Although my agency has awarded single award A/E contracts for years, someone in charge a few years ago decided that they didn't want us to use single awards (with no basis other than an opinion). One of the reason we chose not to award multiple award A/E contracts is because we are required to use the Brooks Act procedures for each task order, prolonging the process.

An attorney wrote a decision that stated the agency has to award multiple contracts for A/E reasoning that RFO 36.102 requires COs to award A/E in accordance with part 36, RFO part 36.202(b)(2) and (3) require agencies to identify at least 3 firms for discussion. So their argument is you cannot do that at the task order level with single awards.

My argument is FAR 16.500(d) states that the statuary multiple award preference 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 A/E services using this subpart, provided the selection of contractors and placement of orders are consistent with subpart 36.6.

To me the paragraph above is says it all but now because of one person's ego, the whole agency has to suffer. I would appreciate other's opinions (especially Vern and Joel).

@Former Fed Is DHS FEMA the agency?

45 minutes ago, Vern Edwards said:

@Former Fed Is DHS FEMA the agency?

This is strange. I never wrote that 😃

But I do know FEMA faced this issue previously. They did single A/E awards as part of flood plane relief mapping efforts before someone pointed out that wasn’t proper.

See this:

FEMA Task Orders May Violate Brooks Act.pdf

Also, see 10 USC § 3406, Task and delivery order contracts: orders:

(h) Architectural and engineering services.--

(1) Qualification-based selections required.--Task or delivery orders for architectural and engineering services issued under section 3403 or 3405 of this title shall be qualification-based selections executed in accordance with chapter 11 of title 40.

(2) Multiple award contracts.--When issuing a task or delivery order for architectural and engineering services under a multiple award contract, the head of an agency may not routinely request additional information relating to qualifications from the contractor for such multiple award contract.

Your agency's attorney may have been right. But I don't know if the above has also been applied to civilian agencies.

All of the decades-long efforts at procurement commercialization, modernization, overhaul, reform, streamlining, etc., have created a chaotic regime in federal contracting. All attempts to fix procurement seem to have only made things worse. It's harder than ever to know the rules. And implementation is a madhouse these days. Every day (most recently in Tennessee) we see evidence of the incompetence of government at every level, with a few notable exceptions.

In a book on bureaucracy that I've been reading, The Demon of Writing: Powers and Failures of Paperwork, by Ben Kafka, the author quotes the French theorist Jacques Lacan as follows, speaking of catastrophic mass destruction:

"Not perverts but bureaucrats will set things off, and we won't even know if their intentions were good or bad."

It's not FEMA. In the FEMA case, it sounds like they issued multiple award contracts then didn't use the Brooks Act to compete the task orders. Our agency has established that under multiple award A/E contracts that the Brooks Act must be used. But as I said above FAR 16.500(d) states that the statuary multiple award preference 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 A/E services using this subpart, provided the selection of contractors and placement of orders are consistent with subpart 36.6.

That is where I have a problem: It states that the MA preference does not apply for A/E. Also, the attorney who delivered the opinion is not a procurement attorney and didn't even weigh in on 16.500.

1 hour ago, Former Fed said:

But as I said above FAR 16.500(d) states that the statuary multiple award preference does not apply to architect-engineer contracts subject to the procedures in subpart 36.6.

I know. I was going to make the 16.500 argument in response to your initial post and in agreement with you, but I have to say that the rules are so convoluted these days that I'm reluctant to insist upon it. As I have shown, above, it appears that 10 U.S.C. requires DOD to use A-E procedures to award task orders under single-agency MATOC contracts. But I didn't find such provisions in Title 41. I'll go back and look again.

You can't always trust the FAR these days, if you ever could.

My theme these days is that we need a break from acquisition/procurement reform. I've lived through a lot of it in my 50+ years in this business, and I do not see how it has made anything significantly better and less confusing. And implementation has often missed the mark. My reading of the RFO proposed rules is that the changes will make things more complicated and most acquisition personnel more uncertain and hesitant, at least for a while, but will not improve processes unless professional education and training are greatly improved.

On 10/1/2026 at 10:01 AM, Former Fed said:

An attorney wrote a decision that stated the agency has to award multiple contracts for A/E reasoning that RFO 36.102 requires COs to award A/E in accordance with part 36, RFO part 36.202(b)(2) and (3) require agencies to identify at least 3 firms for discussion. So their argument is you cannot do that at the task order level with single awards.

Flawed attorney premise leading to the decision?

I think so when you consider this as well which seems to support that a single award IDIQ A-E contract is permissable if it is awarded pursuant to Brooks Act (RFO 36.6). RFO 16.504-3(a)(4)(iii)(B) "(iii) The requirement for a determination for a single-award contract greater than $150 million-...(B) Is not applicable for architect-engineer services awarded pursuant to part 36." This language supports in my view that first there is no statutory preference for multiple award A-E IDIQs as already stated and that a single award IDIQ awarded pursuant to RFO 36 meets the statutory intent of the Brooks Act.

I also believe that RFO 6.001 at (f) fits into the argument of a flawed decision as well.

Additional reference - https://www.federalregister.gov/documents/2010/03/19/2010-5989/federal-acquisition-regulation-far-case-2008-006-enhanced-competition-for-task--and-delivery-order

Finally, with no case law stated as supporting the attorneys the decision is problematic especially when it seems RFO language regarding A-E being exempt from multiple award preference has changed little from that of the FAR.

My conclusion - The attorney has failed to consider the whole of statutory intent and application of the Brooks Act as it is being proposed to be codified in the whole of the RFO. Additionally the decision in my view is a singular one that adds to the chaos surrounding the RFO rather than to help clarify it.

C Culham I totally agree. And you are correct, there was no case law presented that supported their decision.

@Former Fed, why did you take a user name so close to mine? I keep getting an alert that someone responded to my post when it turns out to be you.

On 10/1/2026 at 10:01 AM, Former Fed said:

An attorney wrote a decision that stated the agency has to award multiple contracts for A/E reasoning that RFO 36.102 requires COs to award A/E in accordance with part 36, RFO part 36.202(b)(2) and (3) require agencies to identify at least 3 firms for discussion. So their argument is you cannot do that at the task order level with single awards.

What if you only get one offer in response to the RFP for the IDIQ?

7 hours ago, Don Mansfield said:

What if you only get one offer in response to the RFP for the IDIQ?

Do you mean only one response to a solicitation for SF-330's? If so I believe it depends. In DoD a requirement to resolicit does not exist. The RFO DFARS 215.371-4(5) which was in the DFAR as well. Non-DoD one would make an argument that adequate competition was sought and move on to evaluating the technical capabilities of the one firm. If found adequate then move to the next step of negotiation of a price with that firm.

I put the following question to ChatGPT:

When issuing a task order for architect-engineer (A-E) services under a multiple-award indefinite-delivery indefinite-quantity contract for A-E services, must the contracting officer follow the A-E selectionn procedures in Federal Acquisition Regulation subpart 36.6?

This is the answer that I received:

Yes. When a contracting officer places a task order for architect-engineer (A-E) services under a multiple-award IDIQ contract for A-E services, the selection of the contractor for that task order must be consistent with the qualifications-based selection procedures of FAR subpart 36.6. The contracting officer cannot simply conduct an ordinary FAR 16.505 “fair opportunity” competition based on technical factors and price.

The clearest authority is FAR 16.500(d):

“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.” Acquisition.gov

That language was deliberately put into the FAR to preserve the Brooks Act qualifications-based selection process at the task-order level, not merely at the award of the underlying IDIQ contracts.

What that means at the task-order level

Under FAR 36.6, A-E firms are selected on the basis of demonstrated competence and qualifications, rather than price competition. FAR 36.601-3(b) expressly provides that sources for A-E contracts are selected under subpart 36.6 rather than the source-selection procedures of FAR Parts 13, 14, or 15. Acquisition.gov

Thus, where several A-E firms hold parallel IDIQ contracts, the Government ordinarily must determine which of those firms is the most highly qualified for the particular task, using qualifications appropriate to that task. Only after making that qualifications-based selection does the Government negotiate price with the selected firm.

The regulatory history is unusually helpful on this point. When the FAR Councils adopted the multiple-award rule, they explained how an agency could operate a multiple-award A-E IDIQ:

“each task order is technically competed among the multiple awardees. Each firm's response to the task order is technically ranked based on the evaluation factors for that task. The most technically qualified firm is determined as a result of the responses received and a cost proposal is required from that firm. Negotiations take place and, in most cases, the task order is awarded.” Acquisition.gov

That is strong evidence that qualification-based selection is repeated at the task-order level, although it can be streamlined because the universe of eligible firms has already been established.

An especially important distinction

I would therefore distinguish between these two propositions:

1. Must the contracting officer comply with FAR 36.6 in selecting the task-order contractor? — Yes.

2. Must the agency literally repeat every procedural step used to award the underlying IDIQ contracts—for example, conduct a new public announcement and obtain entirely new SF 330 submissions for every order? — Not necessarily.

The requirement in FAR 16.500(d) is that the “selection of contractors and placement of orders” be consistent with subpart 36.6. Existing qualifications information can therefore be used where sufficient, and task-order procedures can be structured around the existing pool of qualified IDIQ contractors.

This distinction has become particularly explicit for DoD. DFARS 216.500(d) now says:

“When awarding task orders or delivery orders for architect-engineer services under a multiple-award contract, follow the procedures for the selection of contractors and placement of orders at FAR 36.6....”

It then says that contracting officers shall not request additional qualifications information unless necessary to determine the most highly qualified contractor for the particular order. Acquisition.gov

That provision makes the intended model quite clear: the Government does not unnecessarily redo the entire qualifications submission process, but it does make a FAR 36.6 qualifications determination for the individual task order.

Price cannot be the task-order discriminator

This has an important practical consequence. The contracting officer should not conduct an ordinary FAR 16.505 best-value competition in which all A-E IDIQ holders submit technical and price proposals and the Government trades qualifications against price.

That would conflict with the Brooks Act/FAR 36.6 system. The FAR Councils expressly explained that the Brooks Act “precludes price competition by establishing qualification-based source selection procedures.” Acquisition.gov

Instead, the basic sequence should be:

Task requirement → evaluate/rank the eligible A-E IDIQ firms on qualifications → select the most highly qualified firm → obtain/negotiate its price → award the task order if a fair and reasonable price can be negotiated; otherwise proceed to the next-ranked firm.

There is also a useful recent GAO report confirming the general proposition. GAO explained that although orders under ordinary multiple-award contracts generally use FAR 16.505 fair-opportunity procedures, “for contracts and orders for A-E services, agencies must select contractors in accordance with a separate set of procedures outlined in FAR subpart 36.6.” Government Accountability Office

One qualification concerning multi-agency contracts

FAR 16.505(a)(9) makes the requirement even more explicit for an order under a multi-agency contract. If the services substantially or predominantly constitute A-E services, the order “shall … [b]e awarded using the procedures at subpart 36.6.” Acquisition Services

But I would not infer from the special provision for multi-agency contracts that agency-specific multiple-award A-E IDIQs are exempt. FAR 16.500(d) independently governs multiple-award A-E contracts generally and requires order placement to remain consistent with 36.6.

So, in the circumstances you describe, my answer is yes: the contracting officer must use FAR 36.6 qualifications-based selection in choosing which A-E IDIQ contractor receives the task order. The interesting subsidiary question is exactly which provisions of FAR 36.602-1 through 36.602-5 must be replicated at the task-order level and which may be satisfied by the original IDIQ selection process.

That subsidiary question is considerably more subtle. The 1996 FAR rulemaking history, the newer DFARS language, and agency ordering procedures provide some very useful clues. If you'd like, I can research that narrower question next—particularly whether a formal FAR 36.602-2/36.602-3 evaluation board and FAR 36.602-4 selection-authority action are legally required for each task order.

I then asked ChatGPT to research the narrower question. This is the response:

to I researched the narrower question through the current FAR and DFARS, the Brooks Act statute, the 1996 FAR rulemaking that authorized multiple-award A-E IDIQs, the FY2023 NDAA amendment, GAO decisions and reports, and—particularly illuminating—the January 2026 U.S. Army Corps of Engineers A-E contracting procedures.

My conclusion is somewhat stronger than the qualification I gave earlier:

For a task order under a multiple-award A-E IDIQ, the better reading is that the agency must conduct a project-specific FAR 36.602 selection process, including an A-E evaluation board and a FAR 36.602-4 selection-authority decision. However, it need not repeat every procedural event associated with award of the underlying IDIQ—most importantly, it generally need not issue another public synopsis or obtain new SF 330s, and, at least for DoD, discussions/additional qualifications submissions need not routinely be conducted.

There is an interesting tension between the literal language of FAR 36.602-3(c) and the newer DoD statute on discussions, which I discuss below.

1. Start with the statute, rather than FAR 16.505

For DoD, Congress has now made the rule exceptionally clear. 10 U.S.C. § 3406(h)(1) provides:

“Task or delivery orders for architectural and engineering services … shall be qualification-based selections executed in accordance with chapter 11 of title 40.”

And for a multiple-award contract, § 3406(h)(2) provides that the agency head “may not routinely request additional information relating to qualifications” from the contractors. U.S. Code

The reference to chapter 11 of title 40 is important. Section 1103(c) says:

“For each proposed project,”

the agency must evaluate the qualifications information available to it and conduct discussions with at least three firms. Section 1103(d) then requires the agency to select, in order of preference, at least three firms considered most highly qualified. U.S. Code

Thus, Congress did not say merely that the IDIQ contractors must originally have been selected through Brooks Act procedures. It expressly made the task order itself a “qualification-based selection” and incorporated the chapter 11 selection procedures.

That is powerful evidence that the project-specific selection cannot consist merely of the contracting officer informally choosing one of the previously selected IDIQ holders.

2. FAR 16.500(d) points in the same direction

FAR 16.500(d) says that multiple awards for A-E services are permissible:

“provided the selection of contractors and placement of orders are consistent with subpart 36.6.” Acquisition.gov

The distinction between “selection of contractors” and “placement of orders” matters. Compliance with 36.6 at the base-contract stage alone does not satisfy the sentence; placement of the orders must independently be consistent with 36.6.

The 1996 rulemaking confirms that this was intentional. In explaining the provision, the FAR Councils described an actual multiple-award A-E arrangement under which each task order was competed among the IDIQ holders, the firms were technically ranked for the particular task, the most-qualified firm was identified, and only then was a cost proposal requested and negotiated. The Councils specifically emphasized that the Brooks Act precludes price competition for A-E services. Acquisition.gov

That history strongly supports a new qualifications ranking for each task order.

3. Does FAR 36.602-2 require an evaluation board for the task order?

I think the better answer is yes.

FAR 36.602-2(a) does not say that evaluation boards are required only when awarding a basic contract. It says:

“When acquiring architect-engineer services, an agency shall provide for one or more permanent or ad hoc architect-engineer evaluation boards....”

And FAR 36.602-3 says:

“an evaluation board shall perform the following functions....”

Those functions include evaluating firms under FAR 36.602-1 and preparing a report recommending, in order of preference, at least three firms considered most highly qualified. Acquisition.gov

When that language is read together with FAR 16.500(d)'s requirement that placement of orders be consistent with 36.6, it is difficult to construct a textual basis for eliminating the evaluation board at the task-order stage.

The statutory language reinforces that conclusion because 40 U.S.C. § 1103 requires the qualifications evaluation “for each proposed project.” U.S. Code

USACE's current interpretation is particularly revealing

The Corps' current EP 715-1-7, Architect-Engineer Contracting in the USACE (12 January 2026) squarely addresses this question.

For an A-E multiple-award task-order contract, it says that an individual firm is selected for each requirement and that the most-highly-qualified firm for that particular requirement is determined through a task-order selection process. The Corps expressly says task orders must be qualification-based contract actions under the A-E statute, FAR 16.500(d), and FAR 36.6. PUBLibrary

More significantly, its task-order chapter requires:

“A TO board convenes, reviews SF 330 information on file....” PUBLibrary

So the Corps—an agency with enormous practical experience procuring A-E services—interprets FAR 36.6 as requiring an evaluation board at the task-order level, not merely at the MATOC award stage.

I regard that as persuasive administrative practice, although obviously USACE guidance is not itself a Government-wide interpretation of the FAR.

4. Does the board have to recommend three firms?

Again, yes, in the ordinary multiple-award situation.

FAR 36.602-3(d) requires the evaluation board to recommend:

“in order of preference, at least three firms that are considered to be the most highly qualified....” Acquisition.gov

That tracks 40 U.S.C. § 1103(d), which similarly requires an ordered selection of at least three firms. U.S. Code

The Corps' 2026 procedures apply precisely that requirement at the task-order level. Following its task-order evaluation, the board:

“must prepare a selection memorandum recommending, in order of preference, at least three firms that are considered the MHQ to perform the work called for under the TO.”

The memorandum need not be elaborate, but it must explain the qualifications evaluation and the rationale for the ranking sufficiently to support the decision. PUBLibrary

That is probably the best concrete illustration I found of what “consistent with subpart 36.6” means operationally.

5. Is a FAR 36.602-4 selection-authority decision required?

Here too, I think the answer is yes.

FAR 36.602-4(a) is mandatory:

“The final selection decision shall be made by the agency head or a designated selection authority.”

The selection authority reviews the board's recommendations and makes the final ordered selection. If the authority does not select the board's first-ranked firm as most preferred, the file must contain the required explanation. Acquisition.gov

Again, the current Corps procedure applies this requirement directly to task orders. It requires a task-order selection authority to review the evaluation board's recommendations and make the final selection decision, expressly citing FAR 36.602-4(b). PUBLibrary

Thus, I would be very reluctant to conclude that a contracting officer can simply make the task-order selection unless that contracting officer has actually been designated as the appropriate FAR 36.602-4 selection authority under the agency's procedures.

6. But a new SF 330 competition is not required

This is where the procedure becomes substantially streamlined.

The Corps' current procedures say that the task-order board evaluates the SF 330s already on file. Additional qualifications information is requested only if those existing materials are insufficient to determine the most highly qualified firm for the particular task. PUBLibrary

Indeed, the Corps expressly instructs:

“Do not require submission of a new or updated SF 330 (or parts of an SF 330) for each TO.” PUBLibrary

That makes considerable sense in light of 10 U.S.C. § 3406(h)(2), which now prohibits DoD from routinely requesting additional qualifications information at the task-order stage. U.S. Code Web

GAO's 2024 report on the Corps confirms this interpretation. GAO explained that under the Corps' revised procedure, existing qualifications information is evaluated first. If it is sufficient, the Corps issues a simplified notice and proceeds with the selection; additional information is requested only when necessary to identify the most-qualified firm. Government Accountability Office

So the task-order board is real, but the contractors need not necessarily submit anything new to it.

7. Nor does the Government necessarily issue another public synopsis

I also do not think FAR 36.601-1 means that every order under a properly competed A-E MATOC must be publicly advertised again.

The public competition establishing the MATOC has already identified the eligible pool. The task-order selection occurs among those firms.

That conclusion is supported by the task-order statutes, which generally eliminate a separate synopsis for an order, and by the practical structure recognized in the 1996 FAR rulemaking. For DoD, 10 U.S.C. § 3406(b)(1) expressly says a separate notice under the procurement-synopsis statute is not required for issuance of an order. U.S. Code

So I would distinguish sharply between repeating the selection process and reopening the acquisition to the public.

The former is required; the latter ordinarily is not.

8. The difficult issue: must the task-order board conduct discussions with three firms?

This is the genuinely troublesome part.

Taken literally, FAR 36.602-3(c) says that the evaluation board shall:

“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.” Acquisition.gov

And 40 U.S.C. § 1103(c) similarly says that for each proposed project the agency “shall conduct discussions with at least 3 firms.” U.S. Code

On the face of those provisions, therefore, the answer would appear to be yes.

But Congress complicated the matter in the FY2023 NDAA. It simultaneously made DoD task orders expressly subject to qualifications-based selection under chapter 11 and prohibited DoD from routinely requesting additional qualifications information from the MATOC contractors. U.S. Code Web

DoD's implementing DFARS provision now says:

“When awarding task orders or delivery orders for architect-engineer services under a multiple-award contract, follow the procedures for the selection of contractors and placement of orders at FAR 36.6....”

but then immediately provides that contracting officers “shall not request additional information related to contractor qualifications, unless it is necessary to determine the most highly qualified contractor” for the particular order. Acquisition.gov

USACE has resolved the tension by making discussions non-routine.

Its 2026 procedure expressly says that when existing SF 330 information is sufficient, supplemental information will not be requested and:

“The routine request for additional information, whether from discussions or supplemental information (or both) is not a requirement when awarding an A-E TO from a MATOC....”

Discussions may instead occur if the board determines that additional information is needed. PUBLibrary

That is a fascinating interpretation because, read literally, FAR 36.602-3(c) and 40 U.S.C. § 1103(c) still say “shall” conduct discussions with at least three firms.

I did not find a GAO or Court of Federal Claims decision squarely deciding whether the FY2023 NDAA permits DoD to dispense with § 1103(c)/FAR 36.602-3(c) discussions when existing information is adequate. The Corps plainly believes that it does.

I would therefore treat this particular point as less settled than the board and selection-authority requirements.

9. Negotiation under FAR 36.606

Once the most-highly-qualified task-order contractor has been selected, the Brooks Act sequence resumes in the familiar way: price is negotiated with that firm.

The Government does not obtain competing prices from the MATOC holders and use those prices in deciding which firm should receive the task.

The Corps' procedure illustrates the sequence nicely:

qualifications evaluation → task-order ranking → selection-authority approval → notify firms → request proposal from selected firm → negotiate fair and reasonable price → task-order award.

GAO's description of the Corps process confirms that sequence. Government Accountability Office

That is fundamentally different from an ordinary FAR 16.505(b) fair-opportunity competition.

10. My resulting interpretation

I would break the FAR 36.6 procedures into three categories:

Procedure	Repeat for A-E MATOC task order?
New public FAR 36.601-1 synopsis open to the market	Generally no
New SF 330 from every MATOC holder	No
Project-specific FAR 36.602-1 qualifications evaluation	Yes
FAR 36.602-2 A-E evaluation board	Yes
Rank the most-highly-qualified firms	Yes
FAR 36.602-3(d) selection report/memorandum	Yes, although it can be streamlined
Recommend at least three firms	Yes, assuming at least three eligible MATOC holders
FAR 36.602-4 selection-authority decision	Yes
FAR 36.602-3(c) discussions with at least three	Textually yes, but for DoD the FY2023 statute/DFARS and current USACE implementation permit dispensing with routine discussions when existing information is sufficient
Obtain competing prices before selecting the firm	No
Negotiate price with the highest-ranked firm under FAR 36.606	Yes

Bottom line

I would revise my earlier formulation slightly.

The task-order process is not merely required to embody the “principle” of qualifications-based selection. There is substantial textual support for the stronger proposition that the operative selection machinery of FAR 36.602 must be employed at the task-order level: an A-E evaluation board evaluates the MATOC firms against the particular project's requirements, produces a ranking/selection recommendation, and a designated FAR 36.602-4 selection authority makes the final qualifications selection. Only then does price negotiation occur.

What is streamlined is principally the information-gathering apparatus. The Government ordinarily relies upon the qualifications information already obtained and maintained under the MATOC rather than conducting another full public competition and requiring another set of SF 330s.

The most interesting unresolved legal issue is the apparent conflict between 40 U.S.C. § 1103(c)'s unequivocal requirement for discussions with at least three firms “for each proposed project” and DoD's post-FY2023 practice of dispensing with discussions when the existing qualifications record is sufficient. The Corps' current procedure is clear, but I am not convinced the statutory reconciliation is entirely self-evident.

If you are interested, I think that last issue merits a statutory-construction analysis of § 1103(c) versus 10 U.S.C. § 3406(h)(2), including the legislative history of § 802 of the FY2023 NDAA. It might reveal whether Congress actually intended to eliminate mandatory task-order discussions or merely intended to stop agencies from demanding repetitive SF 330-type submissions.

I then asked it to make a statutory construction analysis. This is what I got:

Yes. After comparing the enacted language with the Senate provision from which it originated, I think the statutory-construction argument is considerably stronger than my previous answer suggested.

My conclusion is that 10 U.S.C. § 3406(h)(2) does not excuse DoD from the mandatory discussions required by 40 U.S.C. § 1103(c). Rather, § 3406(h)(2) limits routine demands for additional qualifications information. The two statutes can—and, under ordinary principles of statutory construction, should—be read together so that both operate.

The legislative history provides unusually strong confirmation.

1. The two provisions that must be reconciled

Section 802 of the FY2023 NDAA added 10 U.S.C. § 3406(h). Paragraph (1) provides:

“Task or delivery orders for architectural and engineering services … shall be qualification-based selections executed in accordance with chapter 11 of title 40.”

Paragraph (2) then provides:

“When issuing a task or delivery order for architectural and engineering services under a multiple award contract, the head of an agency may not routinely request additional information relating to qualifications from the contractor for such multiple award contract.” U.S. Code

Now compare § 3406(h)(1)'s incorporation of chapter 11 with 40 U.S.C. § 1103(c). For “each proposed project,” the agency must evaluate current qualifications information and:

“shall conduct discussions with at least 3 firms”

regarding anticipated concepts and the relative utility of alternative methods of furnishing the required services.

Section 1103(d) then requires the agency to select, in order of preference, at least three firms considered most highly qualified.

Thus § 3406(h)(1) expressly commands that the task order itself be selected under a statutory regime containing a mandatory-discussions requirement.

The question is whether § 3406(h)(2) silently creates an exception to that requirement.

I think the answer is no.

2. “Additional information relating to qualifications” is not synonymous with “discussions”

This is probably the most important textual point.

Congress used the phrase:

“request additional information relating to qualifications”

in § 3406(h)(2).

It did not say:

“request additional information or conduct discussions.”

Those are conceptually different activities under the Brooks Act.

Qualifications information concerns matters such as a firm's professional qualifications, specialized experience, capacity, past performance, location, and other information used to evaluate the firm.

By contrast, the discussions required by § 1103(c) concern:

• “anticipated concepts,” and

• “the relative utility of alternative methods of furnishing the required services.”

Those discussions are not necessarily—or even principally—a request for additional information about the firm's qualifications.

An agency could therefore perfectly well:

1. evaluate the existing SF 330 and other qualifications information already on file;

2. not request any additional qualifications information;

3. conduct § 1103(c) discussions concerning the particular project, concepts, and alternative approaches;

4. rank at least three firms; and

5. select the most highly qualified firm.

That construction gives full effect to both § 3406(h)(1) and § 3406(h)(2).

And that matters because courts ordinarily try to construe statutory provisions so that neither is rendered superfluous or implicitly repealed.

3. The structure of § 3406(h) strongly reinforces that reading

The paragraphs were enacted together.

Paragraph (1) establishes the substantive rule:

task orders shall be qualifications-based selections executed in accordance with chapter 11 of title 40.

Paragraph (2) then establishes a limitation applicable to multiple-award contracts:

agencies may not routinely request additional qualifications information.

The natural structural reading is:

Follow the Brooks Act selection process, but don't unnecessarily make the IDIQ contractors resubmit qualifications information the Government already possesses.

It is much less natural to read paragraph (2) as saying:

Follow chapter 11, except that one of chapter 11's express mandatory selection procedures—discussions with three firms—need not be followed.

If Congress intended the latter, one would expect it to say so.

And, remarkably, Congress considered language that essentially would have said so.

4. The Senate bill is the key

The Senate amendment that became § 802 contained a materially different paragraph (2).

Senate section 823 would have provided:

“the head of an agency shall not routinely request additional information from contractors, but may request additional information or conduct discussions with contractors when available information is insufficient, in order to determine the most highly qualified contractor....” Congress.gov

That is highly significant.

The Senate language expressly grouped two things together:

(1) requesting additional information; and
(2) conducting discussions.

And it expressly made both contingent upon existing information being insufficient.

Under that language, one could make a very strong argument that the normal § 1103(c) discussions requirement had been modified for multiple-award task orders: discussions would occur only when necessary because the existing information was insufficient.

But that is not what Congress enacted.

5. Congress deleted the discussions exception

The enacted paragraph (2) says only:

“may not routinely request additional information relating to qualifications....”

The language providing that the agency “may … conduct discussions with contractors when available information is insufficient” disappeared. GovInfo

Even more interestingly, Congress narrowed the object of the prohibition.

The Senate version prohibited routinely requesting:

“additional information”

generally.

The enacted version prohibits routinely requesting:

“additional information relating to qualifications.”

So the final legislation made two relevant changes:

First: it removed the express provision making discussions discretionary when existing information was sufficient.

Second: it narrowed the prohibition on additional information specifically to information “relating to qualifications.”

Both changes point in the same direction.

Congress appears to have separated qualifications submissions from project discussions.

6. The Joint Explanatory Statement does not undermine that inference

The Joint Explanatory Statement says:

“The Senate amendment contained a provision (sec. 823) that would amend section 3406 of title 10, United States Code, to modify how the most highly qualified contractor is selected to perform architectural and engineering services.”

It then says:

“The agreement includes the Senate provision with a technical amendment.” House Rules Committee

Calling the change “technical” makes the legislative history somewhat less decisive than it otherwise would be. It suggests that the conferees may not have consciously intended a major substantive departure from the Senate proposal.

But that description cannot change the statutory text actually enacted.

And the textual change is quite specific: the Senate expressly addressed discussions; the enacted statute does not.

Consequently, even if the conferees considered their alteration merely “technical,” the enacted language must still be reconciled with § 3406(h)(1)'s express command to execute the selection “in accordance with chapter 11 of title 40.”

Chapter 11 says the agency “shall conduct discussions.”

7. The canon against implied repeal/modification is important here

Suppose we adopt the USACE interpretation described earlier:

Section 3406(h)(2) means that if existing qualifications information is sufficient to rank the firms, discussions need not occur.

That interpretation effectively converts § 1103(c):

“shall conduct discussions with at least 3 firms”

into:

“shall conduct discussions with at least 3 firms if additional information is necessary.”

But § 3406(h)(2) never says that.

Moreover, § 3406(h)(1), enacted in the same section of the same statute, affirmatively incorporates chapter 11.

It would be a peculiar construction to say that paragraph (1) expressly incorporates § 1103(c)'s mandatory requirement while paragraph (2), without mentioning discussions at all, implicitly nullifies it for the principal situation governed by paragraph (2).

The much cleaner construction is:

§ 3406(h)(1) governs the selection procedure; § 3406(h)(2) governs repetitive qualifications submissions.

No conflict then exists.

8. FAR 36.602-3(c) eliminates much of the remaining ambiguity

There is an additional problem with dispensing with discussions.

FAR 36.602-3 says:

“The evaluation board shall perform the following functions....”

Paragraph (c) then requires the board to:

“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.”

And current DFARS 216.500(d)(i) expressly tells DoD contracting officers:

“When awarding task orders or delivery orders for architect-engineer services under a multiple-award contract, follow the procedures for the selection of contractors and placement of orders at FAR 36.6....” Acquisition.gov

DFARS 216.500(d)(ii) then implements § 3406(h)(2):

“Contracting officers shall not request additional information related to contractor qualifications, unless it is necessary to determine the most highly qualified contractor....”

Notice what the DFARS itself did not do.

It did not amend or qualify the mandatory discussions requirement.

It did not say:

“FAR 36.602-3(c) does not apply if existing qualifications information is sufficient.”

Instead, paragraph (i) says follow FAR 36.6, while paragraph (ii) says don't unnecessarily request additional qualifications information.

That is precisely the harmonious construction I think the statutes require.

9. The DFARS rulemaking history strengthens the point

DoD's explanation of the rule says § 802 did two things:

• § 3406(h)(1) requires qualifications-based selection under FAR 36.6 and chapter 11; and

• § 3406(h)(2) prevents contracting officers from routinely requesting additional qualifications information. GovInfo

DoD did not characterize § 3406(h)(2) as eliminating mandatory Brooks Act discussions.

Indeed, the proposed-rule explanation said the purpose of paragraph (2) was to prevent contracting officers from requiring submission of qualifications information that had already been provided. GovInfo

That sounds much more like an anti-duplication provision than an exception from the Brooks Act selection process.

There is useful historical context as well. The FAR rule implementing the earlier statutory protection for A-E ordering procedures explained that Congress acted to prevent agencies from circumventing Brooks Act procedures through task-order contracting. Acquisition.gov

That makes a construction that silently eliminates one of the Brooks Act's express selection procedures particularly difficult to justify.

10. The Senate-to-enacted-text progression may be the strongest argument

I would put the evolution this way:

Senate version:

Don't routinely request additional information; additional information or discussions may be used when existing information is insufficient.

↓

Enacted version:

Don't routinely request additional information relating to qualifications.

The reference to discussions vanished.

Meanwhile Congress retained paragraph (1):

selection shall be executed in accordance with chapter 11.

And chapter 11 says:

agency shall conduct discussions.

That sequence makes the statutory construction fairly compelling.

Had Congress enacted the Senate version unchanged, USACE's current interpretation would have had a very strong textual foundation.

Congress did not enact that version.

11. I would therefore distinguish three things

This is where I think the conceptual confusion arises.

Activity	§3406(h)(2) effect
Requiring every MATOC holder to submit another complete SF 330	Ordinarily prohibited as routine duplication
Asking for supplemental qualifications information needed to distinguish firms for the particular project	Permitted when necessary
Conducting §1103(c)/FAR 36.602-3(c) discussions about concepts and alternative methods	Still required

The third activity need not entail the second.

For example, the board could tell three firms:

We already have your qualifications information and are not requesting a revised SF 330. We want to discuss your anticipated concepts for accomplishing Project X and the relative utility of alternative technical approaches.

Nothing about that procedure conflicts with § 3406(h)(2).

On the contrary, it appears to satisfy every word of both statutes.

12. There is an additional statutory clue in the phrase “for each proposed project”

This deserves emphasis.

Section 1103(c) doesn't merely establish discussions as part of some generic qualification process. It begins:

“For each proposed project,”

and then requires the agency to evaluate qualifications information and conduct discussions.

Congress in 2022 expressly provided that task orders must be selections executed in accordance with that chapter.

That makes it particularly difficult to argue that discussions conducted years earlier in selecting firms for the MATOC satisfy § 1103(c).

Those earlier discussions concerned admission to the contract pool.

The statute contemplates discussions concerning the proposed project.

That is exactly why § 1103(c) describes the subject of discussions as “anticipated concepts” and alternative methods of furnishing the “required services.”

13. What, then, should we make of the USACE procedure?

This is where I would now modify my previous assessment.

If the 2026 USACE guidance says, as we discussed, that task-order discussions are unnecessary whenever the qualifications information already on file is sufficient to identify the most highly qualified firm, I think there is a serious question whether that instruction is consistent with 40 U.S.C. § 1103(c), 10 U.S.C. § 3406(h)(1), and FAR 36.602-3(c).

The difficulty is not that the Corps is relying on existing SF 330s. Section 3406(h)(2) affirmatively encourages that.

The difficulty is treating “additional qualifications information” and “discussions” as interchangeable procedural devices.

Congress's drafting history actually suggests the opposite.

The Senate proposal expressly linked them.

Congress removed that linkage before enactment.

My bottom line

I would formulate the rule this way:

10 U.S.C. § 3406(h)(2) modifies the information-gathering aspect of qualifications-based selection under the Brooks Act, not the selection procedure itself. A DoD agency ordinarily may not require A-E MATOC holders to resubmit qualifications information already available to the agency. But § 3406(h)(2) does not eliminate the requirement imposed by 40 U.S.C. § 1103(c), incorporated expressly through § 3406(h)(1), that the agency conduct project-specific discussions with at least three of the most highly qualified firms.

I think that is the construction that best satisfies the statutory text, statutory structure, the canon against surplusage/implied modification, the Senate-to-enacted textual history, FAR 36.602-3(c), and DFARS 216.500(d).

Some lawyers are using AI in much the same way.

Thank God for acquisition reform. What would we do without it.

Think of all the bennies we'll get from the RFO.

☹️ 😂 ☠️

1 hour ago, C Culham said:

Do you mean only one response to a solicitation for SF-330's? If so I believe it depends. In DoD a requirement to resolicit does not exist. The RFO DFARS 215.371-4(5) which was in the DFAR as well. Non-DoD one would make an argument that adequate competition was sought and move on to evaluating the technical capabilities of the one firm. If found adequate then move to the next step of negotiation of a price with that firm.

From what I understand, the attorney is claiming that multiple awards are required when awarding IDIQ contracts because Brooks Act procedures are required when awarding task orders. But this claim assumes multiple awards are possible in the first place. What if that's not possible?

This a question for the attorney to answer.

Sorry @FormerFed, didn't know it was already taken. Tried to change but it doesn't give me the option.

Just now, Former Fed said:

Sorry @FormerFed, didn't know it was already taken. Tried to change but it doesn't give me the option.

👍🏻

@Don Mansfield I believe 16.500(d) covers that:

the statuary multiple award preference 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 A/E services using this subpart, provided the selection of contractors and placement of orders are consistent with subpart 36.6.

I'm okay with the using Brooks Act procedures for awarding task orders under a MA contract. However, what we have done in the past is award several single award IDIQ contracts (following the Brooks Act for award) for A/E services. Then award task orders under the single award contracts. Also, multiple attorneys have signed off on the award of single award A/E contracts over the years.

The latest attorney that wrote this decision is now saying that we CANNOT award single award IDIQ contracts for A/E and must award multiple award contracts, totally ignoring 16.500(d) and quoting RFO part 36.202(b)(2) and (3) in her decision.

27 minutes ago, Former Fed said:

@Don Mansfield I believe 16.500(d) covers that:

the statuary multiple award preference 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 A/E services using this subpart, provided the selection of contractors and placement of orders are consistent with subpart 36.6.

I'm okay with the using Brooks Act procedures for awarding task orders under a MA contract. However, what we have done in the past is award several single award IDIQ contracts (following the Brooks Act for award) for A/E services. Then award task orders under the single award contracts. Also, multiple attorneys have signed off on the award of single award A/E contracts over the years.

The latest attorney that wrote this decision is now saying that we CANNOT award single award IDIQ contracts for A/E and must award multiple award contracts, totally ignoring 16.500(d) and quoting RFO part 36.202(b)(2) and (3) in her decision.

Right, but what if it's not possible to make multiple awards? What would she say to that?

@Don Mansfield So if we only get one proposal? Good question.

2 hours ago, Don Mansfield said:

Right, but what if it's not possible to make multiple awards? What would she say to that?

Circular question?

If a solicitation states that there will only be one award (single award IDIQ) is that not the same? Is not the rule that if you state only one award would you not have to issue an amendment to state multiple awards almost like soliciting a new need?

My view.

I issue a solicitation to award one A-E IDIQ contract. I follow RFO 36 (essentially Brooks Act). I evaluate the SF-330's create the list of 3 highly qualified. I go to number 1 and I successfully negotiate a priced IDIQ. Task orders issued will be based on the price(s) (negotiated further, created from priced line items or some combination as so stated in the contract) in the awarded IDIQ. I have meet the intent of RFO 36 as the contractor is the most technically qualified and resulting work by the contractor is based on price. For the Task Orders I am not selecting the contractor based on technical ability I am simply pricing the work they are asked to perform in the Task Order.

My view is based on what I believe to be the general principle that a Task Order issued against a contract is dependent on the parent contract in which it was issued. I say this even though some will point me in the direction of RFO 2.1 and the definition of a contract.

PS - As to an AI response. Since there is an absence of case law on which AI can grasp to assist in a response AI is using discussions like this and crazy conclusions like that of the attorney in my view. Until I am pointed in the direction of case law that states that a single award A-E IDIQ violates the intent of RFO 36 and its supporting statute the Brooks Act I am not a believer in the conclusion reached in the "decision".

On 10/1/2026 at 10:01 AM, Former Fed said:

An attorney wrote a decision that stated the agency has to award multiple contracts for A/E reasoning that RFO 36.102 requires COs to award A/E in accordance with part 36, RFO part 36.202(b)(2) and (3) require agencies to identify at least 3 firms for discussion. So their argument is you cannot do that at the task order level with single awards.

On 10/3/2026 at 5:27 AM, C Culham said:

My conclusion - The attorney has failed to consider the whole of statutory intent and application of the Brooks Act as it is being proposed to be codified in the whole of the RFO.

Staff attorneys do not write decisions. They write opinions. We have not seen the opinion in question. Former Fed has not provided it to us.

Carl, Have you seen the opinion? If not, on what do you base your conclusion about what the attorney considered or didn't consider? And have you read 10 U.S.C. 3406?

Don't rush to judgment. I almost did so, then started thinking and stopped short.

Has anyone participating in this discussion read the Brooks Act, 40 U.S.C. 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.

Notice anything that strikes you as relevant to this discussion?

9 hours ago, Vern Edwards said:

Carl, Have you seen the opinion? If not, on what do you base your conclusion about what the attorney considered or didn't consider? And have you read 10 U.S.C. 3406?

I have based my conclusions on the posts of the OP and my own experience in contracting for A-E services, the experience where I spent several years in what I will call the speciality area of A-E. The OP has stated in the text of the posts "decision" and "there was no case law presented that supported their decision." So not rushing.

2 hours ago, Vern Edwards said:

Has anyone participating in this discussion read the Brooks Act, 40 U.S.C. 1103, Selection procedure:

Yes.

On 10/1/2026 at 10:01 AM, Former Fed said:

someone in charge a few years ago decided that they didn't want us to use single awards (with no basis other than an opinion).

On 10/2/2026 at 7:07 AM, Former Fed said:

Also, the attorney who delivered the opinion is not a procurement attorney and didn't even weigh in on 16.500.

21 hours ago, Former Fed said:

The latest attorney that wrote this decision is now saying that we CANNOT award single award IDIQ contracts for A/E and must award multiple award contracts, totally ignoring 16.500(d)

It looks to me like an attempt to justify a upper level managment decision as opposed to a legal opinion that is well thought out. Vern's question to me being case in point as it seems from information provided that the legal opinion did not include supporting case law and most likely consideration of the Brooks Act.

If an agency wants to rightfully demand something be done then they should just say it and not cloak it in decisions or opinions. I applaud the OP for raising the question for discussion. Isn't that what 1102's are suppose to do?

@C Culham

27 minutes ago, C Culham said:

If an agency wants to rightfully demand domething be done then they should just say it and not cloak it in decisions or opinions. I applaud the OP for raising the question for discussion. Isn't that what 1102's are suppose to do?

Yes, and he was especially interested in mine. And aren't 1102s supposed to think things through when they answer.

After thinking things through I cannot conclude that the legal "decision" he complained about is wrong without seeing it, which I have not, and neither have you.

I can also say that your demand for case law misses the mark. If there is no case law--and I have not found any--it may mean only that the issue has not been litigated. Nevertheless, since the issue has been raised a CO must try to answer. The usual way to do that is through statutory and regulatory language and history.

Let's start with a close reading of statutory language, since it prevails over regulatory language and prior practice based on regulatory language.

Since you have read 40 U.S.C. 1103, which is quite short, do you see anything therein that may be pertinent to the question of its application to fair opportunities under MATOCs?

4 minutes ago, Vern Edwards said:

Yes, and he was especially interested in mine.

My apologies if you felt I was stepping on your toes.

5 minutes ago, Vern Edwards said:

which I have not, and neither have you.

Agreed, just trusting the representation via his statements of what it says.

5 minutes ago, Vern Edwards said:

it may mean only that the issue has not been litigated.

Agreed but my experience suggests that if A-E firms felt doing a single award A-E IDIQ was in violation they would have been screaming a long time ago. For reference I did them for the USACE in the 1990's.

7 minutes ago, Vern Edwards said:

The usual way to do that is through statutory analysis and legislative history.

My position as well which it seems the lawyer has not done. My conclusion on what I have seen so far. If the letter is ever provided I reserve the right to change my mind.

9 minutes ago, Vern Edwards said:

Let's start with statutory language, since it prevails over regulatory language. Since you have read 40 U.S.C. 1103, which is quite short, do you see anything therein that may be pertinent to the question of its application to fair opportunities under MATOCs?

Yes "project". Language carried to the FAR and RFO as well. An issue that I did hand ringing on when I was employeed as an 1102 I mght add. The RFO (and previously the FAR) does not define the term. So what is a project? I would suggest we could drag out a long discussion regarding same. Absent case law to conclude how it applies to a single award A-E IDIQ it would seem to me that it just depends.

A PS -

It is clear that the OP's agency has made a decision as to use. The most concerning thing to me is that it hinders the ability of a 1102 to be innovative within the context of the RFO to get the mission accomplished. I would suggest that from industry to the Federal practitioner some like the use of a A-E single award IDIQ and some do not but why block its use if it applies this (below) standard (emphasis added). Ref. RFO 1.102!

"exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority."