Environmental Revisions to FAR Part 36.6 for A/E Services Opposed by AIA
On May 31, 1995, the Federal Acquisition Regulation (FAR) Council issued a regulation
amending the Federal Acquisition Regulation (FAR) to incorporate policies for the
acquisition of
environmentally preferable and energy-efficient products and services. The rule established
a
preference for the use of recoverable materials in the construction of federal facilities. The
rule
amends, in part, FAR Part 36 to clearly reflect the Government's preference for the
acquisition of
environmentally sound and energy-efficient services and to establish an affirmative
procurement
program favoring items containing the maximum practicable content of recovered
materials. The
new regulations, which were opposed by the AIA and ASCE, make three significant
changes to
FAR Part 36.6, Architect-Engineer Contracts. First, under section 36.601-3 "Applicable
Contracting procedures," A/Es hired by the government are required to "specify use of
the
maximum practicable amount of recovered materials in the construction design
specifications"
for
the construction of a proposed federal facility. In other words, A/Es must specify the use
of
construction materials made of materials recovered from solid waste. The AIA argued that
requiring the execution of environmentally related tasks may not be practical for all
projects.
Therefore, if the project requires an environmentally related task to be completed, it
should be
made part of a project's requirements, not the FAR.
Second, under section 36.602-1 "Selection criteria," A/Es are required to have
"Demonstrated
success in prescribing the use of recovered materials and achieving waste reduction and
energy
efficiency in facility design." The AIA argued that inclusion of this selection criteria is
appropriate
in the project's requirements, not the FAR. Also, "demonstrated success" precludes new
and
small
businesses from being considered for a project. Finally, under section 36.602-3
"Evaluation
board
functions," requires the evaluation board to hold discussions "...with at least three of the
most
highly qualified firms regarding concepts, the relative utility of alternative methods and
feasible
ways to prescribe the use of recovered materials and achieve waste reduction and energy
efficiency in facility design." The AIA argued that this provision administratively amends
the
Brooks Act by limiting the discretion an evaluation board has in awarding a contract since
they
are precluded from considering a design proposal from a qualified firm unless it prescribes
the
use
of "recovered materials" in the facility's design. Further, certain A/E related services as
defined
by
the Brooks A/E Act such as "studies, investigations, surveying and mapping, tests,
evaluations,
consultations, comprehensive planning, program management, soils engineering,drawing
reviews,
preparation of operating and maintenance manuals" are not directly related to facility
design and
not covered under the interim rule. The omission of these services appears to automatically
exclude them from the project competition. Due to the efforts by the AIA and engineering
groups,
the Federal Acquisition Regulatory (FAR) Council excluded architect and engineering
(A/E)
services from the final rule that creates, for federal agencies, a
preference for making multiple awards of task and delivery order contracts using price
competition. Instead, agencies are only authorized to procure A/E services under this type
of
contracting method if qualifications based selection procedures, which requires A/E firms
to
compete on the basis of qualifications,not price, are used.
Based on a report by the American Institute of Architects
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