Q. Can we use FTA money for an on-call architectural and engineering services (A&E) contract? We would follow Brooks Act procedures and negotiate direct labor and overhead with the most qualified firm or firms, and the Department would get fee proposals based on those rates for their projects with the appropriate cost analysis being done. Do you see any problems with doing this using FTA money?
A. As long as the firms know the ground rules going in, we do not see a problem. In other words, if you compete for your needs for the next two years in a given area, like surveying, rail realignment, etc. and pick the most qualified A&E using Brooks Act procedures, and then give that firm the work you competed for and promised to give as it becomes available, we do not see a problem. (Reviewed: May 2010)
Q. On an A/E on-call contract for cost estimating (as an example), can we use the contractor for both FTA funded and non-FTA funded projects as long as we had the FTA-specific clauses in the solicitation?
A. As long as the Federal requirements were in the original solicitation, then you can use both funds. A lot of state GSA-type contracts do this, and agencies using FTA funds can use these contracts. (Reviewed: May 2010)
Q. Do I need to follow Brooks Act procedures when procuring material testing services, such as on-site testing of soil back-fill materials?
A. You will note that there are two statutes that define when Brooks Act procedures must be used: 49 USC Section 5325(b) and 40 U.S.C. Section 1102. The latter defines services that include “soils engineering” in paragraph (C). Based on the description of services in this statute, we would conclude that soils testing is an A&E service subject to the Brooks Act. The FTA Best Practices Procurement Manual (BPPM) defines the requirements in Section 6.5 – Architect-Engineer Services. (Revised: May 2010)
Q. Can a transit authority make multiple awards to A&E firms for a discipline such as surveying, when no specific tasks have been identified, and then select the best firm for the specific task to negotiate with? We have several surveying projects that may materialize, but none are certain. We would like to advertise for "Surveying Services" and make multiple awards for on-call services. Then, when a project or task for surveying is identified we would select the best A&E firm for a specific task and negotiate with them. If an agreement could not be made we would proceed to negotiate with the next most qualified firm. The idea is to identify qualified firms for surveying and avoid having to advertise and rank each firm for each task or project.
A. You may make multiple awards to cover your needs for various disciplines, as you described them; e.g., geothermal, railroad, surveying, etc. However, your solicitation needs to describe how the work will actually be assigned, and not leave the process undefined. For example, if you evaluate company A initially as being the best for geothermal work, then all such work should be given to that company as tasks are defined, assuming the company can perform within the timeframes required for the task. You should not leave it to someone's judgment later to withhold work from company A and give it to company B based on a subjective judgment that B would be better than A for this job even though A was evaluated first initially. We would also not let the selected companies update their qualifications during the term of the contract and so be rated higher that they were initially. There should be a finite period for these contract awards, after which a new round of qualifications-based awards would be made. (Revised: May 2010)
Q. Can a cap be placed on provisional overhead rates for an A&E contract? For instance, if the provisional overhead rate was 130%, could there be a 5% cap on that amount subject to the final audited overhead rate?
A. The Best Practices Procurement Manual, Section 6.5 – Architect-Engineer Services, discusses the negotiation of indirect rates with A&E firms and what FTA requires. You can establish provisional billing rates for certain time periods subject to later adjustment when the final rates are audited. You may not impose a ceiling or cap on the final rate to be paid unless the A&E firm freely offers a cap. Provisional rates are established by negotiation and are subject to change by negotiation when circumstances dictate, but provisional rates are not the final rates to be paid. As long as you do not cap the final audited rate that is actually reimbursed, you can negotiate a provisional rate and stipulate it can be changed only by mutual agreement of the parties. (Revised: May 2010)
Q. Brooks Act procedures require that you select and rank the top 3 offerors. What happens if you only receive two proposals? Re-advertising will delay the procurement at least 2-3 months, and there is no guarantee that the grantee will attract a 3rd firm/proposal.
A. The procurement FTA Circular 4220.1F, Ch. VI, paragraph 3f, sets forth the requirement for A&E contracting procedures. Grantees are required to use performance-based qualification criteria in selecting A&E firms. Here, the focus should initially be on whether there was some aspect of your acquisition that was overly restrictive or otherwise had an adverse impact on completion. We would suggest you document the file to note that your solicitation requirements were not restrictive, that the procurement was adequately publicized, and that two firms capable of doing the job responded. (Revised: May 2010)
Q. We are working on an A/E contract and anticipate that it will have three elements for which we can be charged:
- Basic Services
- Additional Services (must be approved in advance by the agency)
- Reimbursable expenses (eligible expenses are detailed in the contract).
We have developed a contract that includes a fixed-price for the Basic Services. The fixed-price does not include compensation for additional services since we do not know if we will need the additional services. The fixed-price also does not include the cost of reimbursable expenses by the Architect because we do not how much these expenses will cost. We want to pay for reimbursable expenses at cost. Additional services will be billed at established hourly labor rates. So anything beyond Basic Services would essentially be compensated on a Time & Materials basis.
A. The problem with mixing payment methods in one contract for similar work is in making sure the contractor is charging properly for fixed-price vs. Time & Materials (T&M) work. Paying for the reimbursable expenses at cost would appear to be less of a problem than paying for labor. If possible you might want to consider issuing change orders to the contract and negotiating the cost of the work on a fixed-price basis before the changes are issued. This would keep all the labor effort in the fixed-price mode and minimize the potential for a dispute with the contractor later as to whether the work should have been charged to you on a T&M basis or recovered as part of the fixed price contract. It is especially problematic to mix payment terms if the contractor’s personnel who are performing the fixed-price work will also be performing the T&M work. This is a prescription for disputes. But if the personnel are different and you can have the contractor support each T&M invoice with the names and hours of persons who worked on the T&M tasks, then it could work. You will need to think about having advance agreements in the contract to address how supervisory or management labor will be charged and other direct costs as well. The issue is that the contractor charges its costs consistently between the fixed price and the T&M portions of the contract. If managers are recovered through overhead on the fixed price portion, for example, then the contractor cannot charge you directly for managers on the T&M portion. (Reviewed: May 2010)
Q. We presently use cost plus fixed fee contracts for architect-engineer projects. In accordance with federal cost principles we perform pre-award, interim cost incurred, and post-award audits of consultant costs. What are the specific audit requirements for federally funded fixed price (lump sum) A/E contracts? A consultant group is proposing MBTA use a fixed-price uniform contract for A/E projects. We are currently analyzing the impacts this proposed contract would have on FTA-funded projects and our ability to comply with our federal agreements.
A. FTA Circular 4220.1F, Ch. VI, paragraph 6a states: “The recipient must obtain a cost analysis when the offeror submits elements (that is, labor hours, overhead, materials, and so forth) of the estimated cost, (such as professional consulting and A&E contracts, and so forth).”
In addition, SAFETEA-LU amended 49 U.S.C. Section 5325 to require the acceptance of FAR indirect cost rates for applicable one-year accounting periods if those rates are not currently in dispute. After the indirect cost rates are accepted as required, the recipient must use those indirect cost rates for contract estimates, negotiation, administration, reporting, and payments, with administrative or de facto ceiling limitations. See, 49 U.S.C. Section 5325(b)(3).
In your evaluation of the A&E cost proposal it is essential that a pre-award audit review of the proposal be conducted as part of the cost analysis required prior to negotiations. FTA does have specific audit requirements for negotiating indirect costs on A&E contracts, and they may be found in the Best Practices Procurement Manual (BPPM), Section 6.5 – Architect-Engineer Services in the paragraph entitled “Negotiating Indirect Costs.” Section 5.2 – Cost and Price Analysis of the BPPM covers the topic of cost and price analysis generally. (Revised: May 2010)
Q. Can I sole source an A/E design contract for a construction project to the same A/E firm that originally had a contract but it was prematurely terminated?
The original firm was designated as 8(a) but was bought out by a large firm or big business halfway through the project. We would like to have the A/E finish the project because a new A/E would likely start from scratch, increasing time and costs. The contract has been terminated and incidentally, the contractor failed to report the firm's intentions until after it was bought out.
A. We would think that your agency has the authority to make determinations leading to non-competitive contract awards. It would seem clear, as you say, that another contractor might well cost more to pick up a project that is already 50% complete, not to mention the professional liability problem (errors and omissions, etc.) of using another A&E contractor's unfinished engineering and design work. You will need to consult with your counsel to be sure of this contracting authority, and if you do have it, then the facts would be determinative for the official making the determination. (Reviewed: May 2010)
Q. Is it FTA's position that consultant services to conduct alternatives analysis/draft environmental impact statement (AA/DEIS) are not considered services to conduct a "feasibility study" under 49 USC Sec. 5325(b)?
A. As used in the transit laws, 'feasibility study' refers to an engineering study and thus will not uniformly include all AA/DEIS work. To determine if the Brooks method is appropriate for your AA/DEIS contract, you must look to the statement of work. You should determine if the work includes tasks that require the services of a professional engineer and, if so, procure the services using the Brooks method. If however, you determine there is no requirement for a professional engineer to complete the work described in your statement of work, the Brooks method should not be used. As a practical matter, most, but not all, contracts for AA/DEIS are likely to require the services of a professional engineer and will require Brooks procedures.(Reviewed: May 2010)
Q. Does solicitation for a Project Manager who will be responsible for the oversight of the implementation of an Intelligent Transportation System such as Communications/CAD/GIS fall under Brooks Act? Typically, Project Manager would be a computer engineer or software engineer.
A. We would not see this project manager's function as an A&E type of service requiring Brooks Act procedures. The BPPM discusses A&E services in Section 6.5 – Architect-Engineer Services. (Reviewed: May 2010)
Q. I have questions regarding procurement rules for A&E and testing services:
- If my firm is contracted to provide Program Management for a Highway Agency, is it a conflict of interest to provide construction management or construction inspection services on projects within their program?
- If I have been contracted as a Construction Manager for a project, can I be selected for a separate contract on the same project for construction inspection services?
- If I complete the design work for a project, can I be selected to perform construction management or construction inspection services for the contract?
A. Conflicts of interest are discussed in the FTA Best Practices Procurement Manual (BPPM), Section 126.96.36.199.2 – Written Standards of Conduct and Conflicts of Interest: Personal and Organizational. We would recommend you read paragraph E – Organizational Conflicts of Interest of this section.
Two problems that can be caused by organizational conflicts of interest are bias and unfair competitive advantage. An organizational conflict of interest occurs where-because of other activities, financial interests, relationships, or contracts – a contractor is unable, or potentially unable, to render impartial assistance or advice to the grantee; the contractor’s objectivity in performing the work is or might be impaired; or a contractor has an unfair competitive advantage.
It is incumbent on the contracting agency to identify potential conflicts of interest and take steps to mitigate them early on in the procurement process. We would expect the contracting officer to advise potential offerors of whether the agency sees the potential for or the appearance of a conflict of interest in the situations you describe. The key issue would appear to be the problem of bias in your advice or decisions in providing management or oversight services for projects that you are also performing directly for that agency. Having to evaluate your own company’s performance might reasonably be expected to impair your judgment and advice and would be a conflict of interest. The other problem that may exist in performing design work for a project and then competing for follow on work is that of unfair competitive advantage. This could be solved if, in the agency’s opinion, all relevant data and information that you have access to in the design phase is made available to potential offerors.
There could also be special problems if the design phase work included environmental impact studies. There is a discussion of this particular problem in paragraph G – Environmental Consultants of the BPPM section already referred to. Once again, the real decision maker in all of this is the agency you will be working for. You will want a clear understanding of their position before submitting proposals so you can decide what role you prefer to play in the event the agency restricts you from dual roles. (Revised: May 2010)
Q. We are doing a RFP for a planning study, which requires a traffic analysis. A portion of the work would normally be conducted by a traffic engineer, although this is not specified in the RFP. The deliverables required under the RFP are just recommendations, not stamped plans or specifications. Must we use Brooks Act procedures in our planning study RFP?
A. You should first apply the test of determining where the preponderance of the work is - is it in those services listed in 49 U.S.C. 5325(b)(1)? If the preponderance of the work is not in those services, then Brooks Act procedures need not be applied, even though there may be some work of that nature. A&E services are discussed in the Best Practices Procurement Manual, Section 6.5 – Architect-Engineer Services. (Revised: May 2010)
Q. Is there a threshold for A&E services? Our agency is procuring an A&E consultant. The internal engineering estimate is $50,000 - $70,000. Do we need to follow a two step qualifications based selection process as required by 49 U.S.C. § 5325(b)? Do we need to advertise?
A. You must use qualifications based procedures for all A&E procurements regardless of dollar value. You do not need to formally advertise this since it falls under the Federal threshold of "small purchases" (i.e., $100,000), but you should check your local or state requirements here as well. For small purchases, you need to have "adequate competition," and your approach of evaluating three A&E firms should give you adequate competition. You should tell the firms the criteria you intend to use to evaluate their qualifications. A&E procurements are discussed in the Best Practices Procurement Manual, Section 6.5 – Architect-Engineer Services. (Revised: May 2010)
Q. The Executive Director would like to hire an Engineering firm to help us write scopes for upcoming projects such as fuel island building, surveying, planning, project management and so on. Our agency is not big enough to hire a full-time Engineer so what this person is looking for is a company who they could reach who would then help them with the development of the scope or the questions they have. This company could also potentially bid on some of the actual building or construction of the projects. We are unsure of what is the best procurement route to take on this one.
A. The type of work described would fall under the 49 U.S.C. § 5325(b) requirement to use a qualifications based selection process for A&E services. A&E procurements are covered in the Best Practices Procurement Manual (BPPM), Section 6.5 – Architect-Engineer Services.
You also note that allowing the A&E firm selected to later compete for the work they are helping define would represent an impermissible organizational conflict of interest that is prohibited by the FTA Circular 4220.1F, Chapter VI, paragraph 2. The subject of conflicts of interest is also covered in the BPPM, Section 188.8.131.52.2 - Written Standards of Conduct and Conflicts of Interest: Personal and Organizational. You will also find guidance in the BPPM Section 3.3 - Using Consultants to Prepare Specifications. It is very important that you do not allow a conflict of interest to exist. To avoid this you must tell potential A&E firms up-front, before they submit their qualification statements for the initial project definition work, that they will be precluded from competing for the follow-on work. You should also include a clause in your initial consulting contract that provides for a “limitation of future contracting” that specifies the future work (specific projects) they will not be allowed to perform either as prime or subcontractor. This will allow prospective firms to choose whether they want to compete for the initial definition work or the later work, and thus avoid protests from them later or from their peers who will complain of an unfair competitive advantage. (Revised: May 2010)
Q. Our agency issued an RFQ for Design and Construction Management Services for our Bus Stop Program. Three (3) proposals were evaluated and ranked. The agency does not want to go with number one ranked firm because of some past performance issues. The agency desires to skip to number two. The City attorney asked me to research what FTA regulations apply when an agency goes to number two.
A. In discussing your case, we understand that your proposal evaluation committee issued its report on three A&E firms' proposals about three months ago. One of the firms evaluated, and ranked number one, had previously performed a CM contract for your agency. Subsequent to the issuance of the committee's report, certain unfavorable facts came to light concerning that firm's performance that were unknown to the committee when the report was issued.
We believe your agency management (the selection official) should instruct the committee to review not only this firm's performance under that contract but also to interview the clients of all the firms to ascertain how those firms performed under the contracts listed in their proposals as relevant experience. The findings of the committee should be reduced to writing and submitted to the selection official (or Board) that has authority to make the selection decision. If the selection official believes the poor performance under the CM contract in question is so serious that it should be a determining factor in the selection, the facts and the decision rationale should be reduced to writing. There is no doubt that the CM contract in question is directly relevant to the CM contract you will award, and that the Contractor's performance should be evaluated. The selection official is entitled to an accurate picture of each firm's past performance, which is always an important factor in the selection of an A&E consultant. We would also suggest giving the A&E firm an opportunity to comment on this incident of apparently poor performance. (Reviewed: May 2010)
Q. According to the Federal Register issues dated December 11, 2003 and January 7, 2004, the Standard Forms 254 and 255 will be replaced by the Standard Form 330 effective June 8, 2004. Are state transportation agencies who fund capital projects using federal funds required to use Standard Form 330 in the qualifications phase of A/E procurements?
A. You are not required to use the federal forms. However, you are required by 49 U.S.C. § 5325(b) to use a qualifications-based selection process for A&E procurements. (Reviewed: May 2010)
Q. We do not have sufficient expertise to properly prepare a SOW. We do not have the ability to adequately address all the aspects of the technology conditions that presently exist or to guide in the development of proper selection criteria for the SOW in a procurement solicitation for a consultant to assist us in the development of a technology RFP. Is it possible to procure a technology consultant using qualifications-based procedures if the job content of the procurement would primarily be the "re-engineering and/or design of a total technology package"?
A. The definition of architect and engineering services in 49 U.S.C. § 5325(b) requiring Brooks Act-type qualifications-based procedures restricts these services to those pertaining to real property. FTA Circular 4220.1F, Ch. IV, Sec. 2.g.(2)(a) restricts the use of Brooks Act procedures to the kinds of services defined in the statute above. Thus, a grantee would not be allowed to use Brooks Act procedures for the acquisition of consulting services to develop specifications for software. (Revised: May 2010)
Q. Can we compete the award of a construction management contract between a city engineering department and an engineering firm who was previously awarded a task order contract that included construction management services?
A. You may elect to negotiate with the city for the work if your jurisdiction allows such a course of action. Section 5325(b) of 49 U.S.C. requires FTA grantees to use Brooks Act qualifications-based procedures for A&E services and construction management is defined as an A&E service. However, the statute does not authorize a price competition between the city and the A&E. (Revised: May 2010)
Q. Can construction management services be bid or do they fall under the Brooks Act?
A. Construction management services are considered A&E services which under 49 U.S.C. § 5325(b) must be acquired using qualifications based procedures.(Revised May 2010)
Q. Where can I get information about general service or task order contracts - a contract awarded to an A&E firm for a wide variety of services on an "as needed" basis?
A. It is our understanding that your agency competed this five year A&E contract using a qualifications-based process for the selection. You advertised this as a task order contract with a scope of work that includes all tasks issued under the contract to date. We see no requirement to compete individual task orders. You satisfied the competition requirement in your initial solicitation and selection process. The tasks now being issued are for A&E services, so no price competition is allowed, and the technical qualifications issue has already been addressed in the initial contract award. (Reviewed: May 2010)
Q. Is it appropriate for the Federal government to consider an offeror's proposed approach to delivering A&E services in addition to their qualifications and performance data for purposes of determining which firms to short-list and interview?
The Brooks Act require the agency head, for each proposed project, to evaluate current statements of qualifications and performance data on file with the agency, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with no less than three firms regarding anticipated concepts and the relative utility of alternative methods of approach for furnishing the required services and then shall select therefrom, in order of preference, based upon criteria established and published by him, no less than three of the firms deemed to be the most highly qualified to provide the services required.
This could be interpreted that the initial shortlist is to be based on qualifications and past performance only and that discussions of approach for the proposed project should not take place until the interview phase after selecting the most highly-qualified firms. This distinction may be extremely relevant for complex projects where the SF 254/255 is page limited.
A. The Federal government procurement regulations authorize Federal agencies to use conceptual design competition in order to select A-E firms under certain circumstances (FAR 36.602-1 (b)). Of course, grantees are not required to follow the FAR but these regulations do answer your basic question as to whether the Brooks Act limits the Federal government to the qualifications and performance data in the initial short-listing decision. This FAR subpart does not limit the conceptual design competition to the short-listed firms. Of course, agencies need to be sensitive to the expense they are causing A-E firms to incur when they require detailed technical proposals and conceptual designs. There is also the agency's own administrative cost in having to evaluate detailed proposals from a large number of sources before the short list is developed. And we would also note that very often agencies have decided to pay firms a pre-determined proposal stipend when they require expensive, detailed technical proposals with conceptual designs (e.g., on large design-build projects). It is for these latter, practical reasons that agencies have traditionally not asked all prospective firms to develop and submit detailed proposals but have restricted this practice to those firms having a reasonable chance of getting the contract based on past performance and qualifications (i.e., those firms in the competitive range). (Reviewed: May 2010)
Q. Are the costs of an A&E contract limited to a percentage of the cost of construction? If a construction estimate is $5,000,000 is the design cost limited to a percentage of the construction costs?
A. Grantees are not constrained with respect to the cost of designing a facility, or system by a percentage limitation of the estimated construction cost. The price and cost/fee limitation on Federal A&E contracts as provided at FAR 15.404(c)(4)(B) does not apply to grantee third-party contracts. The Federal contract price limitation for A&E designs, plans, drawings and specifications is 6% of the estimated construction cost.(Reviewed: May 2010)
Q. I received only one response to an advertised RFQ. I did receive a call from a second firm indicating that they were not able to submit a response as they were only able to complete the work related to 50% of the scope indicated. Following the selection committee's review of the firm that did respond, the firm was found to be qualified to perform the work. As only one firm responded, I am unable to rank the firm against other firms. Can I enter into negotiations with this firm if the firm is found to be qualified without comparing ranking with other firms? I understand that if price negotiations fail I will have to re-advertise.
A. You should document your file regarding the steps taken to compete this contract and process this as a non-competitive contract award through the proper approving official. For the record, we would suggest contacting the other firms you solicited and try to determine why they did not submit proposals. You might want to include this information in your memorandum for a non-competitive award. (Reviewed: May 2010)
Q. Is it appropriate to call a solicitation for Engineering related services a "Request for Qualifications" if the solicitation contains all the required information for submittal, evaluation, selection, award and agreement terms? We were written up in procurement system review for calling our engineering request for proposals, RFQ's.
A. The solicitation documents you described would be considered a "Request for Proposals" since technical proposals were in fact requested from the A&E firms solicited, and not merely qualifications statements such as the SF 254 and 255. However, we cannot think of any harm done by using the "Request for Qualifications" terminology, especially since your solicitation package made clear what was required from all offerors in terms of a technical proposal and not merely statements of past experience, etc. (Reviewed May 2010)
Q. We are currently negotiating a contract for A&E services. The contractor contends that we cannot impose a ceiling on their overhead rate. They base this conclusion on an FHWA final rule in the Federal Register, June 12, 2002, 40149. Does this FHWA rule apply to FTA section 5309 funds as well?
A. FHWA rules are not binding on FTA. However, FTA has also adopted a position that grantees may not impose ceilings on indirect costs on contracts for engineering and design related services (i.e., services defined by the Brooks Act). FTA's position is based upon and consistent with that established in the FHWA's final rule "Administration of Engineering and Design Related Services Contracts." FTA based its position on the fact that the FTA legislation in 49 U.S.C. § 5325(b)(2)(C) is substantially similar to that of FHWA in 23 U.S.C. § 112(b)(2)(D) whose requirements were implemented by the FHWA final rule. (Reviewed: May 2010)
Q. Why can’t a Request for Quote (RFQ) be used to solicit and award an architect and engineering (A/E) contract?
A. Grantees may not request competitive price quotations from A/E firms as part of their selection process leading to award of an A/E contract. Section 5325(b) of Title 49 U.S.C. requires a contract for A&E services to be awarded pursuant to the procedures set forth in chapter 11 of Title 41 U.S.C. (i.e. the Brooks Act). That statute requires a qualifications-based procurement method for the selection of the highest-ranking A/E firm with whom price negotiations are then conducted. Price must be excluded as an evaluation factor, and negotiations are conducted with the most qualified firm only. This process is presented in more detail in the Best Practices Procurement Manual (BPPM), Section 6.5 – Architect-Engineer Services. Grantees are required to abide by the procedures of the Brooks Act if the contract is funded by FTA, unless the grantee’s State had before August 10, 2005 adopted formal procurement procedures for A/E services, in which case the State procedures will govern. (Revised: May 2010)
Q. Is surveying of property covered by 49 U.S.C. § 5325(b)?
A. That statute specifically includes surveying of property as a professional service that is of an architectural or engineering nature and must be awarded pursuant to the procedures set forth in chapter 11 of Title 41 U.S.C. (i.e. the Brooks Act). (Revised: May 2010)
Q. Can A&E services be procured by conducting a "competition" for the best design? A&E services are typically procured from those firms that are most qualified. For the design and engineering of an intermodal center, can they be procured on the basis of a design competition?
A. A&E services may be procured on the basis of a design competition; that is, the firm submitting the best technical/design proposal would be selected for award and asked to submit a price proposal for negotiation. Price proposals would not be requested or considered as part of the evaluation process to select the winning proposal. The winner would be based solely on technical qualifications such as experience and the suitability of proposed design for your project.
For information purposes, the federal government procedures for A&E procurements allow for design competition if certain criteria exist. You may find this discussion at FAR 36.602-1(b), "Selection Criteria." You are not bound by the FAR but you may find this discussion helpful. (Reviewed: May 2010)
Q. Does FTA have any guidance on task or work order type contracts for A&E services? Is it an abuse of this type of contracting for a transit agency to combine three task orders contracts to design a maintenance facility?
A. The BPPM does not address Task Order contracts per se but there is guidance in the BPPM Section 9.2.1 - Contract Scope and Cardinal Changes that may be helpful. Since the maintenance facility represents a major project ($30M), the question needs to be asked if this kind of major project design was within the scope of the original competition; i.e., was this the kind of assignment that the original competitors would have expected to be given under this task order contract? Did the original solicitation advise offerors of the potential for this type of assignment? Had the A&E community known that this contract might have included a task of this magnitude, would there have been more A&E firms interested in competing for the contract initially? If the answer to this question is that this assignment was not within the scope of the original competition, then it is a "new procurement" and should be processed competitively or justified as a sole-source award through the agency's management officials who have the authority to approve of sole-source contract awards. (Answer reviewed May 2010)
Q. If there are several equally qualified architect-engineer (A&E) firms for a job, can we declare them equal and solicit price proposals from all of them in order to negotiate a contract? In selecting engineering firms, is it permissible to qualify more than one firm for a given job. For example, after a review of several firms' qualifications can we say that two or more firms are deemed equally qualified for the job, or do we have to rank them and select the number one ranked company?
A. Section 5325(b) of Title 49 U.S.C. requires a contract for A&E services to be awarded pursuant to the procedures set forth in chapter 11 of Title 41 U.S.C. (i.e. the Brooks Act). The Brooks Act prohibits the use of price as a selection factor when choosing an A&E firm to do the kinds of work covered by the Brooks Act. You will have to make a selection decision based on technical qualifications only and then conduct price negotiations with that firm that you rank as the highest qualified firm.
If you cannot reach an agreement on price with that firm, then you must formally discontinue negotiations with that firm and request a price proposal from the next highest ranked firm, with whom you would then conduct price negotiations. Procurement of Architect-Engineer services is also covered in the Best Practices Procurement Manual (BPPM), Section 6.5 – Architect-Engineer Services. (Reviewed: May 2010)
Q. Our state law exempts the procurement of personal services from competitive procedures and lists surveying as a personal service. Section 5325(b) lists surveying as a service that should be procured through the use of a qualifications-based procedure as set forth in chapter 11 of Title 41 U.S.C. (i.e. the Brooks Act) or an equivalent qualifications-based requirement of a State adopted before August 10, 2005. Can we follow our state law for this type of procurement?
A. Grantees must follow the Brooks Act procedures for all A&E procurements unless their State has an equivalent qualifications-based statute for these services. Since your state does not have a state equivalent, then you must use Federal procedures for all A&E services, including surveying. (Revised: May 2010)
Q. Is a performance evaluation required for A&E contracts (i.e., SF1421)? FAR 36.604 requires a performance evaluation for A&E contracts in excess of $25,000. Although I think it might be a good idea to follow, is it required? I can't find any FTA requirements on this subject.
A. Grantees are not required to follow the Federal Acquisition Regulation in their procurement activities. FTA Circular 4220.1F does not require a performance evaluation for A&E awards, only that the Brooks Act procedures be followed unless the grantee has State procedures for A&E contracts in which case the State procedures will govern. The Brooks Act requires a qualifications-based award and prohibits the evaluation of competitive price proposals as a criterion for award. As you suggest, an evaluation of past performance could be an important part of your qualifications-based evaluation, but there is no specific requirement for such a performance evaluation. (Revised: May 2010)
Q. Is it allowable for Grantees/Sub-Grantees to use competitive price proposals (RFP) for selection of consultants to perform Alternatives Analysis and Development of an Environmental Impact Statement?
We require the services of an outside consultant to perform Alternatives Analysis, Identification of the Locally Preferred Alternative, and development of a Draft and Final Environmental Impact Study related to public transit service. These services are often provided by professional planning firms because the preponderance of effort is of a planning nature. While this work requires some degree of engineering analysis, there is not a requirement for plans or specifications to be sealed by a licensed professional engineer.
Does FTA require that these services be performed by a licensed professional engineer, thereby requiring the use of a qualifications-based (Brooks Act) procurement, or can these services be procured by use of a competitive price proposal? It should be noted, it is also anticipated that a professional engineering firm will be procured separately to perform Preliminary Engineering and Final Design concurrent with the later stages of preparation of the Final Environmental Impact Study.
A. FTA does not require these services to be performed by a licensed professional engineer, nor does it believe these services fall within the types of A&E services that must be procured using qualifications-based selection procedures. Several observations can be made, and several criteria can be cited against using the Brooks Act method.
- The list of services in 49 USC § 5325(b) that must be procured using Brooks Act-type procedures do not include the environmental planning services you have described.
- If the primary activity/profession is planning rather than engineering, it is inappropriate to use Brooks Act-type procedures even if an engineering firm is ultimately selected to do the work.
- The Brooks Act itself hinges on services that (under state law) require a license, certification, or registration to provide, and we are not aware of a state law that would place a licensing requirement on these environmental planning services. (Revised: May 2010)
Q. Would traffic data collection be considered Architect/Engineering services and require us to follow the Brooks Act?
A. We do not believe that these services fall under the definition of A&E services as envisioned by the 49 USC § 5325(b). (Revised: May 2010)
Q. The California Supreme Court recently ruled (PDF) that Caltrans could use a Qualifications Based Selection procedure in response to a challenge to that procedure brought about by passage of Prop. 35, however, that ruling did not say that Caltrans had to use a QBS solicitation process after passage of Prop. 35. Some would say that, in light of some language in Prop. 35, local agencies have a choice to ask for price from all the firms in the competitive range - or not. Can we ask for prices from firms in the competitive range and use that to help verify the reasonableness of the highest qualified firm?
A. Grantees receiving FTA assistance must award contracts for program management, architectural engineering, construction management, a feasibility study, and preliminary engineering, design, architectural, engineering, surveying, mapping, or related services in the same way as a contract for architectural and engineering services is negotiated under the Brooks Act, 40 U.S.C. §1102, or an equivalent qualifications-based requirement of a State adopted before August 10, 2005.
Such procedures require that
- (1) An offeror's qualifications be evaluated;
- (2) Price be excluded as an evaluation factor;
- (3) Negotiations be conducted with only the most qualified offeror; and
- (4) Failing agreement on price, negotiations with the next most qualified offeror be conducted until a contract award can be made to the most qualified offeror whose price is fair and reasonable to the grantee.
These qualifications-based competitive proposal procedures can only be used for the procurement of the services listed above. This method of procurement cannot be used to obtain other types of services even though a firm that provides A&E services is also a potential source to perform other types of services.
These requirements apply except to the extent the grantee's State has adopted an equivalent State qualifications-based requirement for contracting for architectural, engineering, and design services.
Recipients of FTA assistance must also comply with the following requirements for A&E contracts: (a) Any A&E contract or subcontract shall be performed and audited in compliance with cost principles contained in part 31 of title 48, Code of Federal Regulations (commonly known as the Federal Acquisition Regulation); (b) An A&E contractor or subcontractor shall accept indirect cost rates established in accordance with the Federal Acquisition Regulation for 1-year applicable accounting periods by a cognizant Federal or State government agency, if such rates are not currently under dispute; (c) After a firm's indirect cost rates are accepted the recipient of the funds shall apply such rates for the purposes of contract estimation, negotiation, administration, reporting, and contract payment, and shall not be limited by administrative or de facto ceilings.(Reviewed: May 2010)
Q. Can we use an A&E contract to secure Environmental Consulting Services? The type of work that may be required is:
- Assist us in regulatory compliance with requirements for UST and AST systems. Provide oversight capabilities for the removal and/or possible installation of these storage tank systems.
- Assist in assuring our compliance for environmental regulations or matters involving the MWRDGC, IDPH, Illinois or U.S. EPA regulations such as Clean Air Act, SPCC, SWPPP, OSFM, LUST, asbestos abatement, universal waste, etc.
- Provide training capabilities (either directly or through subcontractor) for SPCC briefings, OSHA right-to-know topics for garage staff.
- Assist with determining the adequacy of spill training and equipment.
- Assist with environmental health and safety information management practices.
- Provide assistance in waste stream sampling, waste minimization studies, recycling efforts that contribute to reduced waste generation, and potential cost savings.
- Support further development and growth of a corporate environmental management system.
- Support further development of an annual compliance audit plan.
- Provide response support for environmental emergencies at Pace facilities or possible roadside spill locations?
A. The work you describe would not appear to fall within the narrow requirements of 49 U.S.C. § 5325(b) for a "contract or requirement for program management, architectural engineering, construction management, a feasibility study, and preliminary engineering, design, architectural, engineering, surveying, mapping, or related services." Thus the contract would be subject to the 49 U.S.C. § 5325(a) requirement for full and open competition. (Reviewed: May 2010)
Q. Can an agency make a multiple award for A&E services if the selection of the firms was based upon the Brooks Act? The services required are not project specific. Task orders would be negotiated for the work required. If multiple awards are permissible, can the agency spread the workload among the firms or must the highest rank firm be given the first opportunity?
A. There is no problem per se in awarding multiple A&E contracts, although we question why you would want to do that unless you are seeking consultants for specific disciplines that you can identify now even though the projects involving those disciplines have not yet been defined. For example, you may know you will need to prepare plans and drawings for bus shelter installation sites, or accomplish environmental studies, etc. If you have generic requirements such as these that you can identify, and you can evaluate various A&E firm's capabilities and experience for those types of projects, then you can choose the best firm now for each discipline, so that when that type of project comes along you can assign the work to the one firm chosen as being the best for that type of work. On the other hand, if you have only one discipline, then you should choose the best A&E firm and assign all future tasks to that firm that was most highly rated. If you simply want multiple A&Es under contract so that you do not have to compete future projects when they are defined, and intend to assign the work without further competition to one of the firms under contract, then we do not think that meets the 49 U.S.C. § 5325(b) requirements for a qualifications based selection. If you do not have the disciplines identified or the projects, then you have no way of evaluating or ranking A&E firms now for work to be defined later. (Reviewed: May 2010)
Q. Is it acceptable to ask proposers for an A&E contract to submit price in a separate sealed envelope with their proposals? Price is not a part of the evaluation criteria and the sealed envelopes are not opened until all evaluations are completed.
A. We do not believe it is a good practice to solicit price proposals from all A&E offerors even though the proposals are unopened until evaluations are complete. In our opinion this creates the appearance among the offerors that prices will be considered in the selection process. It also suggests that prices may be compared for the purpose of negotiations even though they are not used to select the winner. The obvious question is why would an agency do this if they did not intend to look at the prices and somehow use them? The proper approach is to do an independent cost estimate before the cost proposal is received from the highest ranked firm and then evaluate that cost proposal against the independent estimate. If a fair price cannot be negotiated with the highest ranked firm, then negotiations are to be formally terminated and a price proposal requested from the next highest ranked firm. (Reviewed: May 2010)
Q. Am I required to do an RFP for A&E services on a project that is to cost approximately $250,000 and estimated A&E services are less than $20,000? No federal funds are being used; State and local funds only. Authority follows state procurement standards and PennDOT follows federal rules. Authority already employed an architect to draw up concept design with estimated costs. This cost was under $2,500. Can we continue with same architect or do an RFP? We provide service in a very rural part of PA.
A. We believe the agency should competitively award the new A&E services contract for this project unless: (1) the original award was done competitively, (2) all firms were advised prior to the initial contract that the selected firm would be required to continue the project from conceptual design through this phase of the project, (3) firms were evaluated for their qualifications to do both the conceptual design and this later phase, and (4) the selection was based on that evaluation. (Posted: March 2010)
Q. The Town of Vail received 5309 monies to build a Transit Center and related improvements. We have completed Design and are in construction of Phase I. All design and construction contracts were publically bid prior to contract award. In order to fast-track the final design of Phase 2, we would like to negotiate additional services with the design consultant currently under contract. Do we have to publically bid this phase 2 final design or can we negotiate with the existing design team? And if no, what if this final design was paid for by monies other than 5309 or the required match, and the remaining 5309 monies were put toward the construction of phase 2 which will be publically bid? We publically bid preliminary design and design development for both Phase 1&2 in Feb 2009. In the Spring of 2010 we publically bid the Final Design of Phase 1 and wound up awarding the contract to the same design team that was awarded the Phase 1&2 Design Development work. We would like to expedite the Final Design of Phase 2 and skip the public bid, which will save us 6 weeks of process. The design team has proven to be competitive twice and going with any other design team for final design of phase 2 would be impractical since the current design team is so involved in the current design. We not only would lose time in the bid process but also in bringing any new design team on board.
A. Grantees have the authority to make determinations that a particular contract award cannot feasibly be competed. You do have the authority to make this determination by a written determination of the facts justifying a sole source award to the present A&E firm, and have that justification approved by agency management officials. If you choose not to use federal funds for this Phase 2 design work, then the procurement will not be subject to FTA regulations per Circular 4220.1F. For future reference, it is not uncommon to advertise an entire project in the first RFP; i.e., to advise all prospective firms that the agency intends to contract with the selected firm for all phases of the project but negotiate the phases sequentially as the project develops. In this case the A&E firms would be evaluated for their experience and capabilities to perform all phases of the project, and thus the winning firm is selected based on qualifications for the entire project, not just the initial phase. This process would mean that all phases of the project are competitive and no sole source justifications would be required for the latter phases. The process described would not work with non A&E work where price proposals must be obtained as part of the competitive process. In the A&E scenario only technical qualifications are used for choosing the contractor and this can be done for the entire project up front even though the detailed scope of work is to be developed and awarded in phases. (Posted: October, 2010)
Q. The BPPM says the following, in part, to determine if Brooks Act procedures must be followed:
The "A&E services" that must be procured according to the Brooks Act procedures are defined in two statutes: 40 U.S.C. Section 1102 and 49 U.S.C. Section 5325(b). Both of these statutes must be taken into consideration when deciding what constitutes "A&E services." The easiest way to conceptualize the requirements of these two statutes is to first apply the definition in 49 U.S.C. Section 5325(b) and determine if the services are "program management, construction management, feasibility studies, preliminary engineering, design, architectural, engineering, surveying, mapping, and related services."
The question is - what is the definition of construction management for this purpose. Would a contract that provides various CM type disciplines on an, "as needed" basis, such as inspectors, resident engineers schedulers etc. to work under the supervision of an agency manager (e.g. body shop type services) fall under this provision, or is there some other distinguishing feature?
A. If you are buying professional engineering services related to a construction activity, it does not matter whether the contractor has an independent construction management contractual responsibility or whether he is furnishing engineers on call to work under your supervision. These engineering services would still have to be procured using Brooks Act, qualification only, selection procedures, assuming of course you are using FTA funds. (Posted: October, 2010)
Q. We have a consultant contract that was awarded under California procurement procedures. The project will be applying for FTA funding. What is the procedure for federalizing our current consultant agreement?
A. The grantee should refer this issue to the FTA regional office. It is not clear that this consulting contract, which was awarded prior to the approval of the grant, would qualify for federal funding, and that issue needs to be resolved with FTA. Also, if the consulting contract was for A&E services and it was not awarded in accordance with the Brooks Act, which requires qualifications based award, then it would not qualify for FTA funding. (Posted: February 18, 2011)
Q. Is there a contract amount limit for on-call contracts? Does an Independent Cost Estimate required at this level or at a Task Order level?
A. The FTA Procurement Circular 4220.1F does not impose contract dollar or term limits for on-call A&E services. Grantees would be expected to use good business judgment in competing on-call contracts. Typically these contracts would not be used to procure design and engineering work for major projects under task assignments. Large projects should be competed separately, with the most highly qualified A&E firm chosen for that specific project. On call contracts would be suited for smaller jobs that would be too expensive (administratively) to compete individually. As far as independent cost estimates, they would be required for any task assignment that was expected to exceed the micro-purchase threshold of $3,000. (Posted June, 2011)
Q. Footnote No. 39 to the FTA Best Practices Manual states that "FTA's Office of Chief Counsel has interpreted the language of 49 USC 5325(b) in a manner that is consistent with the provisions adopted by FHWA in its Notice of Proposed Rulemaking and its final rule." The footnote continues on to state that "there are several important aspects..." to be noted in the administration of A&E contracts. The footnote, however, ends in a colon without noting the additional important aspects to be considered. I would like to see the rest of footnote No. 39 but I don't know where to find it. Can you help me locate the rest of this information or tell me where to find it?
A. We do not have any additional language for the footnote in question. However, we believe that the material that was intended to follow the colon in footnote no. 39 are the paragraphs A) through J) in the text of the BPPM Section 6.5 – Architect-Engineer Services, paragraph entitled, "Negotiating Indirect Cost Rates." In other words, insert the footnote No 39 language into the BPPM text at this point and then read paragraphs A) through J) as if they follow the footnote and thus define the "several important aspects" of administering A&E contract indirect cost rates referred to in the footnote. (Posted: January, 2012)
Q. Should we utilize the Brooks Method if based on an ART/BRT scope it appears that the preponderance of the work and costs will be for non-A/E work that does not lead directly to the repair, alteration, construction of real property?
Background Information: We received a scope of work from a planning department that requested that we procure this broad project through the Brooks Act method. Based on our research, 1) the preponderance of the work should be A/E services directly leading to construction, repair, or alteration of real property and 2) the nature of the firm does not dictate but rather the nature of the work dictates whether we use the Brooks method, which is defined in the BPPM as an "extraordinary" procurement method.
The scope calls for:
- 1) Preliminary Engineering, incl. 30% drawings. But the end product maybe PE for:
- Updates of current shelters
- Installation of new prefabricated shelters/concrete pads
- Bus Stations - which appear to be more elaborate shelters with more passenger amenities and electronic, real time signage
- 2) Marketing, Branding, Public Relations and community outreach to get buy in from communities
- 3) Writing Specs for Technology Integration
- 4) Assisting with procurement of Technology Integration Services
- 5) Overseeing the above contract
- 6) Writing Vehicle Specifications
- 7) Assisting with Procurement of Vehicles
- 8) Overseeing Vehicle Contract
- 9) Planning new bus routes/modifying existing routes
- 10) Assisting with setting up new ART Office within Pace; recommending staff additions/restructuring
- 11) Developing a Capital Financial Plan and modifying our Fleet Plan to meet the needs of the new ART system
The ICE submitted does not break down level of effort by labor category and does not have a list of anyone other than engineers.
A. We would agree that the decision to use Brooks Act procedures vs. Best Value selection procedures (with price as a factor) should be based on the preponderance of the work. Much of the work in your SOW relating to vehicles, for example, would not fall under the Brooks Act.
The scope of services raises a serious question as to why you would include such disparate work assignments in one contract. The engineering and design work for simple shelters, the design of large stations with new technology systems, the development of specifications for vehicles, and the planning of new or modified bus routes appear to have nothing in common. Combining these unrelated disciplines in one contract would appear to require a number of subcontractors with different expertise, and this will complicate the management of the contract and perhaps contribute to additional costs because of the prime contractor's mark ups and management of the various subcontractors. It will also remove all of the subcontractors from the agency's direct management control.
If you continue to believe that this all - inclusive contract is the best approach, you should prepare a detailed independent cost estimate for each item in the scope of work, with labor categories, hours and rates for each task. You should then require cost proposals to conform to your ICE breakdown so you can evaluate the proposed costs of each task. We would also recommend that you do some "market research" to determine what you can expect to pay in additional mark-ups by a prime contractor on the cost of the various subcontracts required. (Posted: January, 2012)
Q. A major user has a procurement document to Purchasing that allows the same vendor to conduct preliminary engineering, final design, and "construction oversight and administration." Is this allowable and what is the definition of construction management?
Background: We were told in the past that the design firm cannot be the construction management firm. The user claims the role in their procurement is not that of construction manager but construction administration. They would ensure the construction contractor would follow plans and specs, track their time, inspect their work, handle claims, etc., but under Agency staff supervision (limited resources and limited expertise of Agency staff). The A/E firm in this role would also provide cost estimates of change orders, attend all meetings with the construction contractors, etc.
A. The construction phase role of the A&E firm that you describe is very typical and also very beneficial.
The FTA Best Practices Procurement Manual (BPPM), Section 6.5 – Architect-Engineer Services, discusses the usual role of the A&E firm that designs a project as far as services provided during the construction phase of that project. The typical role is one of support to the owner (grantee), and does not involve control over the construction contractor. The role of a Construction Manager (CM), however, does involve control over the construction project. The CM can act as the owner's "agent" in awarding construction contracts on behalf of the owner (known as CM Agency), or he can act as the prime contractor with actual contractual responsibility for completing the project for the price negotiated with the owner (known as CM – At - Risk). The BPPMSection 6.1.2 – Construction Management discusses the two basic approaches for CM services: CM – At - Risk and CM Agency.
Following is an excerpt from the Section 6.5 – Architect-Engineer Services, describing the typical role of an A&E firm as far as supporting the owner during the construction phase. This is not Construction Management since the A&E is advising the owner and not acting as the owner's agent. We would also add that the A&E typically provides construction inspection services to the owner, advising the owner of whether the construction contractor's work meets the contract specifications, etc.
"A-E Role in Construction Change Orders, Claims and Litigation - The A-E firm can provide assistance to the agency in the evaluation of changes to the construction contract, whether the changes originate with the agency or with the construction contractor. When changes are suggested by the construction contractor, they must be evaluated, before they are adopted, as to their total system impact on the project, and the A-E is in the best position to do this. The A-E can also prepare a cost estimate of the changed work that the grantee can use to evaluate the construction contractor's price proposal for the change, and the A-E can assist the grantee in negotiations as a technical resource if the grantee so desires. The A-E also has a role to play in the evaluation of claims submitted by the construction contractor, although in this case the A-E's participation is somewhat defensive. For example, the A-E may be called in to defend its designs or specifications, or the time the A-E took to review and approve the construction contractor's documentation, and in this case the A-E's efforts may not be reimbursable under the terms of the A-E's contract with the agency. The same would hold true for issues that go to litigation--the A-E should be required to defend its designs and specifications without additional charge to the agency. Grantees would do well to make this a subject for an "advance understanding" in their A-E contracts, so that when claims and litigation occur, the parties will understand their respective obligations. If the claims or litigation are caused by the agency's actions, however, and are not due to the A-E's work products or actions, then the A-E can expect to be reimbursed by the agency for its efforts in defending the claim and assisting the agency in the litigation."
(Posted: June, 2012)
Q. On A&E solicitations/procurements are subconsultants required to submit Standard Form (SF) 330? Is it a required form for prime consultants?
A. FTA grantees are not required to use the federal Standard Form SF 330 to solicit qualifications from A&E firms, whether for primes or subconsultants. Use of these forms by grantees is discretionary for both primes and subconsultants. (Posted: June, 2012)
Q. Would it be appropriate to procure the enumerated PI services under the Brooks Act?
According to the Federal Transit Administration (FTA) website:
"The Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) have jointly issued an Interim Policy on Public Involvement. The goal of this policy statement is to aggressively support proactive public involvement at all stages of planning and project development. State departments of transportation, metropolitan planning organizations, and transportation providers are required to develop, with the public, effective involvement processes which are tailored to local conditions. The performance standards for these proactive public involvement processes include early and continuous involvement; reasonable public availability of technical and other information; collaborative input on alternatives, evaluation criteria and mitigation needs; open public meetings where matters related to Federal-aid highway and transit programs are being considered; and open access to the decision-making process prior to closure."
METRO will be planning, designing and constructing several light rail projects in different parts of the Phoenix Metropolitan Area where each will receive partial FTA funding. Public involvement (PI) activities will occur on each of the corridors.
METRO is preparing to solicit proposals from firms and individuals interested in providing the PI services. In its advertisement (whether by way of a RFP or an RFQ), METRO will announce that its intent is to make multiple-awards. After contract award, METRO will assign work based on the task order method.
In the proposed solicitation, METRO's PI service provider will work closely with METRO's Planning and Project Development Department as individual projects progress through conceptual and preliminary design (engineering and architectural services), construction and the start of passenger service operations. The service provider's duties will include, but not be limited to:
- Establish working relationships with residents, business interests, and other stakeholders within assigned area of extension;
- Serve as primary liaison between community interests and technical staff to establish and ensure open lines of communication;
- Assist with research, production, and dissemination of LRT project materials;
- Assist with the coordination and interaction with transit officials, consultants, and the general public;
- Coordinate interface between rail and bus related activities and issues;
- Route inquiries about the assigned LRT project from the public to the Manager of Public Involvement, Public Information Officer, or other appropriate staff;
- Arrange and schedule meetings, public open houses and workshops regarding the LRT project, based on direction from the Manager of Public Involvement.
According to definitions associated with "architectural and engineering services" within the Brooks Act, 40 USC Section 1101, et seq. there is mention of "incidental services" related to other professional services of an architectural or engineering nature. "Consultation" is included as an example of those incidental services.
- Would it be appropriate to procure the enumerated PI services under the Brooks Act?
- If the Brooks Act procedures are appropriate and METRO solicits PI proposals using a RFQ, is it permissible for METRO to make multiple awards based on geographic location under a single scope of services?
- If the Brooks Act procedures are not appropriate and METRO solicits PI proposals using an RFP, is it permissible for METRO to make multiple awards based on geographic location under a single scope of services?
- If multiple awards are permissible, what other considerations should METRO use in selecting one consultant over another for each project as they arise?
A. The activities described in your statement of work do not appear to be of an engineering or architectural nature. If the services described do not require the services of a professional engineer they should not be procured under Brooks Act procedures.
Your agency may make multiple contract awards for these services. Since the RFP process will not be the Brooks Act, selection of the consultants based on their geographic locations is not permissible, although a firm's demonstrated knowledge and understanding of local conditions may be a factor in evaluating the firms' capabilities. If multiple contracts are awarded, it would seem that each contract should be awarded for a specific project, and as tasks become defined for that project they would be issued to the firm that won that project. We do not think that several contracts could be awarded for generic PI services with work to be assigned on an arbitrary basis as tasks and projects are defined. (Posted: June, 2012)
Q. On federally funded A&E contracts, is it permissible to compensate prime consultants a set percentage amount of compensation (e.g. 3% of Task Order amount) for utilizing small sub-consultant firms?
A. It is permissible to negotiate a fee for the prime A&E contractor for its management of subcontractors. Typically the prime contractor’s direct labor hours will include effort for managing the subcontractors. This labor effort is usually fee bearing at a rate of 7% – 10%. You may also decide to add a fee on the cost of the subcontract itself, as you note in your question. If you do, be sure that the contractor's compensation is structured on the basis of a fixed amount of fee dollars (CPFF) and not on a cost plus percent of cost basis (CPPC), which is illegal on federal contracts. This means that when the contract is negotiated, the fee is negotiated as a fixed amount of dollars to be paid for managing the subcontractor, and the fee remains fixed in dollar terms regardless of the actual cost of the subcontract. The fee payable to the prime contractor will not vary because the actual cost of the subcontract varies. (Posted: June, 2012)\
Q. Is the Florida State statute No. 287.055 compatible with the Federal brooks Act and FTA requirements? There is some disagreement as to whether the Florida statute would allow qualifications - based contract awards for A&E work when the work was not directly related to a construction project.
A. We have read the Florida Statute No. 287.055 and I cannot say with certainty that it applies only to professional A&E services related to, or in support of, construction. The term “professional services” in 287.055 applies to activities that are typically A&E but not limited (in the definition itself) to work related to or in support of specific construction projects. However, paragraph (3) -- PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES —does seem to address and perhaps limit the qualifications based competition procedures to construction projects. This opinion is based on the fact that Paragraph (3) discusses A&E services procured for construction “projects.” It would have been very helpful if the statute had been clearer on this point.
Regardless of how the Florida statute is interpreted, FTA Circular 4220.1F, Chapter IV, pp. IV-24/25 limits qualification - based procurements of professional A&E services to those that are “related to, directly support, or are directly connected to construction”:
“FTA has long administered the requirement for using qualifications-based procurement procedures for selection of contractors that perform A&E services, generally associated with the construction, alteration, or repair of real property. FTA interprets 49 U.S.C. Section 5325(b) to authorize the use of qualifications-based procurement procedures only for those services that directly support or are directly connected or related to construction, alteration, or repair of real property…”
We would say that what the Florida legislature had in mind, in the final analysis, does not matter since Brooks Act procedures must be followed by all grantees, and those procedures limit qualification - based selection to A&E work that is in support of, related to, or directly connected to construction. Applying the Federal definitions and policy to any particular procurement would require specific facts in order to determine if the A&E services are in fact “related to, in support of, or directly connected to” a construction project. (Posted: March, 2013)
Q. Can a Florida agency use a qualifications - based selection process on an A&E procurement when the contract will not lead to a construction project?
A. Regardless of how the Florida statute is interpreted, I believe that FTA Circular 4220.1F, Chapter IV, pp. IV-24/25 limits qualification-based procurements of professional A&E services to those that are “related to, directly support, or are directly connected to construction”.
“FTA has long administered the requirement for using qualifications-based procurement procedures for selection of contractors that perform A&E services, generally associated with the construction, alteration, or repair of real property. FTA interprets 49 U.S.C. Section 5325(b) to authorize the use of qualifications-based procurement procedures only for those services that directly support or are directly connected or related to construction, alteration, or repair of real property...”
(Posted: August, 2013)
Q. My interpretation of the training I have attended for A&E procurement is as follows:
- Get an ICE for the A&E job.
- Advertise the specifications for the project and the need for A&E services.
- Accept proposals in separate sealed envelopes.
- Accept price quotes in separate sealed envelopes.
- Have a team of reviewers read and score the proposals.
- Choose the top three or so and invite them to do presentations. \
- Choose the top proposer and an order for the next best, and so on.
- Open the top proposer's price quote. DO NOT OPEN ANY OTHER QUOTES UNTIL YOU HAVE DECIDED NOT TO AWARD TO THIS VENDOR.
- Negotiate an acceptable fee based on your ICE. \
- If you only get one proposal, document why and conduct a cost price analysis before awarding the contract.
- If you can not come to an agreement, go to the next choice and follow the same procedure never to go back to the top choice.
- Keep going until you have the best choice at the acceptable price.
- Once you have chosen the A&E firm, do not open the rest of the price quotes.
- Collect all of the proposals from the reviewers and return them to the procurement file or to the proposer not chosen, keeping at least one copy for the file, along with any unopened price quotes.
The guidance from Circular 4220.1E, 4220.1F, and the Brooks Act, does not specifically spell this out. Where in the federal regulation, in the training materials, or in best practices can I find this step by step procedure? FTA contracted consultants for triennial reviews have confirmed that this is the best practice, but are unable to steer me toward a specific regulation requiring #8, #12, and #13. I want to make sure that we follow the documented procedure so there won't be any findings in 2014 or in a procurement review.
A. The FTA Best Practices Procurement Manual (BPPM) discusses Section 6.5 – Architect-Engineer Services.
With respect to your items #8, #12, and #13, there is no Federal regulation or policy that suggests or requires that you obtain cost proposals from all A& E firms that are short-listed. You will note that the BPPM does not suggest that cost proposals should be submitted by all short listed firms. That is a controversial practice that will not be found in any Federal regulation concerning the procurement of A&E services, and in our opinion is not recommended, although it is not prohibited. Following is a relevant “Question and Answer” that is posted on the FTA web page for “Frequently Asked Questions," addressing the issue of obtaining cost proposals from all short-listed firms: (Posted: August, 2013)
Q. Is it acceptable to ask proposers for an A&E contract to submit price in a separate sealed envelope with their proposals? Price is not a part of the evaluation criteria and the sealed envelopes are not opened until all evaluations are completed.
A. We do not believe it is a good practice to solicit price proposals from all A&E offerors even though the proposals are unopened until evaluations are complete. In our opinion this creates the appearance among the offerors that prices will be considered in the selection process. It also suggests that prices may be compared for the purpose of negotiations even though they are not used to select the winner. The obvious question is why would an agency do this if they did not intend to look at the prices and somehow use them? The proper approach is to do an independent cost estimate before the cost proposal is received from the highest ranked firm and then evaluate that cost proposal against the independent estimate. If a fair price cannot be negotiated with the highest ranked firm, then negotiations are to be formally terminated and a price proposal requested from the next highest ranked firm. (Posted: August, 2013)
Q. As a recipient of Federal funds, is our agency permitted to "piggyback" a qualifications-based solicitation award for professional engineering services? One of our local jurisdictions, as well as the Commonwealth of Virginia has qualified engineering firms through qualifications-based procurements and has issued annual contracts to several firms. Is our agency permitted to utilize these contracts in selecting a pre-qualified engineering firm? Both agencies included an assignability clause in their solicitations and contract awards, allowing other public bodies to utilize the contracts.
A. FTA policies regarding the use of contracts awarded by other agencies would not permit the use of these contracts (i.e., piggybacking) for your project. Our comments concerning each of the contracts you identified are as follows:
- The State Contracts: It is our understanding that the State has awarded a number of contracts for similar A&E services to “qualified” A&E firms. You could not simply choose one of the State A&E contracts to make an award for your project. The reason is that Federal regulations (Brooks Act) require that contracts for A&E services be made to the most qualified firm. The State did not, however, award these contracts to the most qualified firms in various engineering disciplines; rather, their contracts were awarded to several qualified firms for the same type of A&E services. This being the case, your agency will have to go through a Brooks Act process of determining the most qualified firm for your particular project. You could use the State contracts to develop a list of qualified engineering firms from which to solicit qualifications statements that your agency could then evaluate to determine the most qualified firm for your particular project.
- Local Jurisdiction: FTA requires that all grantee contracts awarded with federal funds reflect the known and anticipated needs of the agency awarding the contract. If there is uncertainty as to whether the awarding agency will need some of the goods or services, the traditional approach would be to establish the items as options, and then include an assignability clause in case the agency did not ultimately require the items, or if funds were not made available for the items. Agencies may not award open-ended contracts for goods or services and include assignability clauses so that other agencies may piggyback the contract. That is what appears to be the case with your local jurisdiction. Their assignability clause would allow any other agency to make use of the contractor’s services during the term of the contract. FTA would not permit a grantee using Federal funds to piggyback this contract.(Posted: November, 2013)
Q. The City of Amarillo would like to put out a RFQ to hire a consultant to design bus stops. What FTA rules and regulations do I need to be aware of to ensure the project is completed correctly?
A. FTA procurement regulations may be found in FTA Circular 4220.1F.
You should review the Index of Subjects covered by the Circular, especially “A&E,” for guidance on acquisition of A&E services. The subject of A&E is covered in the following Chapters: II–2, II–10, IV–24, IV–25, IV–26, IV– 33, VI–4, VI–12, VI–15, VI–21, VII–12, VII–4, VII–5, and VII–7. In addition, the FTA Best Practices Procurement Manual (BPPM) covers A&E contracts in Section 6.5 – Architect-Engineer Services. However, the BPPM is currently undergoing revision to update to the new Circular 4220.1F. But there will be very few if any changes in FTA A&E contracting requirements between 4220.1E and 4220.1F.
You should also review the FTA Helpline Frequently Asked Questions related to A&E contracts for issues that have been raised on this subject on this page. (Posted: December, 2013)
Q. A grantee wants to know FTA’s position on having a vendor selected for Design work and then have the same vendor perform “Post-Design” work & CEI (construction inspection) functions. The Designer would not be the construction vendor. The grantee stated the local DOT had concerns. I do not see this as a problem, either competitive or sole source (as long as they can justify), and the scope of work is detailed as to exactly what the vendor would be doing. Please let me know your thoughts.
A. It is a rather common practice in the construction industry to employ an A&E firm to do both the design and construction management functions for the owner. The CM functions would include assistance with preparing IFBs to solicit construction bids, evaluation of those bids, and then the performance of construction management/inspection services of the construction contractor's work for the owner. We see no inherent conflict with an A&E firm performing the design and all of these CM functions. As to whether a particular A&E design contractor can be awarded a follow on contract for CM services without competition, the grantee would have to process a sole source justification in order to do that. It would seem to us that justifying a sole source award might be difficult. (Posted: November, 2014)
Q. If an A/E Firm assisted a transit agency with early programming and site selection services for a new facility would that firm be barred from submitting on the subsequent RFP issued by the transit agency for AE services for the design of the new transit facility?
A. The issue that you raise concerns the potential for an organizational conflict of interest that would exist if your firm were to have an unfair competitive advantage over other firms in competing for the follow-on A&E services. The solution in this case is to be sure that the agency acquiring the services makes public all relevant information that your firm produced in its initial work on the project. The conflict of interest problem arises when the firm that has done earlier work has access to information that its competitors do not. So as long as all relevant information is made public, there will be no unfair competitive advantage and thus no organizational conflict of interest. We would also like to note that the existence of a competitive advantage arising from your familiarity with the project because of earlier work is not a problem. The problem only exists when the advantage is unfair, and this is caused by one firm having information that is not available to others.(Posted: December, 2014)
Q. Can an agency award multiple contracts for A&E services over the life of a project to the A&E firm that won the initial competition to furnish services for the entire project through project completion? Does the fact the agency chooses to contract in stages using several contracts (instead of one contract) in any way compromise the integrity of the initial competition?
A. We do not see a problem with using multiple contract awards as long as the integrity of the initial competition is not compromised; i.e., the firm rated highest is awarded all the project work through completion, which was the basis of the initial competition. It's not unusual for a grantee to negotiate two or more contracts with an A&E firm over the life of a project since later phase work is not suitably defined in the early stages of the project so as to permit realistic pricing. (Posted: December, 2014)
Q. We have a five-year on-call A&E contract. The contract includes several disciplines and each discipline has multiple firms that have been ranked. Does the contract require periodic advertisement to allow new firms to join the on-call contract or can we award contracts to the highest ranked firm?
A. If your on-call A&E contract was competed for a five-year term you may continue to make awards for projects under that contract to existing firms that were evaluated and ranked as part of the initial competition. A new competition would not be necessary until the expiration of the five-year term as long as the disciplines needed were proposed and evaluated for the existing contract. In the event that new disciplines are needed, a new competition would be necessary. (Posted: December, 2014)
Q.If a multi-award approach is used to create a pool for on-call A&E services, can an agency rank the respondents at initial review of submitted qualifications and then request proposals and pricing (simultaneously) from all qualified contractors under award when a task is issued?
Background Information: An RFQ was solicited for On-Call A&E services. Categories were defined but submissions were not ranked according to category. Three firms were ranked according to general qualifications.
With each new task, contractors are required to submit a proposal, with pricing, that is to be evaluated to determine which contractor is most qualified per task. Assignment of the task is to the most qualified per task.
A. FTA Circular 4220.1F, Chapter VI, 3.f. requires qualifications-based procurement procedures when acquiring A&E services. These procedures preclude the use of pricing factors when evaluating and selecting A&E firms for contract awards.
You will be required to evaluate the various firms' qualifications for each of the task assignments to be made, and select the highest ranked firm for negotiations. A price proposal would be requested from the highest ranked firm and negotiations conducted. In the event you fail to reach an agreement on price with the highest ranked firm, negotiations with that firm would be terminated and a price proposal solicited from the next highest ranked firm. That process would continue until an agreement is reached on price. You should not solicit price proposals from all firms concurrently prior to determining the highest ranked firm, even if you do not intend to evaluate those proposals as factors in the award, since it will lead to questions or suspicions among the competing firms that the proposals were in fact considered for award.
FTA Circular 4220.1F is available online: /regulations-and-guidance/fta-circulars/third-party-contracting-guidance
(Posted: November, 2015)
Q. Are grantees required to update and adjust an A/E consultant's and/or their sub-consultant's audited overhead rates on an annual basis? Or may this be done upon request by the Consultant and sub-consultant when they request an
adjustment (downward or upward)? If it may be adjusted upon request, are we required to conduct an audit at the end of the contract if all the rate adjustments as requested by Consultant have been supported by audit documentation?
A. If your agency has an ongoing cost type contract with an A&E and you expect the contract to continue for several years, we would advise you to obtain, as a matter of policy, audited overhead rate information on an annual basis for the prime and all cost type subcontractors. These audited rates would be the basis to adjust any previous billings of overhead for the period that was audited, and to establish provisional billing rates for the period going forward. We would also say you could accept the audited overhead rate reports from an independent CPA firm, being sure that the CPA has removed unallowable costs as defined in FAR Part 31.
The A&E firm may of course request an adjustment to its "provisional" billing rate at any time it believes the provisional rate is no longer reflecting actual costs being incurred, in which case we would suggest you obtain relevant overhead cost information from the A&E in order to negotiate a new "provisional" rate.
We would say that the overhead rates must be audited for each of the years of performance in order to establish final billing rates and close out the contract. When the time comes to close out the contract, we would not accept the contractor's overhead rate submissions without an independent audit to verify those submissions. (Posted: November, 2015)
Q. The Brooks Act (40 USC 1102) defines the competitive procedures to be used in the selection of A-E firms, and these procedures will apply to grantee procurements of A-E services unless the grantee's State has adopted formal procurement procedures for A-E services, in which case the State procedures will govern. A qualifications-based selection process must be followed for all A-E procurements regardless of dollar value.
I interpret this to say you must use QBP for A&E selection or "if" the grantee's State has adopted "mini-brooks act procedures," the grantee is to follow those procedures. The state of NC has their own procedures for selection of A&E vendor's, but with an exemption: § 143-64.32. Written exemption of particular contracts. Units of local government or the North Carolina Department of Transportation may in writing exempt particular projects from the provisions of this Article in the case of proposed projects where an estimated professional fee is in an amount less than fifty thousand dollars ($50,000). My understanding of this 'exemption,' is the grantee does not have to use QBP if under $50k. However, the last sentence in the excerpt from the BPPM above, "A qualifications-based selection process must be followed for all A-E procurements regardless of dollar value," seems to contradict the exemption
A. FTA rules require Brooks Act for A&E procurements, and local rules cannot exempt any A&E procurements from Brooks. Thus the NC exemption for A&E awards of less than $50,000 cannot be applied to FTA funded procurements. (Posted: November, 2015)