ACEC Applauds a Final Rule Reinforcing the Prohibition Use of Reverse Auctions for Architect-Engineer (A/E) Services

ACEC applauds a new Federal Acquisition Regulation (FAR) final rule prohibiting the use of reverse auctions, since price should never be the only selection factor for architect-engineer (A/E) services.

The rule clarifies a prohibition on the use of reverse auctions for procurements of architect-engineer (A/E) services that are subject to the Brooks Act (40 U.S.C. chapter 11) by adding language to FAR 17.803. Reverse auctions do not comply withthe qualifications-based selection processes required by statute and implemented at FAR subpart 36.6. The rule also prohibits reverse auction use for Design-Build contracts.

For years, ACEC has supported our member firms by opposing any acquisition process that allows price to be the primary selection factor. The Construction Consensus Procurement Act of 2021 (P.L. 117-28, July 26, 2021) required a rulemaking to establish a definition for complex, specialized, or substantial design and construction services to include many of the original prohibitions from a 2020 statute and limits the prohibition to procurements valued above the simplified acquisition threshold. The FAR Council opened FAR case 2023-003, Prohibition on the Use of Reverse Auctions for Complex, Specialized, or Substantial Design and Construction Services, to implement the 2021 statute.

The Final Rulewas published in the Federal Registeron July 30, 2024 and became effective on August 29, 2024.

ACEC will continue to monitordevelopments on theissue. A FAR proposed rulepublished in the Federal Registeron August 29, 2024 considers reverse auction use for construction services valued at or below the simplified acquisition threshold (SAT), if a contracting officer determines that market research supports the use of a reverse auction and the use of a reverse auction is not otherwise prohibited by statute (i.e., 40 U.S.C. chapter 11, commonly known as the Brooks Architect Engineer Act).

Please share your thoughts with the Federal Agencies & Procurement Advocacy Committee staffed by new ACEC Vice President for Federal & International ProgramsBradley Saull at [email protected].