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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? (Posted 7-20-11)
  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? (Posted 7-20-11)
  3. What is the small purchase/simplified acquisition threshold amount? (Posted 7-20-11)
  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? (Posted 7-20-11)
  5. What are noncompetitive procedures and when may this procurement method be utilized for engineering and design related services funded with FAHP funding? (Posted 7-20-11)
  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? (Posted 7-20-11)

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? (Posted 7-20-11)

In addition to competitive negotiation/qualifications based selection, small purchase/simplified acquisition and noncompetitive procedures may be utilized under limited conditions applicable to each method (as specified in 23 CFR 172.5(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 utilized for engineering and design related services funded with FAHP funding? (Posted 7-20-11)

Small purchase procedures (as specified in 23 CFR 172.5(a)(2)) involve contracts with total costs below the lesser of the Federal simplified acquisition threshold (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 172.5(a)(2) and 49 CFR 18.4 and 18.36(a)). 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 172.5(a)(2)).

When Federal-aid funds are awarded directly to a grantee other than a State, such as a city or a county, the provisions of 49 CFR 18.36(b)-(i) apply. The subsequent procurement, management, and administration of these services must comply with these provisions. Section 49 CFR 18.36(d) 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? (Posted 7-20-11)

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

Small purchase procedure provisions (as specified in 23 CFR 172.5(a)(2)) reference the Federal simplified acquisition threshold fixed in 41 U.S.C. 403(11) which specifies $100,000 as the maximum threshold. A Final Rule (75 FR 53129) issued on August 30, 2010, and effective on October 1, 2010, raised the Federal simplified acquisition threshold established in 48 CFR 2.101 of the FAR from $100,000 to $150,000 to account for inflation using the Consumer Price Index as required in statute. Although revisions to the threshold amount specified within 41 U.S.C. 403(11) have not yet been issued, the amended FAR implements Federal statute and carries the full force and effect of law. In order to extend the same flexibility of Federal contracting for small purchases to recipients and sub-recipients as intended in 23 CFR 172, FHWA shall consider the $150,000 simplified acquisition threshold established in 48 CFR 2.101 as the maximum threshold for use on FAHP funded engineering and design related contracts. FHWA anticipates proposing a conforming change to 23 CFR 172 to reference this FAR provision.

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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? (Posted 7-20-11)

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 172.5(a)(2) and 49 CFR 18.4 and 18.36(a)-(b)). 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 172.5(a)(2)).

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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? (Posted 7-20-11)

Noncompetitive procurement (as specified in 23 CFR 172.5(a)(3)) may only be used under limited circumstances. Contracting agencies desiring to use this procurement method must first submit a formal request and justification to the FHWA for approval, prior to utilizing this procurement method for FAHP funded services. 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.

In addition to FHWA approval for participation of FAHP funding in a noncompetitive procurement, 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 49 CFR 18.4 and 18.36(a)).

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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? (Posted 7-20-11)

No, competitive negotiation/qualifications based selection procedures must be utilized to procure these engineering and design related services (as specified in 23 U.S.C. 112(b)(2)(A) and 23 CFR 172.5(a)(1)).

On November 30, 2005, an amendment to 23 U.S.C 112(b)(2) was enacted into law in 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"). Section 174 removed existing provisions of law providing 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.

Please note that several provisions contained within 23 CFR 172 currently reference alternative or equivalent procedures. However, these provisions, which were last revised in 2002, were superseded with the aforementioned 2005 changes in law. FHWA anticipates issuing a notice of proposed rulemaking (NPRM) to remove all references to these alternative or equivalent procedures.

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Contacts

Danial Parker
Office of the Chief Financial Officer
720-963-3216
E-mail Danial

 
 
Updated: 07/20/2011
 

FHWA
United States Department of Transportation - Federal Highway Administration