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

IX. Other Considerations

  1. If a State or local public agency does not use FAHP funding for an engineering and design related services contract and uses its own procurement procedures, is the related construction project(s) still eligible for FAHP funding? (Updated 08.01.2016)
  2. May a contracting agency incorporate other parts of the FAR outside of the cost principles (as specified in 48 CFR 31) into their procurement, audit, and contract administration policies and procedures for FAHP funded engineering and design related services contracts? (Updated 08.01.2016)
  3. What is the definition of "management role" as it pertains to the requirement for FHWA approval prior to procuring a consultant to act in a management role for the contracting agency (as specified in 23 CFR 172.9(d))? (Updated 08.01.2016)
  4. Can a contracting agency accept donations of engineering and design related services from third parties? (Updated 08.01.2016)

1. If a State or local public agency does not use FAHP funding for an engineering and design related services contract and uses its own procurement procedures, is the related construction project(s) still eligible for FAHP funding? (Updated 08.01.2016)

Yes, a physical construction authorization is a separate Federal action which carries its own eligibility requirements (as specified in 23 CFR 635 Subpart C).

Federal laws and regulations for procuring, managing, and administering engineering and design related services contracts are specific to the use of FAHP funding for the engineering and design related services. Federal requirements do not apply to activities, phases, or projects that are funded with State or local funds, except as otherwise specified in law (e.g. Buy America requirements; 23 U.S.C. 313) However, as with other project expenditures that do not comply with Federal requirements, the costs of consultant service contracts that utilize only State or local funding which were not procured, negotiated, or administered in accordance with applicable Federal and State laws and regulations would not subsequently be available to meet the non-Federal share of costs for subsequent phases (e.g., construction) of a FAHP funded project (as specified in 23 CFR 1.9(a)). More information on non-Federal match requirements may be found at: http://www.fhwa.dot.gov/legsregs/directives/policy/memonfmr20091229.htm.

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2. May a contracting agency incorporate other parts of the FAR outside of the cost principles (as specified in 48 CFR 31) into their procurement, audit, and contract administration policies and procedures for FAHP funded engineering and design related services contracts? (Updated 08.01.2016)

Yes, a contracting agency may formally adopt, by statute or within approved written policies and procedures (as specified in 23 CFR 172.5(c)), any direct Federal contracting provision as long as it is not in conflict with the requirements, principles, or intent of the Federal laws and regulations applicable to the procurement of engineering and design related services contracts utilizing FAHP funding.

Generally, in order for a non-Federal contracting agency to apply Federal contracting provisions, either the Federal grant program or State requirements must incorporate by reference the particular Federal statute or regulation the contracting agency applies. Alternatively, a contracting agency may formally adopt the direct Federal contracting requirement provided it is not in conflict with the Federal grant program requirements. This is consistent with the Uniform administrative requirements, cost principles, and audit requirements for Federal awards (2 CFR 200) which authorizes a contracting agency to procure consistent with its own policies and procedures, except when an applicable Federal law or regulation conflicts with those procedures (as specified in 2 CFR 200.101 and 2 CFR 200.317). When the State or local policies and procedures are in conflict with Federal requirements, the Federal requirements prevail where use of Federal funds is involved.

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3. What is the definition of "management support role" as it pertains to the requirement for FHWA approval prior to procuring a consultant to act in a management support role for the contracting agency (as specified in 23 CFR 172.7(b)(5))? (Updated 08.01.2016)

A consultant acting in a management advisory role may be defined as a consulting firm or individual representative of a firm acting on the contracting agency's behalf to perform engineering management services or other services which are subject to review and oversight by agency officials, such as a program or project administration role typically performed by the contracting agency and necessary to fulfill the duties imposed by title 23 U.S.C., other Federal and State laws, and applicable regulations. This could include providing oversight of a program element on behalf of the contracting agency or serving as a general engineering consultant (GEC) to manage and provide oversight of a major project, series of projects, and/or the work of other consultants and contractors on behalf of a contracting agency. FHWA Division Office and State DOT stewardship and oversight agreements may further define a management support role and specific responsibilities within each State.

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4. Can a contracting agency accept donations of engineering and design related services from third parties? (Updated 08.01.2016)

Yes. A contracting agency may accept donations of engineering and design related services by a third party if incurred after the date of Federal-aid authorization for the project if the services satisfy FAHP eligibility and program requirements.

The value of third party in-kind contributions, incurred during the grant period, is allowed to be applied toward the non-Federal share of a Federal-aid project (as specified in 2 CFR 200.306). The fair market value of such services may be eligible for credit against the contracting agency's share of the participating costs of the project provided the services and associated fair market value costs satisfy FAHP eligibility and program requirements for engineering and design related services.

More information on non-Federal match requirements may be found at: http://www.fhwa.dot.gov/legsregs/directives/policy/memonfmr20091229.htm

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Updated: 08/17/2016
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