B-207009 L/M, SEP 22, 1982, OFFICE OF GENERAL COUNSEL

B-207009 L/M: Sep 22, 1982

Additional Materials:

Contact:

Ralph O. White
(202) 512-8278
WhiteRO@gao.gov

Kenneth E. Patton
(202) 512-8205
PattonK@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

STYLES IS CONCERNED ABOUT A JANUARY 18. 1982 MEMORANDUM TO FEDERAL AGENCIES FROM THE OFFICE OF FEDERAL PROCUREMENT POLICY (OFPP) THAT APPEARS TO LIMIT THE USE OF THE SPECIAL PROCEDURES FOR PROCURING ARCHITECT -ENGINEER SERVICES THAT ARE SET OUT IN THE BROOKS ACT. WHETHER OR NOT CONSTRUCTION DESIGN IS INVOLVED. UPON RECEIPT OF YOUR LETTER WE ADVISED YOUR STAFF THAT WE WERE CONSIDERING SUBSTANTIALLY THE SAME ISSUE IN CONNECTION WITH A NUMBER OF OTHER MATTERS. WE AGREED TO DELAY THIS RESPONSE UNTIL THESE MATTERS WERE RESOLVED. 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.

B-207009 L/M, SEP 22, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

JOSEPH F. SMITH, HOUSE OF REPRESENTATIVES:

THIS RESPONDS TO YOUR MARCH 30, 1982 LETTER REQUESTING OUR COMMENTS ON A LETTER TO YOU FROM LYMAN B. STYLES, JR. OF OMNI CONSULTANTS, INC. WITH REGARD TO THE FEDERAL GOVERNMENT'S PROCUREMENT OF ARCHITECT ENGINEER SERVICES. MR. STYLES IS CONCERNED ABOUT A JANUARY 18, 1982 MEMORANDUM TO FEDERAL AGENCIES FROM THE OFFICE OF FEDERAL PROCUREMENT POLICY (OFPP) THAT APPEARS TO LIMIT THE USE OF THE SPECIAL PROCEDURES FOR PROCURING ARCHITECT -ENGINEER SERVICES THAT ARE SET OUT IN THE BROOKS ACT, WHICH DO NOT INCLUDE PRICE COMPETITION, TO SITUATIONS THAT INVOLVE THE DESIGN OF A CONSTRUCTION PROJECT. MR. STYLES SUGGESTS THAT THE BROOKS ACT PROCEDURES SHOULD APPLY TO ALL PROCUREMENTS OF PROFESSIONAL ARCHITECT-ENGINEER SERVICES, WHETHER OR NOT CONSTRUCTION DESIGN IS INVOLVED. (ON MARCH 30, OFPP INVITED PUBLIC COMMENTS ON THE JANUARY 18 MEMORANDUM, REQUESTING THAT ANY CHANGES IN AGENCY OR DEPARTMENTAL PROCUREMENT REGULATIONS BE HELD IN ABEYANCE.)

UPON RECEIPT OF YOUR LETTER WE ADVISED YOUR STAFF THAT WE WERE CONSIDERING SUBSTANTIALLY THE SAME ISSUE IN CONNECTION WITH A NUMBER OF OTHER MATTERS. UNDER THE CIRCUMSTANCES, WE AGREED TO DELAY THIS RESPONSE UNTIL THESE MATTERS WERE RESOLVED. OUR CONSIDERATION OF THE MATTERS RECENTLY HAS BEEN COMPLETED. WE AGREE WITH MR. STYLES.

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. OFPP, IN THE JANUARY 18 MEMORANDUM, CAUTIONS THAT THE BROOKS ACT PROCEDURES SHOULD 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. OFPP STATES THAT SUCH SERVICES "NORMALLY INVOLVE OR ARE INCIDENT TO THE PREPARATION OR SUBMISSION OF DESIGNS, PLANS, DRAWINGS, OR SPECIFICATIONS FOR CONSTRUCTION PROJECTS."

THE PRECISE LANGUAGE THAT WE USED IN THE 1977 DECISION TO DESCRIBE THE SERVICES TO WHICH THE BROOKS ACT PROCEDURES APPLY WAS AS FOLLOWS:

"THESE SERVICES ESSENTIALLY CONSIST OF DESIGN AND CONSULTANT SERVICES TRADITIONALLY OBTAINED BY THE FEDERAL GOVERNMENT IN CONNECTION WITH FEDERAL CONSTRUCTION AND RELATED PROGRAMS, INCLUDING ALTERATION AND RENOVATION PROJECTS."

IN SUBSEQUENT DECISIONS, HOWEVER, WE 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 THOSE 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 PROCEDURES APPLY TO ALL GOVERNMENT PROCUREMENTS OF ARCHITECT-ENGINEER SERVICES WHETHER OR NOT THE SERVICES ARE RELATED TO CONSTRUCTION.

FOR YOUR INFORMATION, WE HAVE ENCLOSED COPIES OF OUR JULY 16, 1982 COMMENTS ON THE FEDERAL ACQUISITION REGULATION DRAFT SEGMENT, AND OF THE 1977, 1980 AND 1982 DECISIONS THAT WE HAVE REFERENCED. WE ARE ADVISING OFPP OF OUR VIEW IN THE FORM OF A RESPONSE TO A JULY 22, 1982 REQUEST FROM OFPP THAT WE COMMENT ON THE JANUARY 18 MEMORANDUM. IN THIS RESPECT, IN ITS REQUEST OFPP STATED THAT WHEN IT ISSUED THE MEMORANDUM IT WAS NOT AWARE OF OUR POSITION THAT THE BROOKS ACT PROCEDURES ARE NOT LIMITED TO CONSTRUCTION-RELATED CIVILIAN PROJECTS.