Tridentis LLC

B-412539 Mar 18, 2016 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Tridentis LLC, of Alexandria, Virginia, protests the terms of request for proposals (RFP) No. W912BU-16-R-0004, issued by the Department of the Army, U.S. Army Corps of Engineers, for naval architecture and marine engineering services. Tridentis maintains that the agency impermissibly has issued the RFP using the procedures of the Brooks Act, 40 U.S.C. §§ 1101-1104, for acquiring architect-engineer (A-E) services. We deny the protest. We deny the protest. View Decision Decision Matter of:  Tridentis LLC File:  B-412539 Date:  March 18, 2016 Ronald S. Perlman, Esq., and Elizabeth N. Jochum, Esq., Holland & Knight, LLP, for the protester. Maureen A. McAndrew, Esq., and Dana P. Friedman, Esq., Department of the Army, U.S. Army Corps of Engineers, for the agency. Scott H. Riback, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging agency’s decision to use Brooks Act procedures to acquire naval architectural and marine engineering services is denied; there is nothing on the face of the statute that would preclude using the Brooks Act for acquiring naval architectural and marine engineering services, nor is there anything on the face of the statute that limits its application to the acquisition of architect-engineering services solely in connection with the construction of a building, structure or facility. DECISION Tridentis LLC, of Alexandria, Virginia, protests the terms of request for proposals (RFP) No. W912BU-16-R-0004, issued by the Department of the Army, U.S. Army Corps of Engineers, for naval architecture and marine engineering services.  Tridentis maintains that the agency impermissibly has issued the RFP using the procedures of the Brooks Act, 40 U.S.C. §§ 1101-1104, for acquiring architect-engineer (A-E) services. We deny the protest. The RFP contemplates the award of up to two indefinite-delivery, indefinite-quantity contracts to perform naval architecture, marine engineering, dredging engineering, electrical, structural, modeling, computer-aided design and drafting services, as well as preliminary design, detailed (final) design and related design studies, analysis and reports.  RFP Synopsis at 1.  The contracts to be awarded are principally for the design of various boats, floating structures and accessories.  Id. at 2.  The RFP requires, among other things, that all work produced under the contract be reviewed and approved by a registered professional engineer (PE).  The sole question in this protest is whether or not the agency properly may use the procedures of the Brooks Act to acquire naval architecture and marine engineering services.  By way of background, the Brooks Act requires federal agencies to select contractors for A-E work on the basis of demonstrated technical competence and qualifications.  The procedures do not include price competition.  Rather, under Brooks Act procedures, the agency selects at least three concerns and ranks them in order of preference.  The agency then conducts negotiations with the first-ranked firm (that is, the firm selected as the most highly qualified to provide the services), in an effort to establish a fair and reasonable level of compensation; if those negotiations fail, the agency then negotiates with the second-ranked firm, and so on, until agreement is reached.  See 40 U.S.C. § § 1103, 1104. The protester maintains that the Brooks Act may only be used where an agency is acquiring A-E services in connection with the construction of a building, structure or facility that is immovable and erected on land.  According to the protester, Congress never intended the Brooks Act to be applicable to naval architecture and marine engineering services.  Tridentis argues that the agency instead is required to use negotiated procurement procedures under part 15 of the Federal Acquisition Regulation (FAR) to meet its requirements. The agency responds that it properly may use Brooks Act procedures for its acquisition.  The agency maintains that the definition of A-E services included in the statute and FAR part 36 is broad enough to encompass the services it is soliciting.  We agree with the agency that the language of the Brooks Act is broad enough to encompass the solicited services.  The Brooks Act provides as follows: Architectural and engineering services.  The term "architectural and engineering services" means--      (A) professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide the services described in this paragraph;      (B) professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, ...