B-208408, MAY 31, 1983

B-208408, MAY 31, 1983

PRECIS-UNAVAILABLE

THE HONORABLE DONALD E. SOWLE ADMINISTRATOR OF FEDERAL PROCUREMENT POLICY:

THIS RESPONDS TO YOUR APRIL 19, 1983 LETTER REQUESTING OUR REVIEW AND COMMENT ON YOUR OFFICE'S PROPOSED MEMORANDUM TO THE HEADS OF FEDERAL AGENCIES REGARDING THE PROCUREMENT OF ARCHITECT-ENGINEER SERVICES. YOU STATE THAT THE PROPOSED MEMORANDUM IS BASED LARGELY ON OUR SEPTEMBER 22, 1982 COMMENTS ON YOUR OFFICE'S JANUARY 18, 1982 MEMORANDUM ABOUT THE SAME SUBJECT.

WHILE WE HAVE NO OBJECTION TO THE PROPOSAL, WE BELIEVE THAT MORE PRECISE GUIDANCE CAN BE GIVEN TO AGENCIES WITH RESPECT TO THE BROOKS ACT'S APPLICABILITY.

YOUR JANUARY 18 MEMORANDUM APPEARED TO LIMIT THE USE OF THE SPECIAL PROCEDURE FOR PROCURING ARCHITECT-ENGINEER SERVICES THAT IS SET OUT IN THE BROOKS ACT TO A SITUATION INVOLVING THE DESIGN OF A CONSTRUCTION PROJECT. WE ADVISED IN OUR SEPTEMBER 22 COMMENTS THAT IT IS OUR OFFICE'S POSITION THAT THE BROOKS ACT PROCEDURE APPLIES TO ALL GOVERNMENT PROCUREMENT OF ARCHITECT-ENGINEER SERVICES WHETHER OR NOT THE SERVICES ARE RELATED TO CONSTRUCTION.

THE PROPOSED MEMORANDUM ELIMINATES THE LIMITATION BY BASICALLY REPEATING THE DEFINITION OF "ARCHITECTURAL AND ENGINEERING SERVICES" THAT APPEARS IN THE BROOKS ACT ITSELF. SEE 41 U.S.C. SEC. 541(3) (1976). THE PROPOSED MEMORANDUM ALSO INCLUDES DESCRIPTIONS THAT ARE CONSISTENT WITH OUR OFFICE'S DECISIONS ON THE STATUTE'S APPLICABILITY. WE BELIEVE IT WOULD BE HELPFUL, HOWEVER, TO INCLUDE IN THE PROPOSED MEMORANDUM'S FIRST CATEGORY OF SERVICES TO WHICH THE BROOKS ACT APPLIES ADVICE THAT THE BROOKS ACT DOES NOT REQUIRE THAT CONTRACTS BE AWARDED TO ARCHITECT-ENGINEER FIRMS MERELY BECAUSE ARCHITECTS OR ENGINEERS MIGHT DO PART OF THE CONTRACT WORK. RATHER, THE STATUTE'S PROCEDURES APPLY TO THE PROCUREMENT OF SERVICES WHICH UNIQUELY OR TO A SUBSTANTIAL OR DOMINANT EXTENT REQUIRE PERFORMANCE BY A PROFESSIONALLY LICENSED AND QUALIFIED ARCHITECT-ENGINEER FIRM. FOR EXAMPLE, WE HAVE HELD THAT WHERE THE SERVICES REQUIRED ARE NOT UNIQUE TO PROFESSIONAL ARCHITECTS AND ENGINEERS, NONPROFESSIONAL EFFORTS PREDOMINATE, AND THERE OTHERWISE IS NO REASON TO RESTRICT THE CONTRACT TO ARCHITECT-ENGINEER FIRMS, THE BROOKS ACT DOES NOT APPLY. SEE ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS, B-208925, JANUARY 4, 1983, 83-1 CPD 8.

ENCLOSED IS A COPY OF THE DECISION CITED ABOVE, AS WELL AS A COPY OF AN APRIL 5, 1983 DECISION (ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS, B-209196, B-208925.2) IN WHICH WE DESCRIBE WHAT WE BELIEVE IS THE PROPER ROLE OF OUR OFFICE IN RESOLVING BID PROTESTS ABOUT THE APPLICABILITY OF THE BROOKS ACT.