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Procurement, Management, and Administration of Engineering and Design Related Services - Questions and Answers
VI. Contract Administration
1. What record keeping and retention requirements apply to a contracting agency for the procurement (solicitation, evaluation, selection, and contract negotiation) of a consulting engineering firm for FAHP funded engineering and design related services? (Posted 7-20-11)
FAHP funding recipients and sub-recipients must maintain adequate and readily accessible project performance and financial records, supporting documents, and other records which are considered pertinent to the grant agreement and compliance with applicable Federal laws and regulations (e.g., 23 U.S.C. 112, 40 U.S.C. 1101-1104, 23 CFR 172, 48 CFR 31, and 49 CFR 18) (as specified in 49 CFR 18.42). These records shall be maintained for a minimum period of three years following submittal of the final voucher and all other pending matters are closed (as specified in 49 CFR 18.42(b)).
As such, contracting agencies must maintain records to detail the significant history of a procurement which must adequately demonstrate compliance with applicable Federal laws and regulations. These records should include, but are not necessarily limited to: rationale for the method of procurement, contract type, and payment method; the solicitation (advertisement/announcement) for services including the scope, requirements, and evaluation criteria for selection; documents supporting evaluation, discussion, ranking, and final selection; and documents supporting the analysis, negotiation, and agreement on fair and reasonable compensation.
The extent of procurement history documentation should be reasonable and commensurate with the size and complexity of the procurement itself. Procurement record keeping requirements should be defined within a contracting agency's written policies and procedures to ensure records are consistently and uniformly maintained.
Similar record keeping and retention requirements for consulting firms are to be included in all contracting agency contract provisions (as specified in 49 CFR 18.36(i)(10)-(11)).
2. Are contracting agencies required to conduct performance evaluations of consulting firms working on FAHP funded engineering and design related services contracts? (Posted 7-20-11)
Contracting agencies intending to utilize FAHP funding for engineering and design related services must prepare and receive approval of written policies and procedures for each method of procurement to be utilized (as specified in 23 CFR 172.9(a)). Among other items the written procedures are required to address, these procedures must cover the steps "in monitoring the consultant's work and in preparing a consultant's performance evaluation when completed" (as specified in 23 CFR 172.9(a)(5)). Therefore, at a minimum, contracting agencies must conduct an evaluation of the consultant's performance of the procured services when completed.
Many agencies also perform interim evaluations, providing constructive feedback and encouraging communication throughout the performance period. Interim evaluations also allow for a focused evaluation of components/milestones of a project, mitigating loss of knowledge from changes in personnel and fostering continuous improvement by the consultant and contracting agency. Some contracting agencies even perform a construction quality assessment during or after construction to capture the role that the quality of design plans may have in the construction of the project. Typically, consultant performance evaluations are captured in a database and then utilized as a measure of past performance in the selection process on future projects consistent with the Brooks Act (as specified in 40 U.S.C. 1103(c)). As such, consulting firms should be provided an opportunity to respond in writing to an evaluation or pursue an established appeals process if the consultant believes an evaluation is incorrect.
3. May on-call (indefinite delivery/indefinite quantity (IDIQ)) type contracts be utilized for FAHP funded engineering and design related services? (Posted 7-20-11)
Yes, provided a reasonable maximum length of contract and maximum dollar amount of contract are defined within the solicitation and contract provisions.
A standard on-call contract requires a consulting firm to provide work and services on an as-needed or on-call basis. On-call contracts are typically used when a specialized service will be needed for a number of different projects (e.g., field surveying, geotechnical boring, wetland determination, hazardous waste analysis, traffic signal design, lighting design, etc.). To maintain the intent of the Brooks Act (40 U.S.C. 1101-1104) in promoting open competition and selection based on demonstrated competence and qualifications, a maximum length of contract and maximum dollar amount of contract must be defined within the solicitation and provisions of an on-call contract. These thresholds provide for a defined termination of the contract to prevent an infinite amount of workload over an infinite period of time being awarded to a single consulting firm. Should additional services be required after an established threshold has been met, a solicitation for a new contract would be required, ensuring open competition and selection of the most highly qualified firm are achieved.
A definitive maximum contract length is not defined in applicable Federal laws and regulations. In many instances, State and local laws and regulations may limit the contract authority (length and amount of contract) that a contracting agency may engage in for an on-call contract. Many States have contract time limitations which range from two to five years. Several States provide an initial contract period with the ability to extend the contract additional years up to a maximum number of years (e.g., two year initial contract with optional one-year extensions up to a maximum of five years total).
If multiple firms are to be procured through a single solicitation for specific on-call services, the procedures for award of task orders among the selected firms must also be defined in the solicitation and contract provisions. Task orders may be awarded to the selected, qualified firms on a regional basis or through an additional qualifications based procedure with opportunity for discussions between the contracting agency and qualified firms for each specific task order. The procedures for awarding task orders among the selected firms shall be based on scope and qualifications, and not based on a bidding process or solely on cost proposals. All requirements for FAHP funded engineering and design-related services contracts shall be made by public announcement with evaluation and selection based on demonstrated competence and qualifications for the type of services required (as specified in 23 U.S.C. 112(b)(2)(A), 40 U.S.C. 1101, and 23 CFR 172.5(a)(1)).
Policies and procedures for the use, management, and administration of on-call contracts must be provided in a contracting agency's approved written procurement policies and procedures (as specified in 23 CFR 172.9(a)). These on-call contract policies and procedures should address development of reasonable contract length limits, dollar amount thresholds, and procedures for awarding tasks if multiple firms are selected.