cofpaes - introduction to federal ae contracting

An Introduction toFederal A/E Contracting

John PalatielloJohn PalatielloCOFPAES COFPAES

June 25, 2014June 25, 2014

A Word About Antitrust

• COFPAES, and its members, cannot fix prices, allocate markets, prescribe how firms compete or otherwise restrain trade

• COFPAES, organizations, and individuals have a Constitutional right to advocate laws, regulations, government policies and government-mandated practices, including those which government prescribes for private firms, including QBS.

What is COFPAES• Council on Federal Procurement of Architectural & Engineering

Services• AIA, ASCE, NSPE, NSPS, MAPPS• Provides the design community with a common voice on federal

procurement law and regulations• Preserve, protect, defend, promote the qualifications based

selection (QBS) process codified in the “Brooks Act” (40 USC 1101, FAR 36.6)

• Focused on ensuring quality and competence in the procurement of professional A/E (including surveying and mapping) services. COFPAES serves the American public by assisting Congress and federal agencies with policies to ensure that projects to satisfy the building, infrastructure, resource, defense, and security needs of the Nation are conducted in an efficient and quality manner.

About our Presenter

• John Palatiello– COFPAES Administrator– A/E Association

Executive for 30+ years– Frequent author,

instructor on A/E contracting

– Witness before Congress on A/E contracting

Where Do I Find The Work?Where Do I Find The Work?

• Association ConferencesAssociation Conferences• Federal Business Opportunities (“FedBizOps”) Federal Business Opportunities (“FedBizOps”)

(www.FBO.gov)(www.FBO.gov)• Agency Web SitesAgency Web Sites• Federal Procurement Data System (FPDS)Federal Procurement Data System (FPDS)– www.fpds.govwww.fpds.gov

• If the first time you learn about a project is by If the first time you learn about a project is by reading about it in FedBizOpps, it is too late.reading about it in FedBizOpps, it is too late.


www.fpd

QBS ProcessQBS Process

or

1. Agency publicly announces its requirements for A/E services

2. Firms wishing to be considered submit Standard Form 330 to the agencies requesting assistance.

4. The Evaluation Boards will develop a Pre-selection list of the maximum practicable number of qualified firms and the list shall be approved by the head of the agency.

6. Negotiations shall be conducted with the first selected firm (from the pre-selection list) to determine the scope of work and for a price that is fair and reasonable and not in excess of the government estimate.

3. Agency Evaluation Boards will review and evaluate firm’s qualifications in terms of its:•Professional qualifications•Specialized experience and technical competence•Capacity to complete work in time•Past performance•Knowledge of locality of project•Acceptability under other appropriate evaluation criteria

5. An independent governmental estimate of the cost of services shall be prepared for each proposed contract or contract modification

6a. Contract is awarded

6b. If a price below the government estimate cannot be negotiated then the negotiations are terminated and a proposal is requested from the firm next in order of qualifications.

QBS ID/IQ Process

1. Agency has a need for A/E services.

2. Agency submits task request to one of its ID/IQ firms, provides a scope of work and negotiates a task order for man hours based on fees negotiated in base contract

3. Federal agency deploys the firm(s) to its area of need to provide the scope of services agreed to in the task order negotiation.

How Do I Compete?How Do I Compete?

• Submit Standard Form 330Submit Standard Form 330• http://www.gsa.gov/portal/forms/download/116486http://www.gsa.gov/portal/forms/download/116486

SF 330SF 330

Is QBS A Competitive Procedure?

10 U.S.C. § 2302: Definitions (2) The term ''competitive procedures'' means procedures under which the

head of an agency enters into a contract pursuant to full and open competition. Such term also includes:

(A) procurement of architectural or engineering services conducted in accordance with chapter 11 of title 40;

41 U.S.C. § 259: Definitions As used in this subchapter – (b) The term ''competitive procedures'' means procedures under which an

executive agency enters into a contract pursuant to full and open competition. Such term also includes -(1) procurement of architectural or engineering services conducted in accordance with title IX of this Act (40 U.S.C. 541 et seq.)

Senator Gurney, 118 Cong. Rec. 36185 (1972)“Any Federal procurement officer…will tell you that competition based on

professional-technical qualifications is every bit as hot and demanding as competition based upon price.”

Did You Know?

• Agencies such as NGA (GGI), USGS (GPSC), NOAA (CSC), USACE (TCX) each get more competition using QBS, than those that use price competition, such as USDA (NAIP)?

Brooks Act DefinitionBrooks Act Definition

• 40 U.S.C. 1102 (2)• The 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.

Federal Acquisition Regulation (FAR)Federal Acquisition Regulation (FAR)FAR Part 36.6FAR Part 36.6

Negotiation

• Negotiations shall be conducted in accordance with Part 15 (FAR 36.606)

ID/IQ Task Orders

• (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.

• (FAR 16.500(d))

FAR Definition – Surveying & Mapping

• (FAR) 48 CFR 36.601-4(a)(4)• Contracting officers should consider the following

services to be "architect-engineer services" subject to the procedures of this subpart:

FAR Definition – Surveying & Mapping

• Professional surveying and mapping services of an architectural or engineering nature.

FAR Definition

• Surveying is considered to be an architectural and engineering service and shall be procured pursuant to 36.601 from registered surveyors or architects or engineers.

FAR Definition

• Mapping associated with the research, planning, development, design, construction or alteration of real property is considered to be an architectural or engineering service and is to be procured pursuant to 36.601.

FAR Definition

• However, mapping services that are not connected to traditionally understood or accepted architectural and engineering activities, are not incidental to such architectural and engineering activities or have not in themselves traditionally been considered architectural and engineering services shall be procured pursuant to provisions in parts 13, 14, and 15. (1999)

USACE Definition EFARS

• Only agency to promulgate a definition of surveying and mapping services for the purposes of Brooks Act application

• http://www.usace.army.mil/Portals/2/docs/EFARS.pdf

Grants & State/Local Contracts


• Airports• Highways• Mass Transit• Superfund (prime and sub)• Water/Wastewater - State Revolving Fund

(SRF)


• Most states have a “Mini-Brooks Act”• QBS is in the ABA Model Procurement Code

for State and Local Government

“Spread the Work” (DFARS)

• DFARS 36.602; PGI 236.602 • DoD only; volume of work as a tie-breaker

6-Percent Fee Limitation

• 10 U.S.C. 4540, 7212, and 9540

• Covers the production and delivery of “designs, plans, drawings, and specifications.”

• Does not apply to the cost of field investigation, surveys, topographical work, soil borings, inspection of construction, master planning, and similar services not involving the production and delivery of designs, plans, drawings, and specifications.

Do’s & Don’tsDo’s & Don’ts

• Don’t Use GSA Schedule for FAR Part 36 A/E Don’t Use GSA Schedule for FAR Part 36 A/E ServicesServices– Important Notice to Federal Agencies: You are cautioned

that this schedule DOES NOT cover Architect or Engineering services that fall within the purview of the Brooks Act or FAR Part 36. For services of that type, you must contact GSA’s Public Building Service (PBS) at (202) 501-1888. Inappropriate use of the contract may subject the contractor/agency to penalties provided by statute and regulation.

Do’s & Don’tsDo’s & Don’ts

• Don’t Use GSA Schedule for FAR Part 36 A/E Don’t Use GSA Schedule for FAR Part 36 A/E ServicesServices– Important Notice to GSA Contractors: You are cautioned

to closely review any task order request to ensure that requirements do not fall within the purview of the Brooks Act or FAR Part 36. Inappropriate use oaf the contract may subject the contractor/agency to penalties provided by statute and regulation.

Do’s & Don’tsDo’s & Don’ts• Pubic Law 108-136, div. A, title XIV, Sec. 1427(b), Nov. 24, 2003, 117 Stat. 1670,

provided that: "Architectural and engineering services (as defined in section 1102 of title 40, United States Code) shall not be offered under multiple-award schedule contracts entered into by the Administrator of General Services or under Government-wide task and delivery order contracts entered into under sections 2304a and 2304b of title 10, United States Code, or sections 303H and 303I of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253h and 253i) unless such services - "(1) are performed under the direct supervision of a professional architect or engineer licensed, registered, or certified in the State, territory (including the Commonwealth of Puerto Rico), possession, or Federal District in which the services are to be performed; and "(2) are awarded in accordance with the selection procedures set forth in chapter 11 of title 40, United States Code."

• FAR 8.403(c) Applicability. In accordance with section 1427(b) of Public Law 108-136, for requirements that substantially or to a dominant extent specify performance of architect-engineer services (as defined in 2.101), agencies— (1) Shall use the procedures at Subpart 36.6; and (2) Shall not place orders for such requirements under a Federal Supply Schedule.

Design-BuildDesign-Build

• 41 USC 3309 for civil agencies• 10 USC 2305(a) for Defense• FAR 36.3

Small Business Issues

• Size StandardsSize Standards– Engineering - $14 MEngineering - $14 M– Surveying & Mapping - $14 MSurveying & Mapping - $14 M– Architectural - $7 MArchitectural - $7 M– Landscape Architectural - $7 MLandscape Architectural - $7 M

• Gross annual receipts, prior 3 year average, Gross annual receipts, prior 3 year average, includes all affiliatesincludes all affiliates

• http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdfhttp://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf


• Subcontracting– For procurement actions expected to exceed

$500,000 the winning contractor is required to provide the agency contracting officer with a written plan that establishes a small business subcontracting goal.


• On a small business set aside, the small business prime must perform at least 50 percent of the cost of the contract incurred for personnel with its own employees.

Subcontracting Issues

• On a Corps of Engineers contract, “the Government may and should strongly encourage contractors to use a qualifications -based selection (QBS) approach (instead of bidding) for selecting subcontractors for surveying, mapping and other professional A-E services”EP 715-1-7 July 31, 2002

Licensing Issues

• Agencies must comply with, not preempt, Agencies must comply with, not preempt, State lawState law

Licensing Issues

““The Brooks Act, as amended, applies to all The Brooks Act, as amended, applies to all traditional surveying work that is traditional surveying work that is performed by members of the architectural performed by members of the architectural and engineering profession (and individuals and engineering profession (and individuals in their employ) including licensed in their employ) including licensed surveyors”surveyors”

GAO, White Shield, B-235967, October 30, 1989GAO, White Shield, B-235967, October 30, 1989

Licensing Issues• Numerous States define a variety of mapping and

photogrammetric services (e.g. orthophoto) as the practice of surveying and require a licensed surveyor to perform such services

Licensing Issues

““the determination of Brooks Act applicability the determination of Brooks Act applicability should be made initially on a case-by-case should be made initially on a case-by-case basis by the contracting officer in basis by the contracting officer in accordance with the definition in the 1988 accordance with the definition in the 1988 amendment”amendment”

GAO, Forest Service, USDA, B-233987, July 14, 1989GAO, Forest Service, USDA, B-233987, July 14, 1989

Entering the Federal Market

• Team, Partner, SubcontractTeam, Partner, Subcontract

Giuseppe saved $1,000 by low bidding his

geotechnical/soils engineering

Harry saved $1,000 by low bidding his mapping

Tom saved $1,000 by low bidding his surveying

Questions?

John Palatiello(703) 787-4748

[email protected]