Competing A/E IDIQs

[missgamecock]

We recently had policy come down (that I now know originated in the FAR and not so recent), where a mini source selection has to take place on our AE IDIQs. I have worked at two different agencies (USACE and then I switched to the VA) and neither has done this EVER. Usually, it would work to whoever had not had a contract in awhile (you would rotate between them) or compete the costs (meaning hours, etc seeing rates are set with the IDIQ). I understand the regulations as it pertains to the above now. It's just seems more time consuming and silly when you already have for ex. 3 equally good AEs on an IDIQ contract that can do the job. In my mind, I am thinking they have already proposed their qualifications. It seems like they are doing it all over again. This would be concerning the design phase of renovations or new building construction.

[Guest Vern Edwards]

We recently had policy come down (that I now know originated in the FAR and not so recent), where a mini source selection has to take place on our AE IDIQs. I have worked at two different agencies (USACE and then I switched to the VA) and neither has done this EVER. Usually, it would work to whoever had not had a contract in awhile (you would rotate between them) or compete the costs (meaning hours, etc seeing rates are set with the IDIQ). I understand the regulations as it pertains to the above now. It's just seems more time consuming and silly when you already have for ex. 3 equally good AEs on an IDIQ contract that can do the job. In my mind, I am thinking they have already proposed their qualifications. It seems like they are doing it all over again. This would be concerning the design phase of renovations or new building construction.

What do you mean by "mini source selection"? What does one of those look like?

[missgamecock]

I guess I should use the term "expedited" source selection. The technical evaluation team is supposed to pull the 330s and review them and rank them. Then we are to open negotiations with the top ranked firm. Where I worked before and was practice where I work now, the work was rotated between the IDIQ contractors to ensure minimum guarantees were met. Another tactic at my last agency was to actually compete the costs between the IDIQ contractors and lowest cost for the job would win. That would be referencing the costs and the amount of hours because their fees are already set in the contract. The one I am doing right now, the 330s are outdated from 2 years ago. So they are submitting a new 330 (updated) and then we are interviewing them. Then we'll open negotiations with the top ranked firm. There are only 3 firms, so it is not that big a deal. One of the IDIQ contractors declined to bid. I decided after meeting him, to accept him declining. I have NO idea how he got an IDIQ contract as he has no clue as to what he is doing. I don't have time to hold his hand. After doing more research on this subject, we'll be reviewing 330s from now on, then rank and select, then open negotiations with the top ranked firm from now on.

[Guest Vern Edwards]

Where I worked before and was practice where I work now, the work was rotated between the IDIQ contractors to ensure minimum guarantees were met. Another tactic at my last agency was to actually compete the costs between the IDIQ contractors and lowest cost for the job would win.

Rotating orders among multiple award contractors, which is a form of "allocation," is forbidden by FAR 16.505((1)(iii)(.

[joel hoffman]

Another tactic at my last agency was to actually compete the costs between the IDIQ contractors and lowest cost for the job would win. After doing more research on this subject, we'll be reviewing 330s from now on, then rank and select, then open negotiations with the top ranked firm from now on.

I was going to reply to the first statement above that was quoted in Vern's reply.

Selecting an A/E for a task order based upon price competition violates the Brooks Act, which stipulates that the selection of a firm to perform A/E services is to be based upon qualifications and then negotiate a reasonable price. This is implemented in FAR 36. For task orders you can simplify this. You should also consider past performance in your evaluations, in my opinion.

[Guest Vern Edwards]

I was going to reply to the first statement above that was quoted in Vern's reply.

Selecting an A/E for a task order based upon price competition violates the Brooks Act, which stipulates that the selection of a firm to perform A/E services is to be based upon qualifications and then negotiate a reasonable price. This is implemented in FAR 36. For task orders you can simplify this. You should also consider past performance in your evaluations, in my opinion.

Joel: Where in FAR Part 36 is the Brooks Act expressly applied to the fair opportunity process under a task order contract? If the application is not express, on what basis do you make your assertion?

[joel hoffman]

Joel: Where in FAR Part 36 is the Brooks Act expressly applied to the fair opportunity process under a task order contract? If the application is not express, on what basis do you make your assertion?

Vern, I never said anything about the fair opportunity process nor did I attempt to contradict anything you said. You said that "Rotating orders among multiple award contractors, which is a form of "allocation," is forbidden by FAR 16.505((1)(iii)(."

You didn't address the price competition that missgamecock mentioned. My point was, in addition to yours, that price competition isn't allowed for task order competition. Instead, task orders are placed using quality-based selection procedures. I don't understand your question.

The Brooks Act describes the requirements for qualifications-based selection of A-E firms. This has been implemented in FAR Subpart 36.6.

FAR 16.5 (d) allows agencies to use multiple award contracts for A-E services as long as placement of orders are consistent with FAR 36.6.

See also 16.505 (a)(8) for multi-agency contracts, which requires those task orders to be placed using the procedures of FAR 36.6.

For DOD, DFARS 216.505-70 "Orders under multiple award contracts" doesn't apply to orders for A-E services "which shall be placed in accordance with the procedures in FAR Subpart 36.6."

[Guest Vern Edwards]

Vern, I never said anything about the fair opportunity process nor did I attempt to contradict anything you said. You said that "Rotating orders among multiple award contractors, which is a form of "allocation," is forbidden by FAR 16.505((1)(iii)(."

You didn't address the price competition that missgamecock mentioned. My point was, in addition to yours, that price competition isn't allowed for task order competition. Instead, task orders are placed using quality-based selection procedures. I don't understand your question.

The Brooks Act describes the requirements for qualifications-based selection of A-E firms. This has been implemented in FAR Subpart 36.6.

FAR 16.5 (d) allows agencies to use multiple award contracts for A-E services as long as placement of orders are consistent with FAR 36.6.

See also 16.505 (a)(8) for multi-agency contracts, which requires those task orders to be placed using the procedures of FAR 36.6.

For DOD, DFARS 216.505-70 "Orders under multiple award contracts" doesn't apply to orders for A-E services "which shall be placed in accordance with the procedures in FAR Subpart 36.6."

The sentence that I bolded answers my question. Thanks. I don't know what the rest of all that blabbing is about.

[joel hoffman]

The sentence that I bolded answers my question. Thanks. I don't know what the rest of all that blabbing is about.

She didn't mention anything about a multiagency contract.

[Guest Vern Edwards]

So? You said, "Selecting an A/E for a task order based upon price competition violates the Brooks Act, which stipulates that the selection of a firm to perform A/E services is to be based upon qualifications and then negotiate a reasonable price. This is implemented in FAR 36." I asked where in Part 36 it says that the Brooks Act applies to task orders. You pointed out that FAR 16.505(a)(8) imposes the Brooks Act on multi-agency task order contracts. As far as I'm concerned, you gave me an answer to my question.

Does FAR apply the Brooks Act to single agency multiple award task order contracts?

[joel hoffman]

So? You said, "Selecting an A/E for a task order based upon price competition violates the Brooks Act, which stipulates that the selection of a firm to perform A/E services is to be based upon qualifications and then negotiate a reasonable price. This is implemented in FAR 36." I asked where in Part 36 it says that the Brooks Act applies to task orders. You pointed out that FAR 16.505(a)(8) imposes the Brooks Act on multi-agency task order contracts. As far as I'm concerned, you gave me an answer to my question.

Does FAR apply the Brooks Act to single agency multiple award task order contracts?

I think so. I provided two other references, one general and one for DOD contracts.

FAR 16.505(a)(8) implemented the referenced public law. I think it was specifically meant to address GSA schedules and other GWAC's. I think that they were often using price competition for orders, not using quality based selection procedures as otherwise required by the other reference I provided.

[joel hoffman]

I think so. I provided two other references, one general and one for DOD contracts.

FAR 16.505(a)(8) implemented the referenced public law. I think it was specifically meant to address GSA schedules and other GWAC's. I think that they were often using price competition for orders, not using quality based selection procedures as otherwise required by the other reference I provided.

Per March 9, 2005 Federal Register Notice at http://edocket.access.gpo.gov/2005/05-4084.htm that announced the Interim Rule and asked for comments, "...This action is necessary because Federal agencies require clear guidance to avoid inadvertently violating the requirements of the Brooks Architect-Engineers Act and section 1427( of the Services Acquisition Reform Act of 2003 (Title XIV of Pub. L. 108-136.) Section 1427( went into effect November 24, 2003."

Per the Notice of Final Rule at http://74.125.113.132/search?q=cache:vwf1Y...ient=firefox-a:

"This final rule constitutes the implementation in the FAR of Section 1427 of the Services Acquisition Reform Act of 2003 (Title XIV of Public Law 108-136) to ensure that the requirements of the Brooks Architect-Engineers Act (40 U.S.C. 1102 et seq.) are not circumvented through the placement of orders under GSA MAS contracts and Governmentwide task and delivery order contracts that were not awarded using FAR Subpart 36.6 procedures. An order cannot be issued consistent with FAR Subpart 36.6, as currently required by FAR 16.500(d), unless the basic underlying contract was awarded using the Brooks Architect-Engineers Act procedures. This final rule amends FAR parts 2, 8, 16, and 36 to ensure appropriate procedures are followed when ordering architect-engineer services. The interim rule was published in the Federal Register at 70 FR 11737, March 9, 2005."

There is no reason why single agency ID/IQ contracts should be any different from the Schedules. The law was passed to reign in use of the Schedules and to ensure that the underlying contracts were awarded using the Brooks Act procedures in Subpart 36.6. Obviously there was a need to do this and I remember coverage of such abuses and lack of discipline within GSA in complying with the Brooks Act.

PL 108-106 (National Defense Authorization Act for FY 2004, Title XIV?Services Acquisition Reform , The Services Acquisition Reform Act of 2003 (SARA)) also clarified that mapping and serveying contracts fall under the Brooks Act procedures.

[Guest Vern Edwards]

Joel:

What you quoted said: "An order cannot be issued consistent with FAR Subpart 36.6, as currently required by FAR 16.500(d), unless the basic underlying contract was awarded using the Brooks Architect-Engineers Act procedures."

Okay, but do the orders themselves have to be issued in accordance with FAR 36.6? What you quoted did not say that the fair opportunity process for selecting the contractor that will receive the order must conform to the A-E selection process.

[joel hoffman]

Joel:

What you quoted said: "An order cannot be issued consistent with FAR Subpart 36.6, as currently required by FAR 16.500(d), unless the basic underlying contract was awarded using the Brooks Architect-Engineers Act procedures."

Okay, but do the orders themselves have to be issued in accordance with FAR 36.6? What you quoted did not say that the fair opportunity process for selecting the contractor that will receive the order must conform to the A-E selection process.

FAR 16.505 (a) (8)" In accordance with section 1427( of Public Law 108-136, 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."

[joel hoffman]

FAR 16.505 (a) (8)" In accordance with section 1427( of Public Law 108-136, 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."

16.5 "(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."

The above says that orders must be consistent with Subpart 36.6.

See also 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.

( 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."

I also quoted DFARS for DoD orders.

[Guest Vern Edwards]

Thanks.