COFPAES introductory webinar on Federal government contracting for professional in A/E related activities. Focused on private sector firms interested in expanding business through Federal contracting.
Water Industry Process Automation & Control Monthly - April 2024
COFPAES - Introduction to Federal AE Contracting
1. An Introduction to
Federal A/E Contracting
John PalatielloJohn Palatiello
COFPAESCOFPAES
June 25, 2014June 25, 2014
2. 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.
3. 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.
4. 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
5. 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 byIf 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.
6. Where Do I Find The Work?Where Do I Find The Work?
7. Where Do I Find The Work?Where Do I Find The Work?
www.fpd
8. 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.
9. 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.
10. 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
12. 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.”
13. 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)?
14. 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;
15. Brooks Act DefinitionBrooks Act Definition
• (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
16. Brooks Act DefinitionBrooks Act Definition
• (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.
28. 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))
29. 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:
30. FAR Definition –
Surveying & Mapping
• Professional surveying and mapping services of an
architectural or engineering nature.
31. 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.
32. 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.
33. 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)
34. 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
37. Grants & State/Local Contracts
• Airports
• Highways
• Mass Transit
• Superfund (prime and sub)
• Water/Wastewater - State Revolving Fund
(SRF)
38. Grants & State/Local Contracts
• Most states have a “Mini-Brooks Act”
• QBS is in the ABA Model Procurement Code
for State and Local Government
39. “Spread the Work” (DFARS)
• DFARS 36.602; PGI 236.602
• DoD only; volume of work as a tie-breaker
40. 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.
41. Do’s & Don’tsDo’s & Don’ts
• Don’t Use GSA Schedule for FAR Part 36 A/EDon’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.
42. Do’s & Don’tsDo’s & Don’ts
• Don’t Use GSA Schedule for FAR Part 36 A/EDon’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.
43. 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.
45. 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
46. Small Business Issues
• 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.
47. Small Business Issues
• 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.
48. 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
49. Licensing Issues
• Agencies must comply with, not preempt,Agencies must comply with, not preempt,
State lawState law
50. Licensing Issues
““The Brooks Act, as amended, applies to allThe Brooks Act, as amended, applies to all
traditional surveying work that istraditional surveying work that is
performed by members of the architecturalperformed by members of the architectural
and engineering profession (and individualsand engineering profession (and individuals
in their employ) including licensedin their employ) including licensed
surveyors”surveyors”
GAO, White Shield, B-235967, October 30, 1989GAO, White Shield, B-235967, October 30, 1989
51. 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
52. Licensing Issues
““the determination of Brooks Act applicabilitythe determination of Brooks Act applicability
should be made initially on a case-by-caseshould be made initially on a case-by-case
basis by the contracting officer inbasis by the contracting officer in
accordance with the definition in the 1988accordance 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
53. Entering the Federal Market
• Team, Partner, SubcontractTeam, Partner, Subcontract
