B-208408 L/M, SEP 22, 1982

B-208408 L/M: Sep 22, 1982

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YOUR SPECIFIC CONCERN IS WITH THE PROPRIETY OF YOUR OFFICE'S JANUARY 18. 1982 MEMORANDUM ON THE SUBJECT WHICH APPEARS TO LIMIT THE USE OF THE SPECIAL PROCEDURES FOR PROCURING ARCHITECT-ENGINEER SERVICES THAT ARE SET OUT IN THE BROOKS ACT TO SITUATIONS THAT INVOLVE THE DESIGN OF A CONSTRUCTION PROJECT. WHETHER OR NOT CONSTRUCTION DESIGN IS INVOLVED. YOU STATE THAT YOU ARE NOT AWARE OF THAT HOLDING. THE ARCHITECT-ENGINEER SERVICES TO WHICH THE BROOKS ACT PROCEDURES APPLY ARE DEFINED IN THE STATUTE AS PROFESSIONAL SERVICES OF AN ARCHITECTURAL OR ENGINEERING NATURE AS WELL AS INCIDENTAL SERVICES THAT PROFESSIONAL ARCHITECTS AND ENGINEERS LOGICALLY OR JUSTIFIABLY PERFORM. THE MEMORANDUM STATES THAT SUCH SERVICES "NORMALLY INVOLVE OR ARE INCIDENT TO THE PREPARATION OR SUBMISSION OF DESIGN.

B-208408 L/M, SEP 22, 1982

PRECIS-UNAVAILABLE

DONALD E. SOWLE, EXECUTIVE OFFICE OF THE PRESIDENT:

THIS RESPONDS TO YOUR JULY 22, 1982 LETTER REQUESTING OUR VIEWS ON CERTAIN CORRESPONDENCE THAT YOU RECEIVED FROM SENATOR SARBANES CONCERNING THE FEDERAL GOVERNMENT'S PROCUREMENT OF ARCHITECT-ENGINEER SERVICES. YOUR SPECIFIC CONCERN IS WITH THE PROPRIETY OF YOUR OFFICE'S JANUARY 18, 1982 MEMORANDUM ON THE SUBJECT WHICH APPEARS TO LIMIT THE USE OF THE SPECIAL PROCEDURES FOR PROCURING ARCHITECT-ENGINEER SERVICES THAT ARE SET OUT IN THE BROOKS ACT TO SITUATIONS THAT INVOLVE THE DESIGN OF A CONSTRUCTION PROJECT. YOU NOTE THAT THE CORRESPONDENCE FURNISHED TO YOU INDICATES THAT THIS OFFICE HAS HELD THAT BROOKS ACT PROCEDURES SHOULD APPLY TO ALL PROCUREMENTS OF PROFESSIONAL ARCHITECT ENGINEER SERVICES, WHETHER OR NOT CONSTRUCTION DESIGN IS INVOLVED, BUT YOU STATE THAT YOU ARE NOT AWARE OF THAT HOLDING.

THE ARCHITECT-ENGINEER SERVICES TO WHICH THE BROOKS ACT PROCEDURES APPLY ARE DEFINED IN THE STATUTE AS PROFESSIONAL SERVICES OF AN ARCHITECTURAL OR ENGINEERING NATURE AS WELL AS INCIDENTAL SERVICES THAT PROFESSIONAL ARCHITECTS AND ENGINEERS LOGICALLY OR JUSTIFIABLY PERFORM. THE JANUARY 18 MEMORANDUM CAUTIONS THAT THE BROOKS ACT PROCEDURES MUST BE LIMITED TO ARCHITECT-ENGINEER SERVICES MEETING THAT DEFINITION AS "FURTHER DEFINED" IN A 1977 DECISION BY OUR OFFICE ENTITLED NINNEMAN ENGINEERING - RECONSIDERATION, B-184770, MARCH 9, 1977, 77-1 CPD 171. THE MEMORANDUM STATES THAT SUCH SERVICES "NORMALLY INVOLVE OR ARE INCIDENT TO THE PREPARATION OR SUBMISSION OF DESIGN, PLANS, DRAWINGS, OR SPECIFICATIONS FOR CONSTRUCTION PROJECTS."

WE INDEED HAVE RECOGNIZED THAT THE BROOKS ACT PROCEDURES ARE NOT LIMITED TO SERVICES USED FOR CONSTRUCTION ACTIVITIES, BUT INSTEAD APPLY TO ALL GOVERNMENT REQUESTS FOR ARCHITECT-ENGINEER SERVICES. WE SO INDICATED TO OFPP'S ASSISTANT ADMINISTRATOR FOR REGULATIONS WITH RESPECT TO CIVILIAN PROCUREMENTS IN JULY 16 COMMENTS ON A DRAFT SEGMENT OF THE FEDERAL ACQUISITION REGULATION COVERING CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS. WE ALSO STATED IN THESE COMMENTS THAT WE HAD HELD IN A SEPTEMBER 15, 1980 DECISION THAT THE BROOKS ACT SELECTION PROCEDURE APPLIED TO ARCHITECT-ENGINEER CONTRACTS ENTERED INTO BY MILITARY AGENCIES ONLY WHERE CONSTRUCTION PROJECTS WERE INVOLVED, BUT THAT THIS POSITION WAS UNDER RECONSIDERATION. IN AN AUGUST 13, 1982 DECISION WE REVERSED OUR 1980 HOLDING.

IN SUMMARY, THE POSITION OF THIS OFFICE IS THAT THE BROOKS ACT PROCEDURE APPLIES TO ALL GOVERNMENT PROCUREMENTS OF ARCHITECT-ENGINEER SERVICES WHETHER OR NOT THE SERVICES ARE RELATED TO CONSTRUCTION. WE THEREFORE SUGGEST THAT THE JANUARY 18 MEMORANDUM'S APPARENT LIMITATION OF THE BROOKS ACT PROCEDURES TO CONSTRUCTION-RELATED PROCUREMENTS OF ARCHITECT-ENGINEER SERVICES IS INAPPROPRIATE.

WE HAVE ENCLOSED COPIES OF OUR JULY 16, 1982 COMMENTS ON THE FEDERAL ACQUISITION REGULATION DRAFT SEGMENT, AND OF THE 1980 AND 1982 DECISIONS THAT WE HAVE REFERENCED. ALSO ENCLOSED FOR YOUR INFORMATION IS A COPY OF A JULY 19, 1982 LETTER FROM OUR OFFICE TO THE DIRECTOR OF THE FEDERAL PROCUREMENT REGULATIONS DIRECTORATE COMMENTING ON A PROPOSED AMENDMENT TO THE DEFINITION OF THE TERM "ARCHITECT-ENGINEER SERVICES" AT SECTION 1- 4.1002(C) OF THE REGULATIONS.