49 CFR 18.36(a)
49 CFR 18.37(a)
23 CFR 710.201(g)
23 CFR Part 200
23 CFR 1.33
The regulations contained in 49 CFR 18.36(a) and 18.37(a) are primary, and govern how state Departments of Transportation (DOTs) and local public agencies (LPAs) are to procure right-of-way (ROW) contractual services.
Regulations contained in 23 CFR Part 200 cover Title VI, Civil Rights requirements. Conflict of interest is covered in 23 CFR 1.33.
Each state DOT has its own contracting requirements which it must follow. LPAs should obtain and use the state DOT procurement procedures, requirements, and guidelines appropriate for their work. State DOTs and LPAs need to maintain records sufficient to detail the significant history of a procurement.
The Federal Highway Administration (FHWA) allows state DOTs to use the same procurement procedures on federally funded ROW service contracts that they use on non-federally funded projects. Contracting requirements for LPAs, as sub-grantees, must follow the state DOT procedures, unless the state has approved the sub-grantee to use its own procedures.
The procurement procedures followed by a state DOT when executing ROW service contracts on Federal-aid projects are the same policies and procedures used for procurement with non-Federal funds. However, the state DOT must ensure that every purchase order and contract includes clauses required by Federal statutes and implementing regulations, as well as state requirements. State contracting officials will be able to assist in delineating the appropriate clauses that each contract must contain.
49 CFR 18.37(a) requires the state to administer sub-grants to local governments in accordance with the state's own procedures. Therefore, local government sub-grantees, i.e., LPAs are to follow the procurement procedures specified by the state, unless the state approves the sub-grantee's use of its own procurement procedures.
CONTRACTING FOR SERVICES GUIDELINES
CONTRACTING FOR SERVICES
There are many types of contracts that are acceptable and currently used for ROW services contracts:
This technique allows solicitation of a proposal from only one source. This sometimes occurs when, after solicitation of proposals from a number of sources, competition is determined inadequate. Procurement may be subject to cost analysis by the agency or pre-award review. States in which contractors are paid by billable hours use pre-award audits where overhead rates are agreed upon prior to the notice to proceed with work. Care is used when reviewing contractor billings to assure that charges accurately reflect contractor progress toward project completion.
This method is usually used when the award of a contract is not feasible under small purchase procedures, sealed bids, or competitive proposals and one of the following applies:
Small Purchase Procedures
These are relatively simple procurement methods for securing services, supplies, or other property that often do not cost more than a specific dollar threshold. Often when small purchase procedures are used, price or rate quotations are usually obtained from an adequate number of qualified sources.
Under this technique bids are publicly solicited and a fixed-price contract (lump sum or unit price) is awarded to the responsible bidder whose bid conforms to the material terms and conditions of the invitation for bids and is lowest in price.
Using this method, the best qualified contractor is selected and the price is negotiated.
Do a thorough pre-qualification screening. Check with previous customers as to quality and timeliness of the work product. It is important to know whether the contractor has had previous highway ROW experience or experience with federally funded projects administered under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act). Check backgrounds and references.
Often acquiring agencies (because of political considerations) will want specific firms to do the work. Important things to remember are:
Once contractors have been pre-qualified, a request for proposal may be prepared and a proposal requested. When all proposals for a particular job are received, an evaluation process is undertaken. The evaluation process involves analysis of price, staff, as well as the general capability to do the job.
In general, contracts contain the following items. Item 4n. below, regarding non-discrimination clauses, is a requirement of the governing regulations. Contracts must contain the provisions required in 49 CFR 18.36(i).
A sample of current contracts, requests for proposals, and general guidance is available on the FHWA Office of Real Estate Services Website: www.fhwa.dot.gov/real_estate/right-of-way/program_administration/
What happens after the contract has been signed and before you make the final payment is called contract administration. Following are the typical steps in this process: