B-226447.1, MAR 26, 1987, OFFICE OF GENERAL COUNSEL

B-226447.1, MAR 26, 1987, OFFICE OF GENERAL COUNSEL

PROCUREMENT - SPECIAL PROCUREMENT METHODS/CATEGORIES - ARCHITECT/ENGINEERING SERVICES - CORPORATE ENTITIES - QUALIFICATION DIGEST: QUESTION WHETHER GENERAL CORPORATIONS MAY BE CONSIDERED UNDER DISTRICT OF COLUMBIA LAW ADOPTING THE FEDERAL BROOKS ACT PROCEDURES, 40 U.S.C. SEC. 541-544, FOR AWARDING ARCHITECT AND ENGINEER CONTRACTS IS ANSWERED IN THE NEGATIVE SINCE THE ACT LIMITS CONSIDERATION TO THOSE ENTITIES PERMITTED BY LAW TO PRACTICE THOSE PROFESSIONS AND DISTRICT LAW DOES NOT PERMIT GENERAL CORPORATIONS TO PERFORM ARCHITECT AND ENGINEER SERVICES.

JAMES B. MCDANIEL:

THIS RESPONDS TO YOUR LETTER OF MARCH 3, 1987, IN WHICH YOU ADVISE THAT THE DISTRICT OF COLUMBIA'S PROCUREMENT PRACTICES ACT OF 1985, D.C. LAW 6- 85, REQUIRES THE DISTRICT TO USE THE PROCEDURES SPECIFIED IN 40 U.S.C. SEC. 541-544 (1982), THE BROOKS ACT, FOR THE AWARD OF FEDERAL CONTRACTS TO ARCHITECTS AND ENGINEERS. YOU STATE THAT IN YOUR EXPERIENCE, CONSTRUCTION MANAGEMENT AND CONSULTING FIRMS EMPLOYING ARCHITECTS AND ENGINEERS FREQUENTLY SEEK TO BE CONSIDERED FOR DISTRICT WORK AWARDED UNDER THESE PROCEDURES, EVEN THOUGH THEY ARE ORGANIZED AS GENERAL CORPORATIONS. YOU REQUEST THIS OFFICE'S INFORMAL ADVICE AS TO WHETHER AWARDS UNDER BROOKS ACT PROCEDURES ARE RESTRICTED TO PROFESSIONAL ARCHITECTURAL AND ENGINEERING FIRMS IN THESE CIRCUMSTANCES, OR WHETHER GENERAL CORPORATIONS THAT ONLY EMPLOY ARCHITECTS AND ENGINEERS MAY ALSO BE CONSIDERED FOR AWARD.

THE BROOKS ACT PROVIDES THAT ARCHITECT AND ENGINEER CONTRACTS MAY BE AWARDED TO:

"... ANY INDIVIDUAL, FIRM, PARTNERSHIP, CORPORATION OR OTHER LEGAL ENTITY PERMITTED BY LAW TO PRACTICE THE PROFESSIONS OF ARCHITECTURE OR ENGINEERING."

GIVEN THE ACT'S BROAD LANGUAGE, ANY ENTITY AUTHORIZED TO PROVIDE ARCHITECT OR ENGINEERING SERVICES UNDER DISTRICT LAW WOULD BE ELIGIBLE FOR CONSIDERATION WHEN APPLYING THE FEDERAL PROCEDURES FOR CONTRACTING WITH ARCHITECTS AND ENGINEERS.

INTERPRETING THE LAWS REGULATING THE PRACTICE OF ARCHITECTURE AND ENGINEERING WITHIN THE DISTRICT IS, OF COURSE, A MATTER WITHIN THE PROVINCE OF YOUR OFFICE. HOWEVER, ON ITS FACE, DISTRICT LAW APPEARS TO RESTRICT THE PERFORMANCE OF ARCHITECT AND ENGINEERING SERVICES TO EITHER PROPERLY REGISTERED INDIVIDUALS, 2 D.C. CODE ANN. SECS. 2-216 AND 2-2302 (1981), OR PROFESSIONAL CORPORATIONS COMPOSED OF SUCH INDIVIDUALS. 6 D.C. CODE ANN. SEC. 29-602(2). IT FOLLOWS THAT CONSIDERATION FOR AWARD UNDER BROOKS ACT PROCEDURES WOULD ALSO BE LIMITED TO EITHER INDIVIDUAL REGISTERED ARCHITECTS AND ENGINEERS OR PROFESSIONAL CORPORATIONS COMPOSED OF SUCH INDIVIDUALS.

IN THIS CONNECTION, YOU MAY FIND IT USEFUL TO REVIEW THIS OFFICE'S CASES DEALING WITH THE DEGREE OF DISCRETION ACCORDED FEDERAL AGENCIES WHEN DETERMINING WHETHER A PARTICULAR ASSIGNMENT SHOULD BE CLASSIFIED AS ARCHITECT OR ENGINEER WORK SUBJECT TO THE BROOKS ACT. GENERALLY, ONLY THOSE SERVICES ASSOCIATED WITH AN ARCHITECTURAL PROJECT, I.E., THE DESIGN AND CONSTRUCTION OF A BUILDING OR OTHER PUBLIC WORK, MUST BE PROCURED UNDER THESE PROCEDURES. SEE, FOR EXAMPLE, MOUNTS ENGINEERING, B-223650 ET AL., SEPT. 12, 1986, 86-2 CPD PARA. 293.

I TRUST THE ABOVE WILL PROVE USEFUL TO YOU.