Attachment A Updated Procedures Selection of TOs on AE IDCs_9 MAR 2023.pdf

DEPARTMENT OF THE ARMY

U.S. ARMY CORPS OF ENGINEERS

441 G STREET, NW

WASHINGTON, D.C. 20314-1000

CECT-ZA (715e) 09 March 2023

MEMORANDUM FOR Acquisition Community

SUBJECT: Updated Procedures for the Selection of Task Orders on Architect-Engineer (A-E) Indefinite Delivery Contracts (IDCs)

1. References:

a. 40 United States Code, Chapter 11, Selection of Architects and Engineers statute (herein referred to as the Brooks Act), (https://uscode.house.gov/browse.xhtml).

b. Federal Acquisition Regulation (FAR) Subpart 16.5, Indefinite-Delivery Contracts, (https://www.acquisition.gov/).

c. FAR Subpart 36.6, Architect-Engineer Services, (https://www.acquisition.gov/).

d. Engineer Pamphlet (EP) 715-1-7, Architect-Engineer Contracting in USACE, 29 February 2012, (https://www.publications.usace.army.mil/).

e. James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Section 802, Task and Delivery Order Contracting for Architectural and Engineering Services (2023 NDAA).

2. Purpose:

a. The Directors’ Policy Memorandum CECT-ZA (415-17b-1) published 14 April 2021, subject: Updated Procedures for the Selection of Task Orders on Architect- Engineer Indefinite Delivery Contracts (IDCs) is superseded and replaced with this memorandum.

b. The purpose of this memorandum is to implement section 802 of the 2023 National Defense Authorization Act (NDAA). Reference 1.e., Section 802 reinforces an agency’s obligation to comply with the qualification-based selection procedures in the Brooks Act for each order for Architect-Engineer (A-E) services issued under a multiple-award task order contract (MATOC). Section 802 also clarifies that an agency may not routinely request additional information from contractors for every task order requirement.

CECT-ZA (715e) SUBJECT: Updated Procedures for the Selection of Task Orders on Architect-Engineer (A-E) Indefinite Delivery Contracts (IDCs)

c. This memorandum supersedes the task order selection procedures in the current EP 715-1-7 (2012 edition) (the EP) until such time that the EP is updated. To the extent that application of this memorandum conflicts with the EP, this memorandum will take precedence. To the extent that application of this memorandum conflicts with law or regulation, the law or regulation will take precedence.

3. Applicability:

This memorandum is applicable to all Headquarters USACE elements, Divisions, Districts, Centers, Laboratories, and Field Operating Activities for all A-E Brooks Act selections under IDCs.

4. Definitions:

a. Indefinite Delivery Contract (IDC) (also known as an Indefinite Delivery/Indefinite Quantity Contract). An IDC provides for the acquisition of an indefinite quantity, with stated limits, of supplies or services during a fixed period. The Government places orders for individual requirements through the use of individual task orders. See FAR Subpart 16.5.

b. Single Award Task Order Contract (SATOC). A SATOC is a single base contract with a specific scope that is awarded to a single A-E firm under which task orders are issued.

c. Multiple Award Task Order Contract (MATOC). A MATOC is a base contract awarded to a pool of a minimum of three A-E firms issued from a single solicitation. The Government applies qualifications-based procedures, consistent with the Brooks Act, to select an individual firm from the MATOC pool and then negotiates the award of a task order for each requirement that arises within scope of the MATOC. The MATOC’s total capacity, or maximum dollar amount to be ordered over the contract’s stated period of performance, is shared among the pool of A-E firms that were awarded the base contract.

5. Implementation:

a. Procedures specified in this memorandum shall apply to all A-E MATOCs and all task order selections under A-E MATOCs. For MATOCs previously awarded with fewer than three (3) firms in the pool, Districts and Centers should work closely with the Senior Contracting Official (SCO) to determine whether a justification and approval (J&A) document is necessary to continue ordering under that MATOC.

SUBJECT: Updated Procedures for the Selection of Task Orders on Architect-Engineer (A-E) Indefinite Delivery Contracts (IDCs)

6. Base Contracts:

a. SATOCs. The selection and award of A-E SATOCs follow qualifications-based procedures per the Brooks Act (Reference 1.a.). Districts and Centers may award SATOCs without having to justify why multiple awards are not appropriate (FAR 16.500(d)). As a result, when an A-E SATOC has been properly awarded and no other SATOC awarded by the District or Center includes the same or similar (i.e., overlapping) scope of work, Districts and Centers need not comply with the procedures required for MATOCs as outlined below.

b. MATOCs. The selection and award of A-E MATOCs follow qualifications-based procedures per the Brooks Act, and the selection and award of task orders under A-E MATOCs must also be executed as qualifications-based contract actions, per the Brooks Act and EP 715-1-7, following the requirements of FAR 16.500(d) and Subpart

36.6 as clarified in recently enacted legislation (Reference 1.e.).

c. Districts and Centers shall not award multiple A-E SATOCs that have the same or overlapping scopes of work from either a single or multiple synopses. This means that the breadth of each SATOC synopsis scope should be narrowed, both substantively and geographically, to ensure that only one contractor is evaluated as the most highly qualified firm to perform the entire scope of services under the awarded

SATOC.

d. Selection of at Least Three Firms. When awarding a MATOC, it is necessary to select and award the MATOC to at least three firms to comply with FAR 16.500(d) and Subpart 36.6.1 Agencies must follow the Brooks Act when awarding contract actions for A-E services, which is a recognized “competitive procedure” and exception to full and open competition per FAR 6.102(d)(1). Because the Brooks Act procedures require agencies to consider at least three firms for each proposed project, any deviation from this recognized “competitive procedure” requires justification and approval. Accordingly, if three firms are not part of the MATOC ordering pool, making it non-compliant with the Brooks Act, the procedures in FAR Subpart 36.6, and FAR 6.102(d)(1), the MATOC (base contract) will require justification and approval in accordance with FAR Subpart

6.3 before any orders may be issued under the MATOC.

1 The Brooks Act requires discussions with “at least three firms,” and after discussions have been conducted, it also requires the agency to select, in order of preference, “at least three firms” considered most highly qualified to perform the services required. (See 40 U.S.C. 1103(c), (d); see also FAR 36.602- 3(c), (d).) Because agencies must comply with the Brooks Act when ordering under MATOCs, all MATOC award pools must have at least three contractors so agencies can fulfill the evaluation requirements of the Brooks Act for each task order award.

SUBJECT: Updated Procedures for the Selection of Task Orders on Architect-Engineer (A-E) Indefinite Delivery Contracts (IDCs)

e. Avoiding Overly Broad Scopes. It is important that the scopes of work for an A-E IDC (SATOCs and MATOCs alike) not be overly broad (e.g., all manner of A-E work that could potentially be performed within a region). The use of such broad scopes makes it difficult to comply with the 2023 NDAA, the Brooks Act, and implementing regulations (References 1.a through 1.e.).

f. Annual Updates of SF 330s. Because most A-E IDCs have extended performance periods of five (5) years or longer, the information contained in an SF 330 on file, which is used for selection for the base MATOC award pool, can become outdated over the term of an IDC. Per the Brooks Act and FAR 36.603(d), A-E firms will be encouraged to amend their SF 330s to showcase relevant, recently completed projects, to update the resumes, and to provide an updated SF 330 (Part II) for their team around the anniversary date of the base MATOC award. Any changes in key personnel and subcontractors from what was approved in the SF 330 on file shall be reviewed for formal approval by the Contracting Officer as soon as practical per the procedures specified in the EP, FAR 44.204(b), and FAR 52.244-4. Periodic meetings with all MATOC holders are recommended to review anticipated program requirements.

7. Task Order Selection Procedures:

The following selection criteria and procedures shall be used for task order selection among all A-E MATOCs. After the task order requirement is received and validated, the USACE technical lead will provide input to the Contracting Officer regarding which specific A-E contract(s) have scopes that include the specific requirement. Because it is the Contracting Officer’s legal obligation to ensure that any task order issued under an IDC is within the scope of that IDC, the Contracting Officer will approve which contract or suite of contracts encompasses the required scope of services. If the MATOC includes a Small Business reserve pool, the qualifications of the reserve pool must first be considered. When applicable, the Contracting Officer, in consultation with the selection board chair and the local Small Business Specialist, will prepare and execute a DD2579. Neither small business coordination nor a DD2579 is required when the Contracting Officer makes the determination to set-aside requirements under the simplified acquisition threshold.

a. MATOC Task Order Selection Board Composition. The chairperson and any board members shall have the same qualifications as stated in EP 715-1-7. The composition of the selection board should be tailored to the task order requirement, subject to the following limitations:

(1) For task order projects with an estimated value greater than $6.0 million, the chairperson and evaluation board members shall have the same composition as stated in EP 715-1-7.

(A-E) Indefinite Delivery Contracts (IDCs)

(2) For task order projects with an estimated value between the Simplified Acquisition Threshold (SAT) (currently $250K) and $6.0 million, the selection board may consist of as few as two evaluators, including the chairperson.

(3) For task order projects with an estimated value below the SAT, the selection board may consist of a single evaluator in accordance with FAR 36.602-5(b).

b. Evaluating A-E Firms’ Qualifications in Existing SF 330s. The MATOC Task Order selection board must first evaluate the firms’ existing SF 330s against the criteria required by FAR 36.602-1. As part of this evaluation, the selection board will determine whether (1) the qualification data in the firms’ existing SF 330 are sufficient to determine the most highly qualified firm to perform the task order work, or (2) the qualification data in the firms’ existing SF 330 are insufficient to determine the most highly qualified firm to perform the task order work. A Memorandum For Record (MFR) is then prepared documenting the determination. The Contracting Officer will then submit a notification of the task order requirement to all A-E firms, or to those firms in the selected MATOC reserve pool (if applicable), in accordance with paragraph 7.c.(1) or 7.c.(2), below. See Enclosure A for a template MFR.

c. Task Order Requirement Notice (TORN). For each task order awarded under a MATOC, the Contracting Officer shall notify all A-E firms within the selected MATOC pool of the task order requirement. This required notification is called the Task Order Requirement Notice (TORN). All TORNs shall include (1) a short summary of the scope of work and (2) task order-specific selection criteria. The selection criteria shall be listed in order of importance and relative weight, and must include, at a minimum, the qualification-based selection criteria required by FAR 36.602-1.

(1) Simplified TORN. The Simplified TORN process shall be used when the selection board concludes that the Government already has sufficient information in the existing SF 330s to determine the most highly qualified firm to perform the task order requirement and that supplemental information is not needed. When using the Simplified TORN, the TORN must state clearly that supplemental information will not be requested, accepted, or evaluated. See Enclosure B, Simplified TORN Template. Upon issuing the TORN, the selection board may then proceed immediately to evaluate information on hand (SF 330, CPARs) in accordance with the selection criteria.

(2) Request for Supplemental Information (RSI) TORN. The RSI TORN process may be used when the selection board determines that available information within the existing SF 330s is insufficient to determine the most highly qualified A-E firm to perform the task order requirement. See Enclosure C, RSI TORN Template.

(a) The RSI TORN process may not be routinely used, but the Government may request additional information or conduct discussions when available information is

(A-E) Indefinite Delivery Contracts (IDCs) insufficient and supplemental information is necessary to determine the most highly qualified contractor to perform the task order work. Typically, the RSI TORN will be necessary for large, technically complicated projects, but it may also be used whenever supplemental information is necessary to determine the most highly qualified contractor to perform the task order work.

(b) The RSI TORN will require A-E MATOC holders to submit supplemental information that demonstrates the firms’ specific qualifications to perform the task order requirement. The Contracting Officer and selection board must always be mindful of the time and cost associated with responding to the RSI TORN; accordingly, the RSI TORN must be tailored to the specific task order requirement and should only request information needed to determine the most highly qualified contractor to perform the specific task order requirement(s). Additionally, submission of a new, updated SF 330 should not be required at this time, as the RSI TORN should focus on specific information the selection board needs to determine the most highly qualified contractor to perform the specific task order work.

(c) The selection board will then evaluate the supplemental information obtained in response to the RSI TORN along with the information in the firms’ existing SF 330s (and any information obtained from discussions, if necessary) to ensure that the selection board has sufficient information to determine the most highly qualified contractor to perform the task order work.

(d) When using the RSI TORN, the Government must give all MATOC holders in the selected pool sufficient time to respond to the RSI TORN; this will typically be five (5) to 10 business days but may be more or less, depending on the complexity of the task order work. Interviews and discussions will typically occur when using the RSI TORN but interviews and discussions are not required if the selection board has obtained sufficient information in response to the RSI TORN to determine the most highly qualified contractor to perform the task order work.

(e) If fewer than three firms respond to the RSI TORN, justification and approval under FAR Subpart 6.3 will not be required (see paragraph 6.d, supra) provided there are at least three MATOC holders being considered for each task order award. The existing SF 330s of the firms in the selected pool are all given consideration for the task order award regardless of whether supplemental information is provided in response to the RSI.

d. Selection Memorandum. Following the evaluation, the selection board shall prepare a selection memorandum recommending, in order of preference, a ranking of all the firms in the selected pool that are considered by the board to perform the task order work.

(A-E) Indefinite Delivery Contracts (IDCs)

(1) The selection memorandum must apply the selection criteria to the A-E firms’ qualification information and state the rationale for the ranking of the most highly qualified firms in sufficient detail to allow the selection authority to understand the basis for the recommendation. A detailed selection report using formal language is not necessary, but as with any procurement document, it must be sufficiently detailed to support the selection decision.

(2) The selection report documentation need not be extensive, but it must clearly reflect (a) the information that was evaluated (i.e., information in the SF330 and any supplemental information received or discussions held); and (b) the results of the evaluation of the firms’ qualifications as applied to the selection criteria used for the task order.

e. Selection Decision. The task order selection authority making the selection decision shall be designated in accordance with AFARS 5136.602-4 and 5136.602-5. It is recommended that the selection authority for task orders greater than $6.0M be the Chief of the District or Center Engineering Division. The task order selection authority will review the recommendations prepared by the selection board and make the final selection decision. FAR 36.602-4 provides guidance if the selection authority does not agree with the recommendations of the selection board.

f. Notification and Debriefings. All firms that are sent a TORN will be promptly notified within three (3) business days of the approved selection decision. Unsuccessful offerors for task orders greater than $6.0M [threshold set by FAR 16.505(b)(iv)] will be given the opportunity for a debriefing in accordance with EP 715-1-7 and FAR 16.505(b)(6). Debriefings are not required for any task order award estimated to be below that threshold; however, debriefing may be provided upon request.

8. Update: Engineer Pamphlet (EP) 715-1-7 and the USACE Acquisition Instruction (UAI) will be updated to reflect these procedures.

SUBJECT: Updated Procedures for the Selection of Task Orders on Architect-Engineer (A-E) Indefinite Delivery Contracts (IDCs)

9. Points of Contact: The points of contact for this memorandum are Mr. Ronnell Booker at (202) 761-8645, or ronnell.booker@usace.army.mil , CECT, and Mr. Kenneth Simmons at (202) 761-7234, or kenneth.c.simmons@usace.army.mil, CECW-EC.

CHRISTINE T. ALTENDORF, P.E. SES EDWARD E. BELK, P.E. SES

Director of Military Programs Director of Civil Works

DAVID W. PITTMAN, P.E. PhD, SES ELIZABETH A. WALKER Director of Research and Development Acting Director of Contracting

DAVID R. COOPER, SES PETE. G. PEREZ, P.E., SES

Chief Counsel Chief of Engineering and Construction

4 Encls

1. Enclosure A – Task Order Board MFR Template

2. Enclosure B – Simplified TORN Template (no request for supplemental information)

3. Enclosure C – RSI TORN Template

4. Enclosure D – AE TORN Process Flow Chart

PEREZ.PETE.

G.1132012314

Digitally signed by

PEREZ.PETE.G.1132012314

Date: 2023.03.09 16:31:41 -05'00'

WALKER.ELIZABE

TH.A.1398397815

Digitally signed by

WALKER.ELIZABETH.A.139839781

Date: 2023.03.17 08:47:08 -04'00'

PITTMAN.DAVID

.W.1230771789

Digitally signed by

PITTMAN.DAVID.W.1230771789

Date: 2023.04.03 10:17:34 -05'00'

ALTENDORF.CHRISTI

NE.T.1230956029

Digitally signed by

ALTENDORF.CHRISTINE.T.1230956029

Date: 2023.03.23 09:04:32 -04'00'

BELK.EDWARD.E.J

R.1230784031

Digitally signed by

BELK.EDWARD.E.JR.1230784031

Date: 2023.03.31 18:18:23 -04'00'

COOPER.DAVID

.R.1295877355

Digitally signed by

COOPER.DAVID.R.1295877355

Date: 2023.04.04 17:51:01 -04'00'

SUBJECT: Updated Procedures for the Selection of Task Orders on Architect-Engineer (A-E) Indefinite Delivery Contracts (IDCs)

ENCLOSURE A

TASK ORDER BOARD MFR TEMPLATE

Memorandum For Record [DATE]

Subject: Review of MATOC SF 330’s to determine if sufficient information is available to make selection

1. The SF 330s for the following firms were reviewed to determine if sufficient information is available for selection purposes or if additional information is required.

a. Contract Number A – Contractor

b. Contract Number B – Contractor

c. Contract Number C – Contractor

d. Contract Number D – Contractor

e. Contract Number E – Contractor

2. The scope of the Architect-Engineering services is: (Insert description of Task Order requirement provided by District or Center.)

3. Based upon a review of the existing SF 330s:

a. No supplementary information is required. Selection of the most highly qualified firm and ranking of the alternates can be made based on the information contained in the SF 330s and past performance information available to the Government.

or

b. Supplementary information is required to determine the most highly qualified firm and ranking of the alternates. The supplemental information requested is listed below:

i. [Filled in by Selection Board Chair]

ii. [Filled in by Selection Board Chair]

iii. [Filled in by Selection Board Chair] iv

4. Selection of the most highly qualified firm will use the criteria in FAR 36.602-1.

Recommended: Approved:

Selection Board Chair Contracting Officer

(A-E) Indefinite Delivery Contracts (IDCs)

ENCLOSURE B

Simplified TORN Template

TASK ORDER REQUIREMENT NOTICE for [insert name of the MATOC] No supplemental information is requested or may be submitted

Architectural-Engineering Services are required to: [Insert description of Task Order requirement provided by District or Center.]

This serves as notification of an upcoming task order under the subject IDC.

The Government will review the current SF 330 information on file to determine the most highly qualified firm for this task order project. Additional discussions may occur once the information has been reviewed; however, the intent is to make the selection decision based on the information previously provided. Selection of the most highly qualified firm will use the criteria in

FAR 36.602-1.

The Government’s review will be based solely on the SF 330 on file and past performance information available to the Government. No supplementary information will be accepted or evaluated by the Government. Notification of selection or non-selection will be provided within three (3) business days of the selection decision.

The anticipated date for a selection decision is [insert date].

The anticipated date for the task order award is [insert date].

FEE PROPOSALS ARE NOT DUE AT THIS TIME. A REQUEST FOR PROPOSAL WILL BE

ISSUED TO THE FIRM FOUND MOST HIGHLY QUALIFIED FOR THE SPECIFIC TASK

ORDER.

SUBJECT: Updated Procedures for the Selection of Task Orders on Architect-Engineer (A-E) Indefinite Delivery Contracts (IDCs)

ENCLOSURE C

Request for Supplemental Information (RSI) TORN Template

TASK ORDER REQUIREMENT NOTICE for [insert name of the MATOC] Request for Supplemental Information

Architectural-Engineering services are required to: [insert description of task order requirement]

This serves as notice of an upcoming task order under the subject IDC. You may submit a maximum [X] pages in total of supplemental information to support the selection of your firm as the most highly qualified contractor for this task order. Covers, tabs, and graphics are not needed.

You are requested to provide the following supplemental information for use in conjunction with your SF 330 on file and past performance information available to the Government.

1) [Filled in by Selection Board Chair]

2) [Filled in by Selection Board Chair]

3) [Filled in by Selection Board Chair]

Responses must be returned by [insert time] on [insert date].

The Government will review the technical capabilities, as reflected in the responses to the request for supplemental information above, and information in the current SF 330s on file, as well as relevant past performance, to determine the most highly qualified firm for this task order requirement.

The intent is to make the selection decision based on the information provided. Selection of the most highly qualified firm will use the criteria in FAR 36.602-1. All firms in the pool will be given consideration whether supplemental information is received or not.

This request for supplemental information allows you to provide information not in your SF330 on file, which may be relevant to this task order requirement. Please submit your information in PDF format via email.

The anticipated date for a selection decision is [insert date].

The anticipated date for task order award is [insert date].

FEE PROPOSALS ARE NOT DUE AT THIS TIME. A REQUEST FOR PROPOSAL WILL BE ISSUED

TO THE FIRM FOUND MOST HIGHLY QUALIFIED FOR THE SPECIFIC TASK ORDER.

SUBJECT: Updated Procedures for the Selection of Task Orders on Architect-Engineer (A-E) Indefinite Delivery Contracts (IDCs)

ENCLOSURE D

A-E TORN Process Flow Chart