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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? (Updated 08.01.2016)
  2. Are contracting agencies required to conduct performance evaluations of consulting firms working on FAHP funded engineering and design related services contracts? (Updated 08.01.2016)
  3. May on-call (indefinite delivery/indefinite quantity (IDIQ)) type contracts be utilized for FAHP funded engineering and design related services? (Updated 08.01.2016)

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? (Updated 08.01.2016)

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 2 CFR 200) (as specified in 2 CFR 200.333). These records shall be maintained for a minimum period of three years following submittal of the final voucher (as specified in 23 CFR 172.9(c)(1)(v)).

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 (as specified in 23 CFR 172.9(c)(1)(iv)). 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 2 CFR 200.333).

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2. Are contracting agencies required to conduct performance evaluations of consulting firms working on FAHP funded engineering and design related services contracts? (Updated 08.01.2016)

Yes. In accordance with 23 CFR 172.9(d)(2), contracting agencies are required to prepare an evaluation summarizing the consultant’s performance on a contract. The performance evaluation should include, but not be limited to, an assessment of the timely completion of work, adherence to contract scope and budget, and quality of the work conducted.

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.

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3. May on-call (indefinite delivery/indefinite quantity (IDIQ)) type contracts be utilized for FAHP funded engineering and design related services? (Updated 08.01.2016)

Yes, the procurement of services to be performed under on-call contracts is allowed under 23 CFR 172.9 and must follow either competitive negotiation or small purchase procurement procedures, as specified in 23 CFR 172.7.

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, not to exceed 5 years including extentions, 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.

If multiple firms are to be procured through a single solicitation for specific on-call services, the number of consultants that may be selected or contracts that may be awarded along with procedures for award of task orders among the selected firms must also be defined in the solicitation and contract provisions. Task orders may not be competed and awarded among the selected, qualified consultants on the basis of costs. Contracting agencies may, however, select qualified firms on a regional basis (as described in 23 CFR 172.9(a)(3)(iv)(B)(2)) or through an additional qualifications-based procedure with opportunity for discussions between the contracting agency and qualified firms for each specific task order. 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 172.7(a)(1)).

Policies and procedures for the procurement, 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 172.5(c)).

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Updated: 08/17/2016
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