B-207349 L/M, JUL 16, 1982, OFFICE OF GENERAL COUNSEL

B-207349 L/M: Jul 16, 1982

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OUR COMMENTS ARE AS FOLLOWS: BY LETTER DATED APRIL 28. PAGE 18 "SHOP DRAWINGS" ARE DEFINED AS "DRAWINGS BY THE CONSTRUCTION CONTRACTOR OR SUBCONTRACTOR ***.". CONTRACTORS MAY SUBMIT SHOP DRAWINGS WHICH ARE DEVELOPED AND PREPARED BY THE PRODUCT MANUFACTURER. TECHNICALLY THESE ARE NOT DRAWINGS PREPARED BY THE CONTRACTOR. WE THEREFORE SUGGEST SUBSTITUTING THE WORDS "DRAWINGS SUBMITTED BY" FOR THE WORDS "DRAWINGS BY" IN THE FIRST LINE OF THE DEFINITION (WHICH IS CONSISTENT WITH THE DEFINITION'S COUNTERPART IN DEFENSE ACQUISITION REGULATION SEC. 18.901 (1976 ED.)). APPEAR TO APPLY TO ARCHITECT-ENGINEER CONTRACTS ENTERED INTO BY BOTH MILITARY AND CIVILIAN AGENCIES WHETHER OR NOT CONSTRUCTION PROJECTS ARE INVOLVED.

B-207349 L/M, JUL 16, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. WILLIAM J. MARAIST, OFFICE OF MANAGEMENT AND BUDGET: AND ARCHITECT- ENGINEER CONTRACTS. OUR COMMENTS ARE AS FOLLOWS:

BY LETTER DATED APRIL 28, 1982, YOU REQUESTED OUR REGULATION. THE DRAFT SEGMENT COVERS PART 36 - CONSTRUCTION SUBPART 36.102 - DEFINITIONS, PAGE 18 "SHOP DRAWINGS" ARE DEFINED AS "DRAWINGS BY THE CONSTRUCTION CONTRACTOR OR SUBCONTRACTOR ***."

THIS IMPLIES THAT THE CONTRACTOR MUST PREPARE ALL SHOP DRAWINGS. PRACTICE, CONTRACTORS MAY SUBMIT SHOP DRAWINGS WHICH ARE DEVELOPED AND PREPARED BY THE PRODUCT MANUFACTURER. TECHNICALLY THESE ARE NOT DRAWINGS PREPARED BY THE CONTRACTOR. WE THEREFORE SUGGEST SUBSTITUTING THE WORDS "DRAWINGS SUBMITTED BY" FOR THE WORDS "DRAWINGS BY" IN THE FIRST LINE OF THE DEFINITION (WHICH IS CONSISTENT WITH THE DEFINITION'S COUNTERPART IN DEFENSE ACQUISITION REGULATION SEC. 18.901 (1976 ED.)).

SUBPART 36.601 ET SEQ.

THE SOURCE SELECTION PROCEDURES FOR ARCHITECT-ENGINEER CONTRACTS SET FORTH IN THE PROPOSED REGULATIONS GENERALLY REFLECT THE PROVISIONS OF THE BROOKS ACT, 40 U.S.C. SEC. 541 ET SEQ. (1976), AND APPEAR TO APPLY TO ARCHITECT-ENGINEER CONTRACTS ENTERED INTO BY BOTH MILITARY AND CIVILIAN AGENCIES WHETHER OR NOT CONSTRUCTION PROJECTS ARE INVOLVED.

WE HAVE HELD, HOWEVER, THAT THE BROOKS ACT SELECTION PROCEDURES WHILE APPLICABLE TO ALL CIVILIAN ARCHITECT-ENGINEER CONTRACTS, APPLY TO ARCHITECT-ENGINEER CONTRACTS ENTERED INTO BY MILITARY AGENCIES ONLY WHERE CONSTRUCTION PROJECTS ARE INVOLVED. ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS, B-199548, SEPTEMBER 15, 1980, 80-2 CPD 196. THE REASON IS THAT THE BROOKS ACT ITSELF DOES NOT COVER AGENCIES SUBJECT TO THE ARMED SERVICES PROCUREMENT ACT, AND BROOKS ACT PROCEDURES APPLY TO MILITARY AGENCIES ONLY BY VIRTUE OF THE YEARLY MILITARY CONSTRUCTION AUTHORIZATION ACTS.

THE ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS DECISION IS CURRENTLY UNDER RECONSIDERATION BY THIS OFFICE. WE WILL ADVISE YOU OF THE OUTCOME WHEN A DECISION IS REACHED.

SUBPART 36.603-3(C) - EVALUATION BOARD FUNCTIONS, PAGE 77

THE SECOND SENTENCE PROVIDES THAT THE HEAD OF THE CONTRACTING ACTIVITY OR A DESIGNEE MAY WAIVE THE REQUIREMENT FOR DISCUSSIONS WITH AT LEAST THREE OF THE MOST HIGHLY QUALIFIED ARCHITECT-ENGINEER FIRMS REGARDING CONCEPTS AND THE RELATIVE UTILITY OF ALTERNATIVE METHODS OF FURNISHING THE REQUIRED SERVICES. ALLOWING FOR WAIVER OF THIS REQUIREMENT APPEARS TO BE INCONSISTENT WITH 40 U.S.C. SEC. 543, WHICH REQUIRES THAT SUCH DISCUSSIONS BE HELD, AND WHICH CONTAINS NO PROVISION FOR WAIVER.

SUBPART 36.603-5(B)(1) - SHORT SELECTION PROCESSES FOR CONTRACTS NOT TO EXCEED $10,000, PAGE 79

THE SHORT SELECTION PROCEDURES CONTAINED IN SUBPARAGRAPH (B)(1) PROVIDE THAT THE ARCHITECT-ENGINEER SELECTION REPORT NEED ONLY RECOMMEND ONE FIRM. SUCH AN APPROACH APPEARS TO BE INCONSISTENT WITH 40 U.S.C. SEC. 543, WHICH REQUIRES THAT NO LESS THAN THREE FIRMS BE RECOMMENDED.

SUBPART 36.607(B) - NEGOTIATIONS, PAGE 84

SUBPARAGRAPH (B) CONTAINS TWO UNRELATED MATTERS.

THE FIRST SENTENCE, "THE CONTRACTING OFFICER SHOULD ORDINARILY REQUEST A PROPOSAL FROM THE FIRM, ENSURING THAT THE SOLICITATION DOES NOT INADVERTENTLY PRECLUDE THE FIRM FROM PROPOSING THE USE OF MODERN DESIGN METHODS," IS REPORTED TO BE THE IMPLEMENTATION OF GAO RECOMMENDATIONS IN OUR REPORT, LCD-81-7, DATED OCTOBER 15, 1981. WHILE WE AGREE WITH THE STATEMENT, AND DO NOT SUGGEST THAT IT BE DELETED OR CHANGED, IT DOES NOT FULFILL THE INTENT OF OUR RECOMMENDATIONS REGARDING THE FEE PROPOSALS REQUESTED FROM PROSPECTIVE ARCHITECT ENGINEER FIRMS. WE RECOMMENDED THAT FEE NEGOTIATIONS BE BASED ON PROPOSALS WHICH CLEARLY IDENTIFY THE TASKS WHICH WILL BE PERFORMED BY FIRMS PROVIDING ARCHITECT-ENGINEER SERVICES, AND WHEN APPLICABLE, INDICATE HOW COMPUTERS WILL BE USED ON THE PROJECT. WE BELIEVE THAT WITHOUT THIS WORDING, AGENCIES WILL CONTINUE TO USE FEE PROPOSAL FORMS WHICH DO NOT CLEARLY SHOW WHAT WORK THE FIRM AGREES TO PERFORM UNDER THE CONTRACT. WE ALSO RECOMMENDED A POLICY STATEMENT ON PROCEDURES FOR PRICING COMPUTER SERVICES, AND THAT FIRMS BE PERMITTED TO SUBMIT PROPOSALS ON THEIR OWN STATIONERY RATHER THAN ON PREPRINTED FEE PROPOSAL FORMS.

THE SECOND SENTENCE, "THE CONTRACTING OFFICER SHALL INFORM THE FIRM THAT NO CONSTRUCTION CONTRACT MAY BE AWARDED TO THE FIRM THAT DESIGNED THE PROJECT, EXCEPT AS PROVIDED IN 36.209," APPEARS TO BE MISPLACED SINCE IT DOES NOT RELATE TO THE REQUIREMENT THAT A PROPOSAL BE REQUESTED FROM THE MOST HIGHLY QUALIFIED FIRM. WE BELIEVE THAT THIS SUBJECT WOULD BE MORE APPROPRIATELY COVERED ELSEWHERE, SUCH AS IN A SEPARATE SUBPARAGRAPH UNDER SUBPART 36.601, WHICH CONTAINS THE REQUIREMENT FOR PUBLIC ANNOUNCEMENT OF ALL REQUIREMENTS. IF, HOWEVER, THE SUBJECT IS TO BE DISCUSSED DURING NEGOTIATIONS, WE BELIEVE IT SHOULD BE LISTED IN A SEPARATE SUBPARAGRAPH UNDER SUBPART 36.607.

SUBPART 36.609 - LIABILITY FOR GOVERNMENT COSTS RESULTING FROM DESIGN ERROR OR DEFICIENCIES, PAGE 88

THE LANGUAGE IN THIS SUBPART PROVIDES THAT "THE CONTRACTING OFFICER SHALL ENFORCE THE LIABILITY AND COLLECT THE AMOUNT DUE IF THE RECOVERABLE COST WILL EXCEED THE ADMINISTRATIVE COST INVOLVED." IN OUR REPORT TO THE CONGRESS, LCD-76-333, DATED JULY 14, 1977, WE RECOMMENDED THAT THE CONTRACTING OFFICER, ON A SELECTIVE BASIS, ENFORCE THE LIABILITY AND COLLECT THE AMOUNT DUE EVEN THOUGH THE ADMINISTRATIVE COSTS OUTWEIGH RECOVERABLE COSTS. OUR RATIONALE WAS THAT THIS PROCEDURE WOULD DIRECT ATTENTION TO THE ARCHITECT-ENGINEER FIRM RESPONSIBLE FOR THE QUALITY OF WORK. THE THREAT OF POSSIBLE ACTION IN SOME INSTANCES COULD RESULT IN THE FIRM DOING A BETTER JOB.

WE HAVE NO FURTHER COMMENTS ON DRAFT PART 36.

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