A&E Services Contract May Not Be Awarded to Unlicensed Offeror Despite Subcontractor’s License

A&E Services Contract May Not Be Awarded to Unlicensed Offeror Despite Subcontractor’s License

The U.S. Court of Federal Claims held that NASA’s award of a contract for A&E Services to an offeror who was not licensed to practice architecture or engineering violated the Brooks Act, 40 U.S.C. § 1101 et seq., see Pub. L. No. 107-217, § 1, 116 Stat. 1129 (2002), as implemented by Federal Acquisition Regulation (“FAR”) Part 36.

The awardee and the government argued that the awardee was entitled to rely on its subcontractor’s license. The court rejected that argument based on, among other reasons, that “only a ‘firm’ may participate in Brooks Act procurement processes or receive a contract for A&E services. See 40 U.S.C. §§ 1103, 1104; FAR § 36.601-4(b).

And a ‘firm’ is defined as ‘an individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice the profession of architecture or engineering.’ 40 U.S.C. § 1102(3); see also FAR § 36.102.” The court concluded that, because the awardee was not itself a licensed firm, it was ineligible under the Brooks Act to receive the award.

The same result would be reached under Puerto Rico law. See CIAPR v. AAA, 131 DPR 735 (1992) and Act No. 173 of August 12, 1988, as amended.