Federal Acquisition of Architecture, Engineering and Related (A/E) Services Roundtable Discussion with OFPP Administrator Dan Gordon May 25, 2010 Washington, DC

Topics for Discussion A/E Acquisition Workforce QBS – Definition of Services GSA Federal Supply Schedule Design-Build A-76, Insourcing & Inherently Governmental Subcontracting

Issue 1: Federal A/E Acquisition Workforce There is a critical need to rebuild the Federal A/E acquisition workforce – Congress identified this issue in sec of SARA – Implementation was insufficient and unsuccessful

Federal A/E Acquisition Workforce The lack of an adequate A/E acquisition workforce is resulting in corner-cutting in procurement that violates Brooks Act and compromises public health, safety and welfare Manifestation – Narrowing of definition of A/E services using QBS – Misuse of GSA Schedule – Increased Use of Design-Build

Discussion How critical is the Federal government’s loss of a trained and experienced A/E acquisition workforce? What is your experience (public or private sector) in dealing with the current workforce? What can COFPAES, OFPP and other stakeholders do to help rebuild the Federal A/E acquisition workforce?

Issue 2: A/E Definition FAR was changed in (FAC 97-12), 1999, to revise the definition of A/E services in FAR Part 36 with regard to mapping FAR Council comment on March 23, 2004 Issued notice of no change on April 19, 2005 Did not conduct legislative history, state licensing law analysis; rejected COFPAES appeal February 15, 2006 COFPAES et al filed suit, April 6, 2006; dismissed for lack of standing

A/E Definition The April 19, 2005 Federal Register notice did not state that compliance with state licensing law was a factor in determining Brooks Act applicability Agencies combine or “bundle” A/E services and non- A/E services, determine the contracts is not A/E “to a dominant extent”, and do not use QBS (FAR 36.6) Agencies mistakenly believe the Brooks Act only applies to “design” services, or to “construction- related” services

Discussion What is your experience (public or private sector) in dealing with the application of the Brooks Act? Does the FAR (36.6) need to be changed to assure proper compliance and implementation? What can COFPAES, OFPP and other stakeholders do to help assure that public health, welfare and safety is being protected through use of QBS?

Issue 3: Abuse of GSA Federal Supply/Multiple Award (FSS/MAS) Schedules Multiple Award Schedule Advisory Panel Final Report – MAS Sales Data for FY Professional Engineering Services (PES) $2,766,067,166

GSA Schedule The Brooks Act, SARA and FAR prohibit price competition for A/E services (negotiation with the most qualified) GSA hosts schedules that offer A/E services, as defined in Brooks Act and FAR part 36, with prices – PES facilitates firms offering Professional Engineering Services, without a license, in violation of State law – PES includes clearly understood A/E services – PES, IT, Environmental Services, MOBIS, Temporary (TAPS), Logworld and – Others permit firms to offer A&E professionals based on price

GSA Schedule GSA has denied COFPAES request to remove or rename these services from FSS Legislation enacted to assure compliance with the law SARA (PL ; sec. 1427(b)) GSA still has A/E services on its FSS!

Discussion What is your experience (public or private sector) in dealing with the GSA Schedule for A/E contracts? What can COFPAES, OFPP, GSA and other stakeholders do to help assure proper compliance and implementation?

Issue 4: Design-Build Authorized in Section 4105 of Federal Acquisition Reform Act (FARA) of 1995 A-E Community is concerned D-B is being used more frequently than conventional design-bid-build D-B results in pure price competition, no QBS for A/E phase There has been no review of whether savings or efficiencies are being achieved Community’s perception is that small firms are disadvantaged in the D-B process There is a need to review the experience to determine if D-B is serving the public interest

Discussion What is your experience (public or private sector) in dealing with Design-Build? Is Design-Build being used properly? What is the impact on QBS, small business, and overall project quality and price? Is there a need to review the Federal experience with Design-Build? What can COFPAES, OFPP, GSA and other stakeholders do to help assure proper compliance and implementation?

Issue 5: A-76, Insourcing & Inherently Governmental A-76 is a non-binding circular – A&E listed as commercial activity QBS process for A/E services is in statute (40 USC 1101) Public-private cost comparison in circular Conflict between statute and circular

Issue 5: A-76, Insourcing & Inherently Governmental The Bush A-76 revision for first time recognized A- 76/QBS conflict Provisions, such as the Van Hollen amendment, return to price competition A/E services are being insourced, despite being commercial Proposed inherently governmental definition could adversely affect the A/E community

Issue 5: A-76, Insourcing & Inherently Governmental COFPAES supports a core in-house A/E workforce, but opposes government competition Concerns: – Functions that are closely associated with the performance of inherently governmental functions. “16. Construction of buildings or structures intended to be secure from electronic eavesdropping or other penetration by foreign governments” – “For ongoing contracts, agencies should review how work is performed, focusing, in particular, on functions that are closely associated with inherently governmental activities and professional and technical services …”

Discussion How should commercial activities and inherently governmental functions be defined with regard to the A/E community? How should decisions be made on whether/what A/E activities are performed in-house and by contract? How can QBS be preserved in any A-76 or similar public-private comparison/ competition?

Issue 6: Subcontracting Significant A/E work is done through teams with specialty subcontractors of small firms SF not aggregated or measured; Federal government has no system to measure subcontracting activity Lack of system particularly hurts small businesses, who are typically subcontractors Lack of system fails to accurately reflect small business participation in Federal contracting Subcontracting reporting system needed (was in SBCDP but repealed)

Discussion Does current policy and practice hinder the private or public sectors, with regard to small business and subcontracting? How can subcontracting in the A/E field be measured to accurately reflect the extent of small business participation?

COFPAES 1856 Old Reston Ave., Suite 205 Reston, VA John M. Palatiello, Administrator (703)