There are a number of locations where the announced A-76 studies include positions engaged in providing architect-engineering services. This requires that those services be included in the performance work statement (PWS) that could result in a competitively awarded contract resulting from an A-76 study. Procurement of A&E functions are governed by the Brooks Act. Essentially, the Government cannot acquire such services through a competitive procurement, and "competitive procurement" is essential for a completed A-76 study. Accordingly, any such positions whose services are governed by the Brooks Act should be removed from study.

A&E services are not acquired pursuant to the competitive procurement procedures established in FAR 13 - 15. Instead, A&E services are acquired competitively under special statutory procedures described at FAR 36.6. Unlike competitive source selection procedures, a commercial A&E selection is made after evaluating the competence and qualifications of firms listed in a file maintained by the Government agency. There is no solicitation and price is not a factor in selection. This process, which must be followed when acquiring A&E services, is not compatible with the A-76 cost comparison process. For instance, there could never be a PWS to form the basis for a contractor vs. Government competition, because A&E requirements are not solicited prior to source selection. Secondly, source selections are made in A&E acquisitions without considering price, and in a cost comparison the Government is evaluated solely on the basis of price.

Therefore, any positions associated with "Brooks Bill" type should be excluded from A-76 cost comparison studies. That would include the professional and non-professional effort required to accomplish such work, when as the two mutually support each other in accomplishing "Brooks Bill" work and are not severable for separate contracting. Applicable portions of FAR 36.6 follow.

36.600 -- Scope of Subpart. This subpart prescribes policies and procedures applicable to the acquisition of architect-engineer services.

36.601-1 -- Public Announcement.

36.601-3 -- Applicable Contracting Procedures

(b) Sources for contracts for architect-engineer services shall be selected in accordance with the procedures in this subpart rather than the solicitation or source selection procedures prescribed in Parts 13, 14, and 15 of this regulation.

(c) When the contract statement of work includes both architect-engineer services and other services, the contracting officer shall follow the procedures in this subpart if the statement of work, substantially or to a dominant extent, specifies performance or approval by a registered or licensed architect or engineer. If the statement of work does not specify such performance or approval, the contracting officer shall follow the procedures in Parts 13, 14, or 15.

36.601-4 -- Implementation.

(a) Contracting officers should consider the following services to be "architect-engineer services" subject to the procedures of this subpart:

(1) Professional services of an architectural or engineering nature, as defined by applicable State law, which the State law requires to be performed or approved by a registered architect or engineer.

(2) Professional services of an architectural or engineering nature associated with design or construction of real property.

(3) Other professional services of an architectural or engineering nature or services incidental thereto (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) that logically or justifiably require performance by registered architects or engineers or their employees.

36.606 -- Negotiations.

(a) Unless otherwise specified by the selection authority, the final selection authorizes the contracting officer to begin negotiations. Negotiations shall be conducted in accordance with Part 15 of this chapter, beginning with the most preferred firm in the final selection (see 15.404-4(c)(4)(i) on fee limitation and the determination and findings requirement at 16.306(c)(2) for a cost-plus-fixed-fee contract).

(f) If a mutually satisfactory contract cannot be negotiated, the contracting officer shall obtain a written best and final offer from the firm, and notify the firm that negotiations have been terminated. The contracting officer shall then initiate negotiations with the next firm on the final selection list. This procedure shall be continued until a mutually satisfactory contract has been negotiated. If negotiations fail with all selected firms, the contracting officer shall refer the matter to the selection authority who, after consulting with the contracting officer as to why a contract cannot be negotiated, may direct the evaluation board to recommend additional firms in accordance with 36.602.

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