A/E Design-Bid-Build Fee
Just about every construction project includes the services of professional architects and engineers (A&E).
Those services range from the preparation of plans and specifications to inspection and supervisory services during actual construction. Atone time, there was no authority to hire a private architect to prepare plans for a public building. 21 Comp. Dec. 336 (1914). Today, the United States Code is dotted with statutes authorizing the government to contract for A&E services. Among the more important provisions are 40 U.S.C. § 3308 (General Services Administration), 10 U.S.C. §§ 4540(a), 7212(a), and 9540(a) (Army, Navy, and Air Force, respectively); and 38 U.S.C. § 8106(b) (Veterans Affairs Medical Facilities).
A/E Contracting Services by 40 U.S.C. §§ 1101–1104, 155
Contracting for A&E services is governed by 40 U.S.C. §§ 1101–1104, 155 which prescribes a negotiation procedure based on competence as well as price. In this regard, section 1101 provides: “The policy of the Federal Government is to publicly announce all requirements for architectural and engineering services, and to negotiate contracts for architectural and engineering services on the basis of demonstrated competence and qualification for the type of professional services required and at fair and reasonable prices.”
A/E Two-phase Selection Procedures
The Clinger-Cohen Act of 1996, Pub. L. No. 104-106, div. D, § 4105, 110 Stat. 186, 645–49 (Feb. 10, 1996) (often referred to as the “Federal Acquisition Reform Act of 1996”), authorized “two-phase” selection procedures for “design-build” acquisitions. These procedures, codified at 10 U.S.C. § 2305a and 41 U.S.C. § 253m, authorize the use of two-phase selection procedures for entering into a contract for the design and construction a public building, facility, or work. The conference report on the Act indicates that this provision was “not intended to modify the Brooks Architect-Engineers Act [40 U.S.C. §§ 1101–1104].” H.R. Rep. No. 104-450, at 966 (1996). Consequently, the two-phase approach represents an alternative to the “design-bid-build” procedures in 40 U.S.C. §§ 1101–1104.
Fair and Reasonable Prices
“At fair and reasonable prices.” In order to keep “fair and reasonable” from becoming excessive, a series of statutes imposes a percentage ceiling on A&E fees. Civilian procurements are governed by 41 U.S.C. § 254(b), enacted as part of the Federal Property and Administrative Services Act of 1949.
A very similar provision, governing procurements by the armed forces, is found in 10 U.S.C. § 2306(d). The fee limitation of 41 U.S.C. § 254(b) applies to all civilian A&E procurements unless expressly exempted. E.g.,46 Comp. Gen. 183, 189–90 (1966) (ceiling applies to A&E services procured under authority of what is now 38 U.S.C. § 513); B-152306, Jan. 5, 1967 (limited exemption under 22 U.S.C. § 296). By its plain terms, 41 U.S.C. § 254(b) applies where A&E services are used even if they are only a minor part of the overall contract. Fluor, 64 Fed. Cl. at 479–82. 158. The limitation in 10 U.S.C. § 2306(d) applies to the Coast Guard and the National Aeronautics and Space Administration as well as the military departments. 10 U.S.C. § 2303. The A&E fee limitation statutes — 41 U.S.C. § 254(b), 10 U.S.C. § 2306(b), and the three armed forces statutes, 10 U.S.C. §§ 4540, 7212, and 9540 — apply to all contracts regardless of type, cost-plus as well as fixed-price. 46 Comp. Gen. 556 (1966); 46 Comp. Gen. 183 (1966); B-115013-O.M., Apr. 28, 1953.