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? (Posted 7-20-11)
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. 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. More information on non-Federal match requirements may be found at: http://www.fhwa.dot.gov/legsregs/directives/policy/memonfmr20091229.htm.
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? (Posted 7-20-11)
Yes, a contracting agency may formally adopt, by statute or within approved written policies and procedures (as specified in 23 CFR 172.9(a)), 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, the Federal grant program must incorporate by reference the particular Federal statute or regulation the contracting agency must apply. 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 Common Grant Rule (49 CFR 18) 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 49 CFR 18.4 and 18.36(a)). 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.
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))? (Posted 7-20-11)
A consultant acting in a management role may be defined as a consulting firm or individual representative of a firm acting on the contracting agency's behalf to perform inherently governmental functions or fulfilling a program or project administration role typically performed by the contracting agency. 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 management role and specific responsibilities within each State.
4. Can a contracting agency accept donations of engineering and design related services from third parties? (Posted 7-20-11)
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.
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 49 CFR 18.24(a)(2)). 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.