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Procurement, Management, and Administration of Engineering and Design Related Services - Questions and Answers

II. Other Procurement Procedures

  1. In addition to competitive negotiation/qualifications based selection (Brooks Act) procedures, what other procedures are allowed for the procurement of engineering and design related services funded with FAHP funding? (Updated 08.01.2016)
  2. What are small purchase/simplified acquisition procedures and when may this procurement method be utilized for engineering and design related services funded with FAHP funding? (Updated 08.01.2016)
  3. What is the small purchase/simplified acquisition threshold amount? (Updated 08.01.2016)
  4. What happens if a contract modification causes a small purchase contract to exceed the Federal simplified acquisition threshold or a lesser State established threshold? (Updated 08.01.2016)
  5. What are noncompetitive procedures and when may this procurement method be utilized for engineering and design related services funded with FAHP funding? (Updated 08.01.2016)
  6. For FAHP funded engineering and design related services with total estimated contract costs exceeding the established small purchase/simplified acquisition threshold and which do not satisfy noncompetitive procurement requirements, may a contracting agency use its own procurement procedures that are different from the competitive negotiation/qualification based selection (Brooks Act) procedures? (Updated 08.01.2016)

1. In addition to competitive negotiation/qualifications based selection (Brooks Act) procedures, what other procedures are authorized for the procurement of engineering and design related services funded with FAHP funding? (Updated 08.01.2016)

In addition to competitive negotiation/qualifications based selection, small purchase/simplified acquisition and noncompetitive procedures may be used under limited conditions applicable to each method (as specified in 23 CFR 172.7(a)(2)-(3)). (See Other Procurement Procedures Question & Answer Nos. 2 and 5)

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2. What are small purchase/simplified acquisition procedures and when may this procurement method be used for engineering and design related services funded with FAHP funding? (Updated 08.01.2016)

Small purchase procedures (as specified in 23 CFR 172.7(a)(2)) involve contracts with total costs below the lesser of the Federal simplified acquisition threshold (as specified in 48 CFR 2.101 and currently established at $150,000) or the State's established threshold (See Other Procurement Procedures Question & Answer No. 3). Small purchase/simplified acquisition procedures for engineering and design related services do not have to follow a competitive negotiation/qualifications based selection (Brooks Act) process (See Competitive Negotiation Question & Answer Nos. 1-2) given the amount of contract award, however, the contracting agency should take steps to ensure that an adequate number of qualified firms be considered. The FHWA considers three sources as the minimum number to meet the adequate number of sources requirement.

For small purchase procurements, State and local public agencies must follow the State's laws, regulations, and procurement procedures which are not in conflict with applicable Federal laws and regulations (as specified in 23 CFR 172.7(a)(2),2 CFR 200.101, 2 CFR 200.317, and 2 CFR 1201.317). Project phases and contract requirements should not be broken down into smaller components merely to permit the use of small purchase procedures (as specified in 23 CFR 172.7(a)(2)).

In the rare instance where  Federal-aid funds are awarded directly to a recipient (grantee) other than a State, such as a city or a county, the provisions of 2 CFR 200.318-200.326 apply. The subsequent procurement, management, and administration of these services must comply with these provisions. Section 2 CFR 200.320 also requires that price and rate quotations shall be obtained from an adequate number of sources for small purchase/simplified acquisition procedures.

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3. What is the small purchase/simplified acquisition threshold amount? (Updated 08.01.2016)

The maximum total cost of a contract for services procured under small purchases  procedures is established in 23 CFR 172.7(a)(2) shall be the lesser of the Federal simplified acquisition threshold as specified in 48 CFR 2.101 (currently established at $150,000) or a State's established threshold.

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4. What happens if a contract modification causes a small purchase contract to exceed the Federal simplified acquisition threshold or a lesser State established threshold? (Updated 08.01.2016)

The full amount of any contract modification or amendment that would cause the total contract amount to exceed the Federal simplified acquisition threshold (currently established at $150,000), or a lesser State established threshold (See Other Procurement Procedures Question & Answer No. 3), would be ineligible for FAHP funding. The FHWA reserves the right to withdraw all FAHP funding from a contract if it is modified or amended above the applicable established simplified acquisition threshold.

For small purchase procurements, State and local public agencies must follow the State's laws, regulations, and procedures which are not in conflict with applicable Federal laws and regulations (as specified in 23 CFR 172.7(a)(2) and 2 CFR 200.101, 2 CFR 200.317 and 2 CFR 200.318). Project phases and contract requirements should not be broken down into smaller components merely to permit the use of small purchase procedures (as specified in 23 CFR 172.7(a)(2)(i)).

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5. What are noncompetitive procedures and when may this procurement method be utilized for engineering and design related services funded with FAHP funding? (Updated 08.01.2016)

Noncompetitive procurement (as specified in 23 CFR 172.7(a)(3)) involves the procurement of engineering and design related services when it is not feasible to award the contract using competitive negotiation or small purchase procurement methods. Noncompetitive procurement may only be used under limited circumstances and should be addressed within the STA’s written policies and procedures as specified in 23 CFR 172.5(c)(7) and approved by FHWA.

Circumstances under which a contract may be awarded by noncompetitive procurement procedures are limited to the following: the service is only available from one source, there is an emergency which will not permit the time necessary to conduct competitive negotiations, or after solicitation of a number of sources, competition is determined to be inadequate (as specified in 23 CFR 172.7(a)(3)(iii)).

In addition, State and local public agencies must follow the State's laws, regulations, and procedures which are not in conflict with applicable Federal laws and regulations (as specified in 2 CFR 200.101 and 2 CFR 200.317).

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6. For FAHP funded engineering and design related services with total estimated contract costs exceeding the established small purchase/simplified acquisition threshold and which do not satisfy noncompetitive procurement requirements, may a contracting agency use its own procurement procedures that are different from the competitive negotiation/qualification based selection (Brooks Act) procedures? (Updated 08.01.2016)

No, competitive negotiation/qualifications based selection procedures must be used to procure these engineering and design related services (as specified in 23 U.S.C. 112(b)(2)(A) and 23 CFR 172.7(a)(1)).

Section 174 of the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act, 2006 ("the FY 2006 Appropriations Act") amended 23 U.S.C 112(b)(2) and removed provisions of law authorizing the use of equivalent or alternative procedures to the Brooks Act and required that engineering and design contracts be awarded in the same manner as a contract for architectural and engineering services is negotiated under the Brooks Act. As a result, State and local public agencies are no longer entitled to procure engineering and design related service contracts with FAHP funding using either "alternative" or "equivalent" procedures that were permitted prior to the amendment.

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Updated: 08/17/2016
Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000