals," whatever those contain. (However, as for the "evaluation," you might want to consider whether your agency's procedure complies with 40 USC § 1103(c).) 

 

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1 hour ago, C Culham said:

Vern - Did your response consider FAR subpart 16.505(a)(9)?   

I don’t see why he would have as that applies to “orders placed under multi-agency contracts” (emphasis added below)
 

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(9) In accordance with section 1427(b) of Public Law 108-136 (40 U.S.C. 1103 note), orders placed under multi-agency contracts for services that substantially or to a dominant extent specify performance of architect-engineer services, as defined in 2.101, shall—

   (i) Be awarded using the procedures at Subpart 36.6; and

   (ii) Require the direct supervision of a professional architect or engineer licensed, registered or certified in the State, Federal District, or outlying area, in which the services are to be performed.

Please re-read the first two sentences of the OP’s post and explain why you think we’re dealing with multi-agency contracts.

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16.500 Scope of subpart.

(a) This subpart prescribes policies and procedures for making awards of indefinite-delivery contracts and establishes a preference for making multiple awards of indefinite-quantity contracts.

(b) This subpart does not limit the use of other than competitive procedures authorized by Part 6.

(c) Nothing in this subpart restricts the authority of the General Services Administration (GSA) to enter into schedule, multiple award, or task or delivery order contracts under any other provision of law. Therefore, GSA regulations and the coverage for the Federal Supply Schedule program in subpart 8.4 and Part 38 take precedence over this subpart.

(d) The statutory multiple award preference implemented by this subpart does not apply to architect-engineer contracts subject to the procedures in subpart 36.6. However, agencies are not precluded from making multiple awards for architect-engineer services using the procedures in this subpart, provided the selection of contractors and placement of orders are consistent with subpart 36.6.

 

 

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36.101 Applicability.

(a) Construction and architect-engineer contracts are subject to the requirements in other parts of this regulation, which shall be followed when applicable.

(b) When a requirement in this part is inconsistent with a requirement in another part of this regulation, this Part 36 shall take precedence if the acquisition of construction or architect-engineer services is involved.

 

 

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36.103 Methods of contracting.

(a) ...

(b) Contracting officers shall acquire architect-engineer services by negotiation, and select sources in accordance with applicable law, subpart 36.6, and agency regulations.

 

Emphasis added.

 

EDIT:  40 USC Chapter 11 is part of "applicable law"

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FAR 36.606(b) places the proposal request (i.e. price proposal) in the "negotiation" phase (i.e. after determination of the  most qualified firm). Though FAR 36.606(b) uses the term "ordinarily," so it appears to be far from mandatory.

That being said, I'm not sure how many A-E firms have bench contracts, but you'll be pissing off the bulk of them by having to expend unnecessary efforts and cost to prepare pricing proposals that will never see the light of day. Expect those costs to creep into indirect rates and your agency will start seeing higher prices.

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6.102 Use of competitive procedures.

The competitive procedures available for use in fulfilling the requirement for full and open competition are as follows:

(a) ...

(b) ...

(c) ...

(d) Other competitive procedures.

(1) Selection of sources for architect-engineer contracts in accordance with the provisions of 40 U.S.C. 1102 et seq. is a competitive procedure (see subpart 36.6 for procedures).

 

 

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§1104. Negotiation of contract

(a) In General.—The agency head shall negotiate a contract for architectural and engineering services at compensation which the agency head determines is fair and reasonable to the Federal Government. In determining fair and reasonable compensation, the agency head shall consider the scope, complexity, professional nature, and estimated value of the services to be rendered.

(b) Order of Negotiation.—The agency head shall attempt to negotiate a contract, as provided in subsection (a), with the most highly qualified firm selected under section 1103 of this title. If the agency head is unable to negotiate a satisfactory contract with the firm, the agency head shall formally terminate negotiations and then undertake negotiations with the next most qualified of the selected firms, continuing the process until an agreement is reached. If the agency head is unable to negotiate a satisfactory contract with any of the selected firms, the agency head shall select additional firms in order of their competence and qualification and continue negotiations in accordance with this section until an agreement is reached.

(Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1130.)

 

 

Rookie 1102 didn't go into much detail about the how "the most highly qualified contractor is determined" , who makes the determination and whether or not discussions were conducted with at least three firms.

 

 

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36.602-3 Evaluation board functions.

Under the general direction of the head of the contracting activity, an evaluation board shall perform the following functions:

(a) Review the current data files... 

(b) Evaluate the firms... 

(c) Hold discussions with at least three of the most highly qualified firms regarding concepts and the relative utility of alternative methods of furnishing the required services.

 

 

 

It appears that proposals are provided prior to any evaluation and prior to any discussions - if any.  What does "the evaluating board" do with the initial price proposal from "the most highly qualified contractor"?  

 

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The CO has processes in place to ensure the cost information that is collected is not considered by, seen by, or accessible to the evaluating board that is ranking the Task Order technical proposals based on technical capability.  Once the most highly qualified contractor is determined, only that price proposal is released to the evaluating board. 

The intent of the procedures is to conduct one-on-one price proposal negotiations IAW FAR Part 15. The price proposal and negotiations ought to be based upon a proposal that is consistent with the results of the technical discussions.  

Apparently, the negotiator(s) (?) has/have no access to other proposals, so there is no price competition involved. Of course, other price proposals wouldn't be relevant anyway, because they are based upon the specific design approaches, technical approaches and resources of individual firms.

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 Is this task order process non-compliant with the Brooks Act? If so, please cite to the regulation that specifically prohibits the Agency from collecting cost information at the same time as technical information in response to a task order issued to A/E contractors under a multiple-award A/E IDIQ contract.

There isn't enough information provided concerning if or how 1) technical discussions and 2) price negotiations are conducted to determine compliance with the Brooks Act (specifically, 40 U.S.C. 1102 et seq.) or with FAR  36.6.  It appears though, that price "evaluation", if any, is based upon an initial price proposal.  An initial price proposal would not necessarily be reflective of the results of technical approach discussions.

Therefore,  it is uncertain whether or not technical approach discussions are being conducted.

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13 minutes ago, joel hoffman said:

Rookie 1102 didn't go into much detail about the how "the most highly qualified contractor is determined" , who makes the determination and whether or not discussions were conducted with at least three firms.

We established our 4 A-E IDIQ contracts consistent with the Brooks Act and FAR 36.6.  After those are awarded and we have a requirement to solicit, we send out a letter RFP to the 4 A-E IDIQ contract holders request their technical proposal as volume I and price proposal as volume II.  Upon receipt of the proposals, the technical proposals (volume I) ONLY are submitted to the evaluation board for their review and technical analysis.  After a decision has been made on the technical proposals, the CO then releases, to the evaluation board, the price proposal (volume II) of the most highly qualified contractor and we negotiate as necessary. 

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53 minutes ago, Rookie1102 said:

We established our 4 A-E IDIQ contracts consistent with the Brooks Act and FAR 36.6.  After those are awarded and we have a requirement to solicit, we send out a letter RFP to the 4 A-E IDIQ contract holders request their technical proposal as volume I and price proposal as volume II.  Upon receipt of the proposals, the technical proposals (volume I) ONLY are submitted to the evaluation board for their review and technical analysis.  After a decision has been made on the technical proposals, the CO then releases, to the evaluation board, the price proposal (volume II) of the most highly qualified contractor and we negotiate as necessary. 

Okay.  Then you apparently aren't actually conducting any technical approach discussions with one or more firms to base the "determination" or the price proposal - to be negotiated -  on.

Also, did you mean "...and we negotiate as necessary" in the sense that you negotiate only "if necessary",  rather than "shall" negotiate (per 36.606).

EDIT:  ...and  40 USC 1103 and 1104:

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§1103. Selection procedure

(a) In General.—These procedures apply to the procurement of architectural and engineering services by an agency head.

(b) Annual Statements.—The agency head shall encourage firms to submit annually a statement of qualifications and performance data.

(c) Evaluation.—For each proposed project, the agency head shall evaluate current statements of qualifications and performance data on file with the agency, together with statements submitted by other firms regarding the proposed project. The agency head shall conduct discussions with at least 3 firms to consider anticipated concepts and compare alternative methods for furnishing services.

(d) Selection.—From the firms with which discussions have been conducted, 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. Selection shall be based on criteria established and published by the agency head.

 

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§1104. Negotiation of contract

(a) In General.—The agency head shall negotiate a contract for architectural and engineering services at compensation which the agency head determines is fair and reasonable to the Federal Government. In determining fair and reasonable compensation, the agency head shall consider the scope, complexity, professional nature, and estimated value of the services to be rendered.

(b) Order of Negotiation.—The agency head shall attempt to negotiate a contract, as provided in subsection (a), with the most highly qualified firm selected under section 1103 of this title. If the agency head is unable to negotiate a satisfactory contract with the firm, the agency head shall formally terminate negotiations and then undertake negotiations with the next most qualified of the selected firms, continuing the process until an agreement is reached. If the agency head is unable to negotiate a satisfactory contract with any of the selected firms, the agency head shall select additional firms in order of their competence and qualification and continue negotiations in accordance with this section until an agreement is reached.

 

I think that you are cutting corners and that your procedure is not in compliance with  FAR 36.6 or with 40 U.S.C. 1102 et seq. 

 

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If a technical approach discussion is necessary then yes, we hold discussions on the technical approach. 

In establishing our IDIQ's, we have approved labor rates so the review of the price proposals includes confirming the number of labor hours, labor categories, equipment, etc. is in line with our IGE.  If it is not in line with our IGE then that is when we negotiate. 

I don't see how this is cutting corners.

I would like to like to revert back to my original question.  Is there a violation of the Brooks Act if we request proposals from our A-E IDIQ contract holders but keep them secure until the most highly qualified contractor is determined.  At that point, the most highly qualified contractor's proposal is released and the other price proposals are never released.

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Guest Vern Edwards
5 hours ago, C Culham said:

Vern - Did your response consider FAR subpart 16.505(a)(9)?   

No, Carl, it didn't. Thank you. Sorry I took so long to respond. I'm in a foreign time zone.

@Rookie1102

I've reviewed FAR 36.6, and I don't think that it prohibits asking for price proposals from all, as long as price is not a factor in selection. It's not standard practice, but I don't see anything that says an agency may ask only the selectee for a price proposal or may ask for a price proposal only after a selectee has been identified.

I'm not saying that what your agency is doing is best practice. I don't think it is, and I wouldn't do it. But I don't think it violates either the Brooks Act or any express rule in FAR 36.6.

If anyone disagrees with me, I'm sure you'll hear from them shortly.

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Rookie, what are the range of magnitudes for the task orders and what types of project designs are involved?  When do you establish the project cost limitation and fee limitations, etc.?

Your original question was "Is this task order process non-compliant with the Brooks Act?"  You didn't limit your question to only requesting price proposals before determining which is the most highly qualified firm.

 

 

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Guest Vern Edwards

Rookie1102:

Please clarify if you meant your question to be about asking for price proposals from all competitors, or if it was more broad than that.

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8 minutes ago, Vern Edwards said:

Please clarify if you meant your question to be about asking for price proposals from all competitors, or if it was more broad than that.

Yes, I was simply asking about requesting price proposals from all competitors and nothing else. 

Thank you all for your input.

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In our agency we require the fair opportunity selection process to be based on qualifications only (FAR 16.500(d) and 16.505(a)(9)).  After selection, price proposal is requested.  Doing so saves the other contractors from wasting their time on putting together a price proposal.

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21 hours ago, Matthew Fleharty said:

Please re-read the first two sentences of the OP’s post and explain why you think we’re dealing with multi-agency contracts.

Matthew - Sorry for my delay I was fighting winds in Denver and endless flight delays, yep for two days.  I guess your crystal ball is better than mine as my read couldn't figure out one way or the other whether they were multi-agency contracts.

20 hours ago, Rookie1102 said:

To confirm this is not a multi-agency contract.

 

17 hours ago, Vern Edwards said:

No, Carl, it didn't. Thank you. Sorry I took so long to respond. I'm in a foreign time zone.

Thank you Rookie and Vern for the clarification.....

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Here is my uneasy feeling as this discussion continues....

It seems clear from all the FAR references provided that FAR subpart 36.6 processes apply to selecting an A-E off of a multi-agency or multiple award IDIQ contract for a task order.  If my read is correct and based on further comments the question raised by OP and responses provided  goes further than just IDIQs nd specifically to this.....

When conducting any procurement pursuant to FAR 36.6, can the Government request pricing proposals from all A-E firms responding to a specific need? 

It seems this thread is saying YES to this question which creates for me that uneasy feeling and if it was ok to do (yes I understand innovation so do not throw that at me) why not just have A-E proposals submitted in the same manner as proposals are submitted with regard to FAR Part 15 and as quotes are submitted for FAR Parts 13 and 12.   Could be another place has been found to reduce the volume of the FAR, or maybe not!

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10 minutes ago, C Culham said:

why not just have A-E proposals submitted in the same manner as proposals are submitted with regard to FAR Part 15 and as quotes are submitted for FAR Parts 13 and 12

Because we aren't considering the price proposals/quotes of the other firms.

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3 hours ago, Rookie1102 said:

Because we aren't considering the price proposals/quotes of the other firms.

Ok I guess I am the rookie as I am confused.   Let me try this.

You agree that when selecting an A-E for a IDIQ parent contract you don't (aren't) considering price of the other firms, correct?   And that such a process is in accordance with FAR subpart 36.6, correct?

Next do you agree when selecting a contractor under an A-E IDIQ multiple award contract you must follow FAR subpart 36.6?   If yes, then why is it any different than awarding the parent contracts in that you do not consider price to make the selection of the contractor? In either case you  are not to consider price of "the other firms" correct?   

I guess I just don't get it when you say in one case (parent IDIQ) you "aren't considering price..." and in the other case (task order) you imply you are.   Seems to me you are gaming FAR subpart 36.6 to read any old way you want it to read. 

Bottom line I agree with what has been stated in this thread, that the Brooks Act does not prevent the government from asking for A-E's to submit pricing with their response to a public announcement for an A-E project.  As noted doing so is highly out of the ordinary.    However to me both the Act and FAR 36.602-1 are clear that ANY contractor selected for a A-E contract (and a task order is a contract) that such selection is based on technical qualifications only and not "price proposals/quotes".   Once the A-E is selected as the most qualified the only consideration with regard to price is whether you can reach "a mutually satisfactory" contract with that firm.   "Satisfactory" would not only be fair and reasonable price but other stuff (competence and qualifications) that the A-E will bring to the contract effort.

Again you really have confused me  with the above quote as it implies you are considering price to determine who gets a task order award?1?!?!?!?!?!?!?!?!?

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Because I did not initially state our complete process and later proceeded to answer specific questions to our process, I believe my words are now being taken out of context.  We are in compliant with the Brooks Act on how we solicit and award A-E IDIQ contracts and subsequent task orders.  My apologies for not initially clarifying the specific question I was asking. 

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