posal will serve as the basis for negotiation.

§ 1-4.911 Prohibitions.

Agencies shall not permit all or any part of an unsolicited proposal to be used as the basis, or as a portion, of a solicitation, or in negotiation with other firms unless the offeror is notified of and agrees to the intended use. However, nothing herein precludes the Government from using any data, concept, or idea which it could have used had the unsolicited proposal not been submitted. With respect to data (see § 1-4913(a)) tendered in an unsolicited proposal, disclosure of information which concerns or relates to trade secrets, processes, operations, style of work, or apparatus, and other matters may result in the imposition of a criminal penalty pursuant to the provisions of 18 U.S.C. 1905.

[42 FR 39215, Aug. 3, 1977; 42 FR 41636, Aug. 18, 1977]

§ 1-4.912 Interagency coordination.

When it is determined that a meritorious unsolicited proposal is not related to the mission of the recipient agency or may be of interest to other agencies in addition to the recipient agency, the recipient agency may identify for the offeror other agencies whose missions bear a relationship to the subject matter of the unsolicited proposal.

§ 1-4.913 Limited use of data.

(a) An unsolicited proposal may inIclude data which the offeror does not want disclosed for any purpose other than evaluation of the proposal. If the offeror wishes to impose such a restriction on his unsolicited proposal he shall mark the title page with the following legend:

USE AND DISCLOSURE OF DATA

This data shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than to evaluate the proposal, Provided, That if a contract is awarded to this offeror as a result of or in connection with the submission of this data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the contract. This restriction does not limit the Government's right to

use information contained in the data if it is obtainable from another source without restriction. The data subject to this restriction is contained in Sheets

The offeror also shall mark each sheet which he wishes to restrict with the following legend:

Use or disclosure of proposal data is subject to the restriction on the title page of this Proposal.

(b) An unsolicited proposal shall be returned to the offeror if it is marked with a different legend than that provided in paragraph (a) of this § 14.913. The offeror shall be informed that the proposal cannot be considered because it is impracticable for the Government to comply with the legend. However, he shall also be informed that the proposal will be considered if it is resubmitted with the legend provided in paragraph (a).

(c) Except as provided in paragraphs (d) or (e) below, the coordinating office (see § 1-4.908) shall place a cover sheet on the proposal or the proposal shall be otherwise clearly marked as follows unless the offeror gives a clear written indication that he does not wish to impose any restrictions on the disclosure or use of the data contained in the proposal.

UNSOLICITED PROPOSAL

USE OF DATA LIMITED

All Government personnel handling this proposal shall exercise EXTREME CARE to insure that the information contained herein is not disclosed outside the Government and is NOT DUPLICATED, USED, OR DISCLOSED in whole or in part for any purpose other than to evaluate the proposal, without the written permission of the offeror (except that if a contract is awarded on the basis of this proposal, the terms of the contract shall control disclosure and use).

This notice does not limit the Government's right to use information contained in the proposal if it is obtainable from another source without restriction.

This is a Government notice, and shall not by itself be construed to impose any liability upon the Government or Government personnel for any disclosure or use of data contained in this proposal.

The notice in this paragraph (c) is used by the Government solely as a manner of handling unsolicited proposals which will be compatible with

the provisions of this section. Nevertheless, the use of the notice in this paragraph (c) shall not be used by the Government to justify the withholding of a document (record) nor to improperly deny access to a document to an individual (the public) where an obligation is imposed on the agency the Freedom of Information Act, 5 U.S.C. 552, as amended. Matters which the prospective offeror considers to be trade secrets and commercial or financial information and privileged or confidential should be identified by the offeror upon submission to the Government in accordance with paragraph (a) of this § 1-4.913.

(d) If an unsolicited proposal is received without any restrictive legend from an educational or nonprofit organization or institution and it is necessary or appropriate to obtain an evaluation of the proposal outside the Government by leading scientists or other preeminent experts, to ascertain the merits of the proposal, a cover sheet shall be placed on the proposal or the proposal shall be clearly marked with the legend set forth in paragraph (c), above, modified by changing the first two words to read "All Government and non-Government", and by deleting the words "is not disclosed outside the Government and". A written agreement shall be obtained from any non-Government evaluator that the evaluator will not disclose information in the proposal outside the Government. If the proposal is received with the restrictive legend specified in paragraph (a) of this § 1-4.913, the modified cover sheet shall also be used and permission shall be obtained from the offeror, prior to release, for the release of the proposal for outside evaluation.

(e) If an unsolicited proposal is received from other than an education or nonprofit organization or institution irrespective of whether it contains a restrictive legend, and it is necessary or appropriate to obtain an evaluation of the proposal by Government personnel outside the agency and/or by leading scientists or preeminent experts outside the Government, written permission shall be obtained from the offeror prior to release of the proposal for such evaluation. A cover sheet

shall be placed on the proposal or the proposal shall be clearly marked with the notice set forth in paragraph (c), above, or as modified in accordance with paragraph (d), above, if appropriate. A written agreement shall be obtained from any non-Government evaluator that the evaluator will not disclose information in the proposal outside the Government.

[42 FR 39215, Aug. 3, 1977; 42 FR 41636, Aug. 18, 1977]

Subpart 1-4.10-Architect-Engineer Services

SOURCE: 38 FR 33594, Dec. 6, 1973, unless otherwise noted.

§ 1-4.1000 Scope of subpart.

This subpart contains the general policies and procedures for the procurement of professional architect-engineer services, either individually or together, by contract.

§ 1-4.1001 General policy.

Pursuant to Public Law 92-582 dated October 27, 1972, which amended the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 471, et seq.), it is the policy of the Federal Government to publicly announce all requirements for architect-engineer services, and to negotiate contracts for architect-engineer services on the basis of demonstrated competence and qualification for the type of professional services required and at fair and reasonable prices.

§ 1-4.1002 Definitions.

(a) "Firm" means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice the professions of architecture or engineering.

(b) "Agency head" means the Secretary, Administrator, or head of a department, agency, or bureau of the Federal Government.

(c) "Architect-engineer services" are those professional services associated with research, development, design and construction, alteration, or repair of real property, as well as incidental services that members of these professions and those in their employ may

logically or justifiably perform: Including studies, investigations, surveys, evaluations, consultations, planning, programing, conceptual designs, plans and specifications, cost estimates, inspections, shop drawing reviews, sample recommendations, preparation of operating and maintenance manuals, and other related services.

§ 1-4.1003 Public announcements.

To ensure the broadest publicity concerning the Government's interest in obtaining architect-engineer services, each agency head shall develop notices in accordance with § 1-1.1003 with respect to individual projects.

§ 1-4.1004 Selection.

§ 1-4.1004-1 Establishment of architectengineer evaluation boards.

(a) Each agency head shall establish one or more permanent or ad hoc architect-engineer evaluation boards to be composed of an appropriate number of members who, collectively, have experience in architecture, engineering, construction, and related procurement matters. Members shall be appointed from among highly qualified professional employees (intraagency and interagency) and private practitioners (if provided for by agency procedures) engaged in the practice of architecture, engineering or related professions. One Government member of each board shall be designated as the chairman.

(b) No firm or organization shall be eligible for consideration for a contract during the period in which any of its principals or associates are participating as members of the procuring agency's evaluation board.

[38 FR 33594, Dec. 6, 1973, as amended at 40 FR 30440, July 18, 1975]

§ 1-4.1004-2 Functions of the evaluation boards.

Under the general authority of the agency head's technical staff, the agency architect-engineer evaluation boards shall perform the functions prescribed by this section.

(a) Collect and maintain current data files on architect-engineer firms, including information on the qualifications of their members and key em

as

ployees and past experience on various types of construction projects. Standard Form 254, Architect-Engineer and Related Services Questionnaire, supplemented (when applicable) by Standard Form 255, Architect-Engineer and Related Services Questionnaire for Specific Project shall be used for this purpose. Information from other sources (such as other clients, other members of the profession, managers or occupants of facilities previously designed, and assessments by the procuring agency itself on prior projects awarded to a firm) may also be included in the files.

(b) When procurement of architectengineer services is proposed, the board shall review the current data files on eligible firms, including files established on receipt of Standard Form 254 and Standard Form 255, when applicable, in response to the public notice of a particular contract. The board shall evaluate the firms in accordance with § 1-4.1004-3. After making this review and technical evaluation, the board shall hold discussions with not less than three of the most highly qualified firms regarding anticipated concepts and relative utility of alternative methods of approach for furnishing the required services. Architect-engineer fees shall not be considered in these discussions.

(c) Prepare a report for submission to the agency head or his authorized representative recommending, in the order of preference, no less than three firms that are considered most highly qualified to perform the required services. This report shall include in sufficient detail the extent of the evaluation and review and the considerations upon which the recommendations were based.

[40 FR 30440, July 18, 1975]

§ 1-4.1004-3 Evaluation criteria.

In evaluating architect-engineer firms, the architect-engineer evaluation board shall apply the following criteria, other criteria established by agency regulation, and any criteria set forth in the public notice on a particular contract:

(a) Specialized experience and technical competence of the firm (includ

ing a joint venture or association) with the type of service required;

(b) Capacity of the firm to perform the work (including any specialized services) within the time limitations;

(c) Past record of performance on contracts with Government agencies and private industry with respect to such factors as control of costs, quality of work, and ability to meet schedules; and

(d) Familiarity with the area in which the project is located.

§ 1-4.1004-4 Action by agency head or his authorized representative.

(a) The agency head (or the responsible official to whom the authority has been delegated) shall review the recommendations of the architect-engineer evaluation board and shall, in concert with appropriate technical and staff representatives, make the final selection, in the order of preference, of the firms considered best qualified to perform the work. Should that final selection of the best qualified firms be other than as recommended by the architect-engineer evaluation board, the agency head shall provide a complete written documentation of his decision which shall become a part of the contract file.

(b) The agency head or his authorized representative shall inform the board of his decision which will serve as an authorization for the contracting officer to commence negotiation. [38 FR 33594, Dec. 6, 1973, as amended at 40 FR 30440, July 18, 1975]

§ 1-4.1004-5 Procedures for procurements estimated not to exceed $10,000. When authorized by the agency head, one of the procedures set forth in paragraphs (a) and (b) of this section may be used in lieu of the procedures prescribed by § 1-4.1004–2(b) and (c) and actions prescribed by § 14.1004-4.

(a) Selection by the board. After reviewing and evaluating architect-engineer firms in accordance with § 14.1004-2(b), the board shall prepare a report for submission to the contracting officer listing in the order of preference, a minimum of three firms which are considered the most highly qualified to perform the required serv

ices. This report shall include sufficient details of the extent of the evaluation and review made and the considerations upon which the selection is based. Further, the report shall serve as an authorization to the contracting officer to commence negotiation with the highest qualified firm.

(b) Selection by the chairman of the board. When, in the judgment of the board, it is considered that board action is not required in connection with a particular selection of architect-engineer firms, the following procedures shall be followed:

(1) The chairman of the board shall perform the functions required under § 1-4.1004-2(b);

(2) The chairman of the board shall prepare a report in the same manner as prescribed by § 1-4.1004-2(c) except that the report shall be submitted to the agency head's representative for concurrence;

(3) The agency head's representative shall review the report and concur with the selection or return the report to the chairman for such action as he may consider necessary; and

(4) Upon receipt of an approved report, the chairman of the board shall furnish the contracting officer a copy of the report which will serve as an authorization to commence negotiation.

§ 1-4.1005 Negotiation procedures.

§ 1-4.1005-1 General.

(a) Each agency head is responsible for negotiation of contracts for architect-engineer services. This responsibility may be delegated to a contracting officer. The contracting officer shall use the services of technical, legal, auditing, pricing, and other specialists in the agency to the extent deemed appropriate (see §§ 1-3.801-2 and 1-3.801-3). Negotiations shall be directed toward:

(1) Making certain that the architect-engineer has a clear understanding of the essential requirements;

(2) Determining that the architectengineer will make available the necessary personnel and facilities to accomplish the work within the required time;

(3) Determining, where applicable, whether the architect-engineer can provide a design that will permit construction of the facility at a construction cost not to exceed the limit established for the project; and

(4) Reaching mutual agreement on the provisions of the contract, including a fair and reasonable price for the required work.

(b) The amount of the fee (price) that may be paid to an architect-engineer firm under a cost reimbursement contract for the production and delivery of the designs, plans, drawings, and specifications may not exceed 6 percent of the estimated construction cost of the project, exclusive of the amount of the fee (see 41 U.S.C. 254). The statutory limitation shall apply also to the fee paid to an architect-engineer for the performance of such services under a fixed-price contract. This limitation shall be applied on an individual project basis.

§ 1-4.1005-2 Conduct of negotiations.

Negotiations shall be conducted initially with the architect-engineer firm given first preference under the procedures set forth in § 1-4.1004. If a mutually satisfactory contract cannot be negotiated with that firm, the contracting officer shall obtain a best and final offer, in writing, from the contractor, and with the assistance of his technical staff formally terminate the negotiation and notify the firm. Negotiations then shall be initiated with the subsequently listed firm in the order of preference and this procedure shall be continued until a mutually satisfactory contract has been negotiated. If negotiations fail with the listed firms, additional firms shall be selected in accordance with § 1-4.1004 and negotiations shall continue in the manner described above.

§ 1-4.1005-3 Independent Government estimate.

Prior to the initiation of negotiations, the procurement agency shall develop an independent Government estimate of the cost of the required architect-engineer services based on a

detailed analysis of the costs expected to be generated by the work. Consideration shall be given to the estimated value of the services to be rendered, the scope, complexity, and the nature of the project. The independent Government estimate shall be revised as required during negotiations to reflect changes in or clarification of the scope of the work to be performed by the architect-engineer. On construction projects, a fee estimate based on the application of percentage factors to project cost estimates of the various segments of the work involved may be developed for comparison purposes, but such a cost estimate shall not be used as a substitute for the independent Government estimate.

§ 1-4.1005-4 Architect-engineer's proposal.

The contracting officer shall request the selected architect-engineer firm to submit its proposal with supporting cost or pricing data in accordance with §§ 1-3.807-3 and 1-3.807-4. Revisions of the proposal and supporting cost or pricing data may be made as required during negotiations to reflect changes in or clarification of the scope of the work to be performed by the architectengineer or findings derived from preaward audits conducted pursuant to § 1-3.809.

§ 1-4.1005-5 Contract price.

Subject to the provisions of § 14.1005-1(b), the contracting officer shall negotiate a price considered fair and reasonable based on a comparative study of the independent Government estimate and the architect-engineer's proposal. Significant differences between elements of the two figures and between the overall figures shall be discussed and the contracting officer shall ascertain the reasons therefor.

§ 1-4.1005-6 Record of negotiation.

Promptly at the conclusion of each negotiation, a memorandum setting forth the principal elements of the negotiations shall be prepared in accordance with the requirements of § 13.811, for use by the reviewing au