By Anonymous on Monday, April 09, 2001 - 02:16 pm:

My office is in disagreement over whether a certain action violates the Brooks Act. Basically, my contracting office has been asked to obtain a proposal for a task order from an A-E firm to which we have awarded an indefinite delivery contract for A-E services (hydrologic modeling services). What we have been asked to do with the proposal is where, I feel, we are being asked to cross the line.

We have been asked to provide our A-E's proposal to our project manager for comparison with a
State A-E contractor's proposal. Both firms, the State's contractor and ours, will provide a proposal for same work and be compared to each other. The comparison will include price.

My agency typically enters into cost shared project agreements with state agencies. The project agreements spells out what each agency will be responsible for, e.g., A-E services and design, construction, maintenance, etc. They are usually written on a 25/75 cost share rate (25% state and 75% federal).

I am firmly against this action and feel it violates the Brooks Act. Others in my office don't agree. Could someone else provide some insight as to what would be considered proper here?

By Anonymous on Monday, April 09, 2001 - 02:21 pm:

I forgot to add that the comparison will result in award of a contract, either under a federal contract awarded by my agency or a State contract awarded under our sponsors procedures.

By Anon Zed on Monday, April 09, 2001 - 06:06 pm:

Anonymous:

Why do you feel the action would violate the Brooks Act? Is it because the selection criteria would include price? Is there any other reason?

By joel hoffman on Monday, April 09, 2001 - 08:20 pm:

http://www4.law.cornell.edu/uscode/40/541.html is the link to the Public Law concerning A-E selections.

The intent of the law is that A-E selections are to be based on qualifications criteria, specifically not priced based criteria. Original intent was not to jeopardize the public safety due to price cutting pressures.

Happy Sails! Joel

By Anonymous on Tuesday, April 10, 2001 - 09:09 am:

40 U.S.C. 542 states that it is the policy of the Federal Government "...to negotiate contracts for architectual and engineering services on the basis of demonstrated competence and qualification for the type of professional services required and at fair and reasonable prices." Based on this language, I am thinking that to have an A-E submit a proposal, negotiate a price with that A-E, and then compare that price with another A-E's price for the same requirement for the purpose of awarding a contractact is, in my opinion, a violation of the Brooks Act.

What I feel is being done here is a comparison of price for the award of a contract. The lowest price wins. To be within the Brooks Act I would think the prices of the two A-E's could not be compared. I would think a comparison based just on competence and qualification factors would keep it legal.

If the same situation was applied in a Federal to Federal scenario, instead of Federal to State, then which ever Federal agency awarded a contract, or task order against their contract, would be in violation of the Brooks Act. They would be making award based on something other than an A-E's competence and qualification. It would be the same thing as having a multiple awarded contract and asking for proposals on the same requirement from the awardees and awarding a task order to the lowest price.

Is my thinking incorrect?

By Anon Zed on Tuesday, April 10, 2001 - 03:35 pm:

Anonymous:

I think that your interpretation of the Brooks Act is correct, as indicated by Joel Hoffman. But the Brooks Act does not apply to awards made by state governments.

By Rich Johnson on Tuesday, April 10, 2001 - 03:43 pm:

Anonymous:

The note you added concerning award of either a federal or state contract conflicts with the facts provided in your original question. The original question comtemplates that if the award is made by the feds, it will be a task order under an existing contract. The added note indicates a contract will be awarded. There is a big difference. Is it task order or contract?

By Anonymous on Tuesday, April 10, 2001 - 06:01 pm:

Rich, its a task order. And Zed, whether state or federal my thinking is that in my situation, if a federal party compares it's price to any other price (state, federal, private) for the same requirment, the law is being broken. The award of the "task order" would be based on price comparison.

By the time the proposal is provided to the project manager for comparison to the State's "task order", the determination of fair and reasonable price would have already been made. So why would we not award a contract? The answer would be because the State's contractor submitted a lower price than ours. The federal contractor wouldn't receive a contract soley due to price competition. I don't think it matters who that competition was with, just that there was price competition under an A-E requirement.

Have I swayed anyone to my side or am I fighting a losing battle? I would like to present my project manager with an informed decsision. Any advice is well recieved.

By Anon Zed on Tuesday, April 10, 2001 - 08:17 pm:

Anonymous:

I'm not sure I understand what the deal is between the state and your agency or how it works, but the Brooks Act applies to awards made by Federal agencies (including issuance of task orders) and not to awards made by state agencies. Thus, I do not agree with you that a state agency's decision to make an A-E award based on a price comparison would violate the Brooks Act.

By Rich Johnson on Wednesday, April 11, 2001 - 07:59 am:

Anonymous:

I can argue that in your case you have not violated the Brooks Act. However, you will have circumvented the Act and there is a fine line.

The argument would be as follows: 1. You make the comparison and the State awards a contract or order. No violation because the State doesn't have to comply with the Act. 2. You make the comparison and the Feds award. No violation because you are awarding a task order to a contractor that was selected using Brooks Act procedures.

My advice is to get an opinion, in writing, from Counsel. If Counsel's opinion is that there is no violation I would proceed. However, I'll qualify that by saying that you should present the facts to your AE. If they agree to provide a proposal proceed. It may very well be that your AE will object to having his prices released to the State.

By joel hoffman on Wednesday, April 11, 2001 - 08:22 am:

For the Federal contract, the clear intent of the law is to not compete for work, based on price - negotiate a fair and reasonable effort. I would argue that the A-E is entitled to compensation for preparing a proposal, if it doesn't get the work, plus there may be a violation of the Act. Happy Sails! Joel

By formerfed on Wednesday, April 11, 2001 - 08:43 am:

I don't want to split hairs here, but are you really competing among the two firms? Or, in other words, do the firms know that the state is seeking a proposal for the same work?

Here's a way of looking at this differently. You office awarded an IDIQ contract for services using the Brooks Act? There wasn't price competition for award. The state did something similar. I assume the scope of both are for some broad level of support. Now you have a need for services. You get your contractor to submit a quote. The state does the same. You and the state have joint responsibility for the project and share in the cost. You then make a decision on which firm and which contractual vehicle to used based on such things as budgetary matters.

As long as there isn't direct competition where each other knows of the existence and involvement of the other, I see it can be done. It's a question of which party (federal vs state) has the best business arrangement.

By Anon Zed on Wednesday, April 11, 2001 - 09:01 am:

Anonymous:

Some "political" advice: Make your case to the appropriate official in your agency as rationally as you can and then leave it alone, unless somebody asks you to sign the task order. Keep pushing the issue and you may discredit yourself.

Interpretations of law and regulation are a dime a dozen and they come in all flavors. Strictly speaking, the Brooks Act itself does not expressly prohibit consideration of price in the selection of A-E contractors. (That should provoke some discussion.) The procedures in FAR Subpart 36.6 do not include consideration of price, but they do not expressly prohibit such consideration. (That, too, should provoke some discussion.) The GAO says that the A-E procedures "effectively" eliminate price competition, but consideration of price does not necessarily equate to price competition. One could look at price merely to determine its "acceptability" in terms of project budget. See FAR 36.602-1(a)(6).

Some A-E selection types are now going to stomp all over me.

By Anonymous on Wednesday, April 11, 2001 - 02:24 pm:

Thanks all and if you're wondering, I think I'll state my position, as recommended by Zed, and if push comes to shove get a legal opinion, as recommended by Rich. Thanks again.

By joel hoffman on Wednesday, April 11, 2001 - 06:27 pm:

My last point will be to state that if you ask an A-E contractor to prepare a proposal for a task order under an existing contract, then I beleive you have an obligation to negotiate a fair and reasonable cost for the task. If you simply use it for price shopping comparison with another contract source, the A-E will have grounds for seeking sompensation.

There are numerous cases dealing with this topic on construction contracts. The contractors have been entitled to reimbursement, after being requested to submit a proposal and the Government dropped the work or used the proposal for bid shopping purposes, unless the contract provided for competitive pricing. Happy Sails! Joel

By ex-fed on Wednesday, April 11, 2001 - 07:41 pm:

Anon Zed seems to be on the right track for a reasonable course of action. I'm sure A-E traditionalist and the A-E "lobby" will shriek a bit, but Rich and Formerfed also make interesting points here.

As for me, I understand the "safety" aspect of the act, but we also have even larger safety issues at stake without these special provisions. Shall we expand the Brooks Act to cover all aircraft that might fall from the sky and kill innocent groundlings because there was a cost factor in their competition? Let's expand it to weapon systems. They might explode somewhere unintended because cost was a factor.

This seems to be more the work of special pleadings than rationality. Cost is a factor and we all recognize that at some point even safety's cost has a limit. I think it exceedingly strange that some insist on environmental mattes having rather restrictive cost benefit requirements when the cost in the sense of letting it go can actually be disaster. Yet we eliminate cost/safety tradeoff analysis from construction? Politics yes, but logical nonsense.

By formerfed on Thursday, April 12, 2001 - 08:50 am:

Ex-Fed,

That is an interesting point. The Brooks Act was passed in 1972 when sealed bidding was the preference and almost all awards were based chiefly on price/cost. Most services today are acquired using "best value" methodology and, as you point out, saftey is often as critical as with construction. Maybe it's time for Congress to revisit this Brooks Act as it did with the other IT one.

By Anon Zed on Thursday, April 12, 2001 - 09:03 am:

formerfed:

On the other hand, a case can be made that the Brooks Act procedures are better for the procurement of professional services than source selection procedures based on price competition. Under some circumstances, price competition can result in inferior service. When contracting on a cost-reimbursement basis, price competition can produce unrealistically low cost estimates. Maybe it's better to select some service contractors on the basis of qualifications and then negotiate a fair and reasonable price one-on-one. Such one-on-one negotiations may produce better mutual understanding of the requirement and the costs of performance than "discussions" with offerors in a competitive range and final proposal revisions.

By formerfed on Thursday, April 12, 2001 - 09:26 am:

Anon Zed,

I completely agree. The absolute "non-compete on price" element of the Brooks Act appears outdated.

As far as your suggestion about using Books Act procedures for the acquisition of professional services, I couldn't agree more. In some situations, it's probably the best way to go. Here's an example. An agency wants to bring a contractor on board for some project involving professional type services. The overall need in expressed at a high level, statement of objectives or business outcome scenario. They want to meet with several companies, explain the project, and get solutions from industry. They also want industry to be wide open and innovative in their approaches. The traditional competitive process requires price/cost to be part of the evaluation. So the agency is faced with coming up with a more definitive statement of work or develop some hypothetical level of effort that everyone must bid against. This may not have even a close relationship with final price.

So a Brooks Act type procedure allows the agency to select the best approach/qualified source and sit down to negotiate a contract based on the specific solution offered. This doesn't artificially or arbitrarly restrict solutions based on having to evaluate price upfront. Maybe this isn't suited for all acquisitions, but it's a tool that should be available when circumstances call.

By ex-fed on Thursday, April 12, 2001 - 12:15 pm:

I think someone, perhaps Anon Zed in another "life," long ago (sounds like Star Wars) in another forum argued quite coherently that the A-E process would be an excellent model for professional services. With some of the modifications mentioned I've long agreed with that argument. In the more complex areas of professional services, particularly design and build of almost anything beyond actual COTS, a modified A-E process is probably the way to go.

It probably is time the Brooks Act be consigned to the past with its best practices and basic rationale blended with best value best practices forming a general "professional design build and support" acquisition category.

Such services driven or even strongly influenced by "cost" can and usually are anything except "cost effective." They often have to be redone and are blatant false economies.

By Anon Zed on Thursday, April 12, 2001 - 02:52 pm:

Remember, that the Brooks Act was enacted during a time when contracting officers routinely required competing firms to submit cost or pricing data, even when they should have anticipated adequate price competition. The development of detailed cost proposals and the submission of certified cost or pricing data was extremely costly to A-E firms, which are generally quite small. Under the Brooks Act, only one firm needs to prepare and submit detailed cost information. The A-E profession will fight any change in the law that could result in their having to prepare and submit detailed cost estimates and proposals in order to compete for a job.

If the Brooks Act is repealed or changed to allow consideration of price, then the new law should forbid contracting officers from requiring all competing firms to submit detailed cost estimates and proposals.

By joel hoffman on Thursday, April 12, 2001 - 09:48 pm:

Anon Zed - Huh?

Were you around in 1949, when this law was passed?

I don't think there was such a thing as "cost or pricing data", back then. Do you really and honestly have any idea why the law was passed? Or are you speculating as to why it was passed?

I don't have ready access to a law library until next week, or I'd look up the Legislative Reports concerning this law. If anyone does have access, here is some of the Legislative history. Section 905 of title IX of act June 30, 1949, as added by Pub. L. 103-355, title X, Sec. 10005(f)(2), Oct. 13, 1994, 108 Stat. 3409, provided that: ''This title (enacting this subchapter) may be cited as the 'Brooks Architect-Engineers Act'

Happy Sails! Joel

By joel hoffman on Thursday, April 12, 2001 - 11:12 pm:

Anon-Zed, I apologize - it was enacted in 1972.
Here is a website, explaining the Act and another, explaining the required selection procedures. I haven't been able to find the Legislative History, on-line and won't be in the office, until next week. If you or anyone else can find this information, I'd be appreciative. happy sails! joel

http://www.acec.org/programs/brooks.htm

http://www.acec.org/programs/brooks2.htm

By Anon Zed on Friday, April 13, 2001 - 01:56 am:

Joel Hoffman:

I think you're reading something into what I said that I didn't say. I didn't say that the cost or pricing data problem was the reason for the law. In fact, I don't know why the Brooks Act was passed. (The legislative history is available in the U.S. Code and Administrative News.) I just stated a fact about the effect of excessive proposal demands on A-E firms in the past and my belief that those firms are not going to be willing to go back to the time when they spent a small fortune on price proposals. The Brooks Act has shielded them from demands for excessive amounts of cost proposal data and I bet they'll resist any change in that regard. That's my thinking or, if you prefer, my speculation. I'm not interested in debating the matter with you.

By ex-fed on Friday, April 13, 2001 - 11:11 am:

Anon Zed,

If shielding the A-E community from a burden of each firm having to prepare detailed price proposals makes sense it must make sense in other areas. What do you think a reasonable extension of that principle might be?

By Kennedy How on Friday, April 13, 2001 - 12:53 pm:

Speaking as a total outsider from the world of A-E and Brooks Act, I have real problems reconciling Best Approach/Qualified Source and Affordability. If this all falls into place, everything is fine. But, if the former results in not being affordable, what do you do? You are now reduced to spending time to either redo your original wish list, or try to shop your best approach around to see if you can get this cheaper. Or, you go to somebody else's approach and see what that one costs. Another tradeoff.

Realistically, none of us are going to get everything we want in our budget request. There are lot's of things that change because our budget request gets cut. We have to make do. Now, we have to take what we need to have done, and find some way to get it done. And, if it means having to look at multiple approaches with some kind of cost data to determine even if it's affordable, then that's the reality of today.

Kennedy

By Harley Hartley on Thursday, May 03, 2001 - 08:33 am:

I have long thought price or cost should be an element of the competition for A-E services. Our technical evaluations frequently result in near ties and, if we can't agree on price with the first, we always go to the second firm (which means the second firm is technically qualified), so why not introduce a second step involving a price competition among the most highly qualified? Anyway, getting back to the original question--I agree with Joel. When we solicit a proposal we are implying that, if the contractor plays by the rules (in this case, negotiates a fair and reasonable price), we will award a contract (or task order). To do otherwise without a valid reason is a breach of faith. (In this case, the local sponsor may have thought that obtaining a lower price was a valid reason. But, I wonder why the federal agency would enter into an agreement with a local sponsor that would allow the local sponsor to put the federal agency in a questionable situation.) Finally, I don't think it is fair to have a competition where one contractor has a state contract (with the state's terms and conditions) and the other contractor has a federal contract (with federal terms and conditions). I'd bet the federal contract makes more demands (thus adding to cost) than the state contract.