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Hello all. Wanted to get your thoughts on the following:

Requirement: Commissioning Services of new building construction (no federal or policy definition, so I provide the following):

 - Building Commissioning and Retro-Commissioning Services (peterbassoassociates.com) - Commissioning (Cx) is a process that checks and documents the design, installation and, testing of a building's systems according to the requirements of the owner. It includes training of the owner's facilities staff in order to understand and operate the building systems efficiently."

Pub.L. No. 100-656, Sec. 742, 102 Stat. 3853 (1988):

40 USC § 541(3) - T"he term "architectural and engineering services" means-

(A) professional services of an architectural or engineering nature, as defined by State law, if applicable, which are required to
be performed or approved by a person licensed, registered, or certified to provide such services as described in this paragraph;

(B) professional services of an architectural or engineering nature performed by contract that are associated with research,
planning, development, design, construction, alteration, or repair of real property; and

(C) such other professional services of an architectural or engineering nature, or incidental services, which members of the
architectural and engineering professions (and individuals in their employ) may logically or justifiably perform
, including
studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program
management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering,
drawing reviews, preparation of operating and maintenance manuals, and other related services."

The definition above makes it so vague that it it is hard to tell. So many things can fall under "members of the A&E professions (and individuals in their employ)."

Does the chance that a A&E firm, under a solicitation posted under NAICS 541350, would quote/provide an offer make the procurement subject to the Brooks Act?

Edited by Constricting Officer
Typo
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2 hours ago, Constricting Officer said:

NAICS 541650

Typo?

2 hours ago, Constricting Officer said:

Does the chance that a A&E firm, under a solicitation posted under NAICS 541650, would quote/provide an offer make the procurement subject to the Brooks Act?

In my research it does not seem like a "chance" but a fact that Cx is performed by members of the
architectural and engineering professions (and individuals in their employ).
  Reference for example the American Society of Heating, Refrigeration and Air-Conditioning Engineers has a standard regarding Cx.   https://www.ashrae.org/news/esociety/updated-commissioning-guideline#:~:text=ASHRAE Guideline 0-2019%2C The,and consistent approach to commissioning. 

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As a licensed professional civil engineer, I can tell you that commissioning services for the purposes of checking and documenting the design, installation and, testing of a building's systems according to the requirements of the owner would generally require the services of a licensed professional engineer or architect depending upon the items or systems being  commissioned, tested or inspected. In the US, the licensed professional (designer(s) of record, who designs buildings and systems has certain legal responsibilities and potential liabilities for the adequacy of design to applicable codes and standards and to the owner’s stated functional requirements for the various systems and facilities. In addition there may be potential liability for oversight of construction, if any was required of the designers of record, to comply with the design, material requirements, etc.

There may be nuances or other exceptions applicable to government employees under the law for Design and construction phase services.

But if faulty, non-compliant, substandard or otherwise deficient commissioning or testing services affect the conformance with design, codes, standards, etc. or performance of the constructed systems or facilities, it could affect the responsibilities and liabilities of the various parties and stakeholders including warranties, guaranties, etc. 

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8 hours ago, Constricting Officer said:

construction phase services,

One can include the commissioning and/or other construction phase services in the scope of the design contract or as an optional phase of the design contract. No new a/e services competition required in that event.

As an alternative, many USACE Districts have ID/IQ contracts for a variety of construction phase services.

A problem with using a separate contractor for commissioning may be having to become familiar with the design intent and basis of design, and having to become familiar with the all the shop drawings and submittals, codes, etc. that the designer(s) of record would already know.

It would be dismaying to me if the organization had no acquisition plan for the lifecycle of the design and construction of a project and learn well into the construction phase that the services will be required. There probably would be duplicate efforts and associated time and costs for a separate firm to have access to and learn all of the info mentioned above.  

 

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11 hours ago, Constricting Officer said:

Does the chance that a A&E firm, under a solicitation posted under NAICS 541350, would quote/provide an offer make the procurement subject to the Brooks Act?

No.  And regardless, that is the wrong question.

The right question is whether building commissioning services are A-E services.  That is a YES or NO question.  How do you answer that question?

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On 7/13/2022 at 4:26 PM, joel hoffman said:

As a licensed professional civil engineer, I can tell you that commissioning services for the purposes of checking and documenting the design, installation and, testing of a building's systems according to the requirements of the owner would generally require the services of a licensed professional engineer or architect depending upon the items or systems being  commissioned, tested or inspected. In the US, the licensed professional (designer(s) of record, who designs buildings and systems has certain legal responsibilities and potential liabilities for the adequacy of design to applicable codes and standards and to the owner’s stated functional requirements for the various systems and facilities. In addition there may be potential liability for oversight of construction, if any was required of the designers of record, to comply with the design, material requirements, etc.

Thank you - May I quote you on this?  Best definition I have seen.

On 7/13/2022 at 11:57 PM, ji20874 said:

The right question is whether building commissioning services are A-E services.  That is a YES or NO question.  How do you answer that question?

The CO makes the best decision, with the info on hand at the time, and move on with the procurement. The 1988 definition fits commissioning services. If there is something else, please enlighten me. 

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2 hours ago, Constricting Officer said:

Thank you - May I quote you on this?  Best definition I have seen.

Yes, within context of the answer. For licensed PE’s on general construction.

I’m attaching a Construction Bulletin from the Army Corps of Engineers for DoD Army Construction projects, which references ASHRAE standards plus a whole lot more for Total Building Commissioning Process for USACE Projects.

https://www.wbdg.org/FFC/ARMYCOE/COEECB/ARCHIVES/ecb_2015_6.pdf

It imagine that other DoD design and construction agencies may have their own procedures. 

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If you are the contracting officer, and you made your YES answer based on the definition, then full speed ahead.  I think you will be glad you can use the A-E procedures instead of FAR Part 13, 14, or 15 -- if you use them vigorously, those procedures are powerful and almost certainly will result in the best possible contract and contractor.

Once you make a decision, you might learn some new things from others.  Those new insights may or may not cause you to change your mind.

But, it sounds like you already released a solicitation -- you might have to cancel it if you want to re-start as an A-E procurement.

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Those procedures aren’t applicable if you need to hire an A/E for total building commissioning 

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58 minutes ago, joel hoffman said:

Those procedures aren’t applicable if you need to hire an A/E for total building commissioning 

If this is true, it seems you should have said it a long time ago.  

An earlier post of yours recommends the use of professional engineers for such work, and construction phase services are included in the definition of A-E.  

Anyway, Joel, help me out a little -- is there a citation or case that prohibits use of A-E procedures for total building commissioning?  Inquiring minds want to know...

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2 hours ago, ji20874 said:

If this is true, it seems you should have said it a long time ago.  

An earlier post of yours recommends the use of professional engineers for such work, and construction phase services are included in the definition of A-E.  

Anyway, Joel, help me out a little -- is there a citation or case that prohibits use of A-E procedures for total building commissioning?  Inquiring minds want to know...

Not sure what you are saying. I meant that part 13,14 or 15 procedures aren’t applicable to acquiring A-E services for whole building commissioning - unless the commissioning is a requirement of a design-build contract for a project. 

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