FAR 36.209—Construction contracts with architect-engineer firms.
Plain-English Summary
FAR 36.209 addresses a narrow but important conflict-of-interest rule in federal construction contracting: the Government generally may not award the construction contract for a project to the same architect-engineer (A-E) firm that designed that project, or to that firm’s subsidiaries or affiliates. The section also recognizes a limited exception: the award may proceed only if the head of the agency, or an authorized representative, approves it. In practice, this rule is meant to preserve the integrity of the procurement process, reduce the risk of self-dealing or biased design decisions, and protect the Government from situations where the designer could gain an unfair advantage in the construction competition. It applies specifically to construction contracts, but it is triggered by the relationship between the construction contractor and the project designer, including corporate family relationships such as subsidiaries and affiliates. For contracting officers and program officials, the section requires early screening of the design firm’s identity and corporate relationships before award. For contractors and A-E firms, it means that designing a project can create a significant restriction on later bidding for the construction work unless a formal agency-level approval is obtained.
Key Rules
Designer generally barred
A firm that designed the project may not be awarded the construction contract for that same project. The prohibition is broad and is intended to prevent the designer from competing for the build phase of work it helped define.
Subsidiaries and affiliates included
The restriction extends beyond the design firm itself to its subsidiaries and affiliates. Agencies must therefore look at corporate relationships, not just the exact legal name on the proposal or bid.
Agency approval exception
The construction award may be made to the design firm, or its subsidiaries or affiliates, only if the head of the agency or an authorized representative approves the award. This is an exception, not the default rule, and it should be documented.
Applies to construction awards
This section is limited to contracts for construction of a project. It does not itself bar the design firm from other unrelated work, but it does restrict award of the construction phase for the same project.
Conflict screening required
Before award, the contracting activity must identify whether the apparent successful offeror is the project designer or is related to the designer. This screening is essential to avoid an improper award and later protest or corrective action.
Responsibilities
Contracting Officer
Verify whether the apparent awardee designed the project or is a subsidiary or affiliate of the designer. If the restriction applies, do not award the construction contract unless the required agency-level approval is obtained and properly documented.
Head of the Agency or Authorized Representative
Review and approve any proposed exception allowing award of the construction contract to the design firm, its subsidiary, or affiliate. Ensure the approval is made at the proper level and supported by the facts.
Architect-Engineer Firm
Disclose or be prepared to identify its role in designing the project and any corporate relationships that may trigger the restriction. The firm should not assume it may later compete for the construction contract without agency approval.
Contracting Activity / Program Office
Coordinate early to determine whether the project designer is involved in the construction procurement and to flag any potential conflict before solicitation or award.
Agency Legal or Policy Officials
Advise on whether the proposed approval satisfies agency requirements and whether the firm qualifies as a subsidiary or affiliate for purposes of the restriction.
Practical Implications
This rule can disqualify a well-known design firm from winning the build contract on the same project, even if it is otherwise the lowest-priced or best-rated offeror.
The biggest pitfall is overlooking corporate relationships; a subsidiary or affiliate may be treated the same as the design firm itself.
Contracting officers should check the design history of the project early, not after proposals are evaluated, to avoid delays or a flawed award decision.
If an exception is contemplated, the approval should be explicit and documented at the proper agency level; informal concurrence is not enough.
Contractors that provide both design and construction services should manage internal firewalls and track project roles carefully to avoid bidding on work they are barred from receiving.
Official Regulatory Text
No contract for the construction of a project shall be awarded to the firm that designed the project or its subsidiaries or affiliates, except with the approval of the head of the agency or authorized representative.