A&E Contracts

   

Q. We’re having some debate here about whether we can use FTA money for an on-call A/E contract. We 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, and then give that firm the work you competed for and promised to give as it becomes available, we do not see a problem.

Q. On an A/E on-call contract for cost estimating (as an example), can we use them for both FTA funded and non-FTA funded projects as long as we had the FTA stuff in the solicitation going in? A. As long as the Federal requirements are 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.

Q. Do I need to follow the Brooks Act when procuring material testing services, such as on-site testing of soil back-fill materials? A. The FTA Best Practices Procurement Manual (BPPM) defines the requirements for architect-engineer services in section 6.5. You will note that there are two statutes that define when Brooks Act procedures must be used: 49 USC Section 5325(d) 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.

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? If there are several surveying projects that may materialize, but none are certain, is it possible to advertise for "Surveying Services" and make multiple awards for on-call services? When a project or Task for surveying was identified the intent would then be to 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 purpose is to identify qualified firms for surveying and avoid having to advertise and rank each firm for each task or project. A. It is our view that you may make multiple awards to cover your needs for various disciplines, as you described them; e.g., geothermal, railroad, surveying, etc. Your solicitation needs to describe how the work will actually be assigned, and not leave the process undefined and up to judgment later. 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 jobs are defined. 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 make an exception to this if A clearly lacked the resources to do that job and the record was documented by your agency with the facts and rationale for the decision. 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.

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, discusses the negotiation of indirect rates with A&E firms and what FTA requires. A portion of this section is attached. As we read this, 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 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, we would think you can negotiate a provisional rate and stipulate it can be changed only by mutual agreement of the parties. The BPPM is available at the FTA Helpline web site.

Q. Brooks Act states that no less than 3 firms must be selected and ranked. What happens if you only receive two proposals (from two teams of consultants)? 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 FTA Procurement Circular 4220.1E paragraph 9.e sets forth the requirement for A&E contract awards. As we read this section, grantees are required to use performance-based qualification criteria in selecting A&E firms. The Circular does not require a certain number of firms to be ranked. It does require that grantees make sure that competition is adequate. See, for example, paragraph 8.b regarding geographical preferences, where grantees may use them for A&E selections provided there are a "suitable" number of qualified firms to compete for the award, given the size and nature of the project. We would say that your agency has the discretion to determine whether or not you have a "suitable" number of firms for this project to ensure adequate technical competition. We would suggest you document the file to note that your solicitation (RFP) requirements were not restrictive, that the procurement was adequately publicized, and that two firms capable of doing the job responded. You might also want to look at the Circular paragraph 9.h, footnote #34. That reference deals with grantee determinations that competition was adequate after soliciting competitive proposals and receiving only one proposal. The point is that competition may be found to be adequate even when only one proposal is received. FTA Circular 4220.1E.

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. T&M work. Paying for the reimbursable expenses at cost would appear to be less of a problem that 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 avoid any potential of 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 dangerous 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.

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 (Circular 4220.1E, Grant Agreement, etc.). A. The FTA Procurement Circular 4220.1E paragraph 10.a requires: A cost analysis must be performed when the offeror is required to submit the elements (i.e., labor hours, overhead, materials, etc.) of the estimated cost, (e.g., under professional consulting and architectural and engineering services contracts, etc.). 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 by the FTA Circular 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. The Best Practices Procurement Manual and the FTA Circular 4220.1E. There is also a Pricing Guide for FTA Grantees at this web site under the “Online Tools and Resources” tab. This Guide is intended as a tool (not a requirement) for grantees in their analysis of contractors’ proposals.

Q. Our agency is preparing a Statement of Qualifications for an A/E Design project. For an SOQ, price is not allowed as an evaluation criteria, however I would like to include representation of DBE firms on the project team, as an evaluation factor. This project has several DBE subcontracting opportunities, however, I think it would be best met through race-neutral means. Do you have any suggested language? A. The DOT DBE rules require that grantees, when setting DBE subcontracting goals, evaluate the proposers' "good faith efforts" to meet the goal if the proposer in fact fails to meet the goal in their proposal. The issue of good faith efforts is covered in the Best Practices Procurement Manual (BPPM) section 7.3.5.4 - "Good Faith Efforts to Meet Contract Goals." The BPPM is available online. Your agency may set a DBE goal, but meeting it or showing good faith efforts to do so, meets the standard. It would also not be appropriate to give extra credit for going beyond the goal (or less for missing it).

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 job 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. As we said, it looks to us like the facts are in favor of a non-competitive contract with the original A&E firm to finish this partially completed project.

Q. There appears to be an inconsistency between your response to Valley Metro Rail and Circular 4220.1E/49 USC Sec. 5325(b). 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)? Frequently Asked Questions response to Valley Metro Rail states that FTA does not believe services needed for AA/DEIS fall under the requirements of the Brooks Act, and the list of services in 49 USC 5325(b) do not include the environmental planning services described by Valley Metro Rail. It seems that the work required for AA/DEIS falls within "a feasibility study" per 49 USC Sec. 5325(b). A. FTA's position is as follows: 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.

Q. Does solicitation of the Project Manager who will be responsible for the oversight of the implementation of the 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 and is available online..

Q. I have questions regarding procurement rules for A&E and testing services. Some of my questions include: 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? I could continue to provide 'what-if' scenarios, but I hope you get the idea through the limited samples provided. Can you help to lead me to publications that discuss this subject or provides rules regarding these types of contract situations? A. Conflicts of interest are discussed in the FTA Best Practices Procurement Manual (BPPM), Section 2.4.2.2.2 – 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. The BPPM is accessible online.. The two problems that can be caused by organizational conflicts of interest are bias and unfair competitive advantage. The FTA Procurement Circular 4220.1E paragraph 8(a)(5) states: “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. The other problem that may exist in doing the 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 available to potential offerors in follow on phases. 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.

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 any stamped plans, specifications, etc. This question seems similar to another question on the FTA Helpline FAQ concerning an Alternatives Analysis and Development of an Environmental Impact Statement. Our question is does the Brooks Act apply to our planning study RFP? A. You should first apply the test of determining where the preponderance of the work is - is it in Brooks Act type services or non-Brooks Act work? If the preponderance of the work is not in Brooks Act services, then the Brooks Act does not apply, even though there may be some work of that nature. It is assumed that the Brooks Act work could not feasibly be broken out from the other work and competed separately. A&E services are discussed in the Best Practices Procurement Manual, Section 6.5. The BPPM is available at the ftahelpline web site.

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 Brooks act? Do we need to advertise? A. You must follow Brooks Act qualifications based procedures for all A&E procurements regardless of dollar value. You do not need to 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 do 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. The BPPM is available online.

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 e.g. such as our legal firm we contract with. 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 Brooks Act requirements (i.e., an A&E qualifications based selection process). A&E procurements are covered in the Best Practices Procurement Manual (BPPM), Section 6.5 - Architect-Engineer Services. The BPPM is available online. You also note that the firm selected would be allowed to later compete for the work they are helping define for you. This would represent an impermissible organizational conflict of interest that is prohibited by the FTA Procurement Circular 4220.1E, paragraph 8.a. (5). The subject of conflicts of interest is covered in the BPPM, Section 2.4.2.2.2 - 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 don’t 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 do 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.

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.

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. You are required to use a qualifications-based selection process.

Q. We do not have sufficient expertise in house 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 under the terms of the Brooks act 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 the statute requiring Brooks Act procedures restricts these services to those pertaining to real property (40 USC § 541): “. . .professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and ….” The FTA Circular 4220.1E paragraph 9.e restricts the use of Brooks Act procedures to the kinds of services defined in the statute above. These regulations would not allow a grantee to use Brooks Act procedures for the acquisition of consulting services to develop specifications for software, as distinguished from real property.

Q. Is there a dollar limit where the Brooks Act does not apply? A. The Brooks Act qualifications-based selection process must be followed for all A-E procurements regardless of dollar value. The selection of A-E contractors is discussed in the FTA Best Practices Procurement Manual (BPPM), Section 6.5. The BPPM is available online.

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. We discussed your question with FTA Chief Counsel's Office in order to be sure we give you the correct advice. The Brooks Act will not allow you to conduct a price competition for CM work. FTA Circular 4220.1E paragraph 9.e requires grantees to use Brooks Act qualifications-based procedures for A&E services and CM is defined as an A&E service. You are allowed to negotiate with the A&E firm, and failing to agree on a price you consider fair and reasonable you may go to another source. Or you may elect to negotiate with the city for the work and bypass the A&E altogether. But Brooks will not allow a price competition between the city and the A&E.

Q. Can construction management services be bid or do they fall under the Brooks Act? A. We are sending you the latest version of "A&E Services" as discussed in the BPPM, Section 6.5. You will see in the "Requirements" block a citation from FTA Circular 4220.1E Paragraph 9.e which cites USC 5325(d), and this part of the USC says that construction management must be bought using qualifications based procedures (Brooks Act).

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 a "as needed" basis? A. It is our understanding that your agency competed this A&E contract using a Brooks Act qualifications process for the selection, and that it was a five year award. 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 Brooks Act word, so no price competition is allowed, and the technical qualifications issue has already been addressed in the initial contract award.

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 you to the qualifications and performance data in the initial short-listing decision, and the answer is no. 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). We would say 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).

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, system, etc. by a percentage limitation of the estimated construction cost. The price and cost/fee limitation on Federal A&E contracts as provided in the FAR subpart 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.

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 not be able to select the next most qualified firm as only 1 firm responded and will have to re-advertise. A. The FTA Circular envisions the situation where a grantee solicits competitive bids or proposals and receives only one response (FTA Circular 4220.1E, paragraph 9.h). 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.

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.

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 the final rule in the Federal Register, June 12, 2002, 40149. This is a FHWA ruling. Does this 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) 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. You may examine the FHWA position taken in its Notice of Proposed Rulemaking that was published in 65 FR 44486, July 18, 2000 at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2000_register&docid=00-17774-filed The FHWA final rule was published in the Federal Register on June 12, 2002 and may be found at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=02-14751-filed The FHWA memorandum on Indirect Cost Eligibility and Other TEA-21 Revisions to Title 23 U.S.C. Section 302 is available at: http://www.fhwa.dot.gov/tea21/indcosts.htm

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. The Brooks Act (Public Law 92-582, October 27, 1972) 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 with Federal money, unless the grantee’s State has adopted formal procurement procedures for A/E services, in which case the State procedures will govern.

Q. Is surveying of property covered by the Brooks Act? A. The Brooks Act defines surveying of property as a professional service which is of an architectural or engineering nature. Procurement of such work would be subject to the procedures of the Brooks Act unless your State has adopted formal procurement procedures for A-E services, in which case your State procedures will govern.

Q. Has the Brooks Act been repealed? At the City we have an Engineering Department. In their opinion the Brooks Act has been repealed. Their comments are as follows: "From what I can tell, the Brooks Act required qualification-based selection on federal projects (not fee-based). When we do our Consultant selections, they are qualifications-based selections. However, for the record, it appears as if the Brooks Act was repealed in August of 1996, so I don't know why the auditors would write you up for not referencing it. It might be of some value to follow up with them on this. The Internet site below show some information that may be of some help. http://irm.cit.nih.gov/itmra/hhsitmra.html (repealed)" A. The answer to your questions is that the Brooks Act has not been repealed. Federal legislation (TEA-21) allowed states to enact their own procedures for Architectural and Engineering (A-E) services, and if they do enact their own procedures, then those procedures take precedence over the Brooks Act. But the Brooks Act is still operative as indicated by the FTA Circular 4200.1E, paragraph 9e - "Procurement of Architectural and Engineering Services," which continues to invoke the Brooks Act procedures for A&E procurements. ___________ * FTA Circular 4220.1E

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 (Brooks Act). 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 subpart 36.602-1(b), "Selection Criteria." You are not bound by the FAR but you may find this discussion helpful.

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.

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. The FTA Circular 4220.1E, paragraph 9.e requires grantees to conform their procurements of A&E services to the Brooks Act. The Brooks Act requires that you not use 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. ____________ * FTA Circular 4220.1E

Q. Our state law exempts the procurement of personal services (surveying is specifically mentioned in the statute) from competitive procedures and FTA Circular 4220.1E states that "these requirements apply except to the extent any state adopts or has adopted by statute a formal procedure for the procurement of architectural and engineering services. The state of Ohio, Anderson's Ohio Revised Code 306.43 paragraph H, exempts the procurement of personal services (surveying is specifically mentioned in the statute) from competitive procedures. Can SORTA follow Ohio State legislation for this type of procurement? A.  FTA's interpretation of FTA Circular 4220.1E* is that grantees must follow the Federal Brooks Act procedures for all A&E procurements unless their State has a "mini-Brooks Act" for these services. Since Ohio does not have a mini-Brooks Act but requires grantees to follow Federal procurement procedures for A&E procurements (i.e., the Brooks Act), then grantees must use Federal procedures for all A&E services, including surveying which the Brooks Act defines as a type of work covered by the statute. ____________ * FTA Circular 4220.1E

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 requirements in C4220.1E. A.  Grantees are not required to follow the FAR* in their procurement activities. The FTA Circular 4220.1E** 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. ____________ * The FAR is available on the Internet at: http://www.arnet.gov/far/ ** FTA Circular 4220.1E

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? Valley Metro Rail requires 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 under the requirements of the Brooks Act. Several observations can be made, and several criteria can be cited against using the Brooks Act method. If the primary activity/profession is planning rather than engineering, it is inappropriate to use the Brooks method 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. The list of services in 49 USC 5325(b) that are subject to the Brooks Act do not include the environmental planning services you           have described.           Q.  Would traffic data collection be considered Architect/Engineering services and require us to follow the Brooks Act?  A.  In response to your question about whether traffic data collection services are A&E services as defined by the Brooks Act, FTA's Office of Chief Counsel does not believe that these services fall under the definition of A&E services as envisioned by the Brooks Act.  Q.  Is there a threshold dollar value for having to use the Brooks Act for small purchases (RFP) for A/E services? For a $22,000 project, must I use the formal Brooks Act process?   A.  You must follow Brooks Act qualifications-based procedures for all A&E procurements regardless of dollar value. The Act requires the short listing of at least three firms and discussions with them. These requirements are set forth in 40 USC 1103 (c), which is available online: http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t37t40+169 0+0++%28%29%20%20A For further information, A&E procurements are discussed in the Best Practices Procurement Manual, section 6.5. The BPPM is available online: http://www.fta.dot.gov/funding/thirdpartyprocurement/grants_financing_6037.html Q. 1. Does California have what would be considered a "mini-Brooks Act" such that grantees in the area should follow it instead of the Federal Brooks Act?  2. The California Supreme Court recently ruled 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? For the court ruling go to http://www.courtinfo.ca.gov/opinions/documents/S139917.PDF. 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. 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.   Q. Can we use an A&E contract to secure Environmental Consulting Services? The type of work that may be required is:  1. Assist Pace 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.  2. Assist in assuring Pace 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.  3. Provide training capabilities (either directly or through subcontractor) for SPCC briefings, OSHA right-to-know topics for garage staff.  4. Assist with determining the adequacy of spill training and equipment.  5. Assist with environmental health and safety information management practices.  6. Provide assistance in waste stream sampling, waste minimization studies, recycling efforts that contribute to reduced waste generation, and potential cost savings.  7. Support further development and growth of a corporate environmental management system.  8. Support further development of an annual compliance audit plan.  9. 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 USC 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 USC 5325 (a) requirement for full and open competition.