Would love some input here from any knowledgeable folks about this. If an agency intends to issue a single solicitation for multiple A-E services IDIQ contracts, is that a "multiple award" as defined under FAR 16.505 and does the fair opportunity process apply at the task order level? FAR 16.5 exempts AE IDC's from the statutory multiple award preference, I get that. And the Brooks A-E Act as implemented by FAR 36.6 applies, i get that too. But by logic, if one solicitation results in multiple IDC's it seems that's a "multiple award" situation. And as for Fair Opportunity, I'd think the most appropriate COA would be to articulate in the synopsis how the agency will provide fair opportunity at the task order level by selecting the best A-E for each particulat task order SOW (using competency/qualifications criteria not price).

In my experience this issue is consistently something that is discussed inconclusively, since, to me at least, the FAR is a bit convoluted on the topic. The DFARS used to have instruction under citation 216.505-70 (it was ¶(a)(4) I believe) that specificially exempted A-E contracts from fair opportunity under the IDIQ ordering process--however sometime in 2012 or 2013 that content was removed. The USACE's Architect-Engineering Contracting Guide (EP 715-1-7), which was updated in 2012 states at page 4-9 that the Contracting Officer must document the file as to why a particular contractor is selected. Although that's not policy that applies to any non-USACE contracting agencies, they are considered to be one of the premiere A-E contracting agencies across the federal Government. The EP also provides a standard synopsis template (appendix O) that states verbatim, "If multiple IDCs, state method to be used to allocate task orders among contracts when two or more IDCs contain the same or similar scopes of work such that a particular task order might be awarded under more than one IDC. See FAR 16.505 for guidance."

Anyone have any experience with this issue?

No experience with it but see Federal Register Volume 78, Number 123 (Wednesday, June 26, 2013) Pages 38234-38235]From the Federal Register Online via the Government Printing Office [www.gpo.gov] FR Doc No: 2013-15270, which deleted 216.505-70 ( a ) because it was redundabnt with FAR 16.500 ( d )

Defense Federal Acquisition Regulation Supplement: Requirements for Acquisitions Pursuant to Multiple Award Contracts (DFARS Case 2012-D047)AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).ACTION: Final rule....Delete 216.505-70(a), (, (c), (d)(1), (2), (4), and (5) which are redundant. Competitive requirements for orders under multiple-award contracts are now fully implemented in the FAR at 16.500(d) and 16.505(.

Here is FAR 16.500 ( d )

16.500 ( 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.

Also - DFARS 236.6 and PGI 236.6 are also applicable. The PGI at 236.6 provides some evaluation criteria to consider in what I would consider to be a quality based task order competition between the contract holders.

I will try to find out who the current A-E contracting proponent is at HQUSACE tomorrow and inquire.

Joel – I would suggest you save your effort based on this quote.

EP 715-1-7, dated February 29, 2012 at Paragraph 2.8(e) on Page 2-5 it states

“Regardless of the grouping or terminology used for A-E contracts, the award of task orders under separate A-E IDC or under of group of IDCs forming MATOCs must be qualification-based actions, per the Brooks Act.”

Jdm843 - in a full read of the FAR, DFARS and the EP it seems pretty clear to me the Brooks Act applies and not fair opportunity.

Thanks, Carl. That confirms my point made above. I should have double checked the EP.

Thanks for the input.

I'm not sure the Brook Act and fair opportunity are mutually exclusive, however. I.E. fair opportunity doesn't have to consider price when acquiring A-E services under a multiple award IDC.

EP 715-1-7, ¶2-8(e) also defines an A-E MATOC as (1) a single announcement that leads to multiple IDC's and (2) a group of contracts for a particular program or specific area with same/similar services.

EP 715-1-7, Appx O, Item 16 has a bullet for (1) number of contracts and (2) method used to allocate task orders

BOTTOM LINE? For me, all this simply means no matter what arrangement you choose, the agency's rationale for selecting one IDC over another should be (1) qualfications based and (2) documented for the contract file. If you do that seems to me you've satisfied both the Brooks Act AND fair opportunity.

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EP 715-1-7, ¶2-8(e):

e. Indefinite Delivery Contracts (IDCs). Indefinite delivery contracts are the

predominant contract type used for A-E services in USACE. IDCs must comply with FAR

16.5, and FAR 36.601-3-90. IDCs are generally used for recurring types of A-E services

where procurement of these services individually by normal announcement, selection,

negotiation, and award procedures would not be economical or timely. Task orders for

particular projects are negotiated and issued under the terms and conditions of the IDCs. The

task order may be Firm Fixed Price, Cost Reimbursement or time and material, as allowed by

the terms and conditions of the basic IDC. If more than one award is identified in the

synopsis, then multiple SF330s can be considered by the selection panel for negotiation and a

series of separate Indefinite Delivery Contracts for A-E services can be awarded. This series

of A-E IDCs can be termed Architect-Engineer Multiple Award Task Order Contracts (A-E

MATOCs) per AFARS 5116.505-90(c ) if the IDCs are for a specific program or area. The

FAR encourages multiple awards from one synopsis if practical; however more than one

award from a single FedBizOpps announcement does not necessarily require the multiple

award to be an A-E MATOC. An A-E MATOC is basically a group of contracts for a

particular program or specific area with same/similar services. A-E MATOCs should not be

strictly equated to Multiple Award Task Order Contacts (MATOC) for construction, services

or supplies which require price consideration. Regardless of the grouping or terminology

used for A-E contracts, the award of task orders under a separate A-E IDC or under a group

of A-E IDCs forming MATOCs must be qualification-based contact actions, per the Brooks

Act.

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EP 715-1-7, Appendix O, Item 16:

- Number of contracts. If multiple contracts, state how rank of firms will relate to

award of contracts.

- If multiple IDCs, state method to be used to allocate task orders among contracts

when two or more IDCs contain the same or similar scopes of work such that a particular

task order might be awarded under more than one IDC. See FAR 16.505 for guidance.

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NOTES:

1. FAR 36.601-3-90 does not exist. I've always assumed that was a typo and should instead read AFARS 5136.601-3-90 which simply states, "[HQ USACE and HQ NGB] must

establish appropriate controls on the use of indefinite-delivery contracts for architect-engineering services by subordinate contracting offices."

2. AFARS 5116.505-90(c ) no longer exists. It used to state, "(c ) With the exception of architect-engineer contracts, price shall be considered in the ordering process..." (see archived AFARS 2013-1)

jdm - I guess you can call it what you want but by read of the FAR, fair opportunity as a process, does need to include consideration of price or cost for selection of the contractor (ref. FAR 16.505(B )(1)(ii)(E)) so therefore a process that does not include selection on price/cost cannot be "fair opportunity" (Brooks Act process for example).