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U.S. Department of Transportation
Federal Highway Administration

Subject: INFORMATION: Office of Chief Counsel Participation in the FHWA Office of Acquisition Management Contracting and Federal Assistance Process
May 7, 2003
From: Ronald L. Endicott, Director [signed]
Office of Acquisition Management

Edward V.A. Kussy [signed]
Acting Chief Counsel

Reply to Attn of::
To: Office of Acquisition Management Staff

Office of Chief Counsel Staff

  1. PURPOSE: This policy memorandum provides guidance on the policy and procedures for consultation and coordination between the Office of Acquisition Management and the Office of Chief Counsel during the acquisition and Federal assistance process. This guidance updates and replaces FHWA Order 2-12, “Legal Participation in Procurement and Contracting”, dated January 16, 1969. This guidance refers to acquisition and Federal assistance matters arising at, or referred to, the FHWA Headquarters in Washington, DC, and does not govern the FHWA Field Legal Services Divisions or any of the FHWA field offices, including the Federal Lands Highway Division Offices.

  2. POLICY: As the acquisition and Federal assistance process may involve significant legal issues, it is the policy of the Federal Highway Administration that there be timely and continuing coordination of its contracting and Federal assistance activities with legal counsel to insure that all applicable requirements of law and regulations have been met. This policy is consistent with coordination between acquisition activities and legal counsel throughout the U.S. Department of Transportation and the Federal Government.


    1. Legal counsel shall review the following for legal sufficiency prior to submission to a contractor or awardee:

      1. Solicitation and Award Documents as described below (NOTE: These dollar limitations are minimum figures and may be increased by mutual agreement of the Office of Acquisition Management, at the division chief level, and the Office of Chief Counsel, by the Assistant Chief Counsel of the Administrative and Technology Law Division (HCC-40)):

        1. All contract solicitations and grant/cooperative agreement Requests for Applications (RFA's) with an anticipated total value of $500,000 or more, including all competitive and non-competitive awards (includes 8(a) awards).

        2. All competitively-awarded contracts/grants/cooperative agreements with a total value of $500,000 or more.

        3. All Federal Supply Schedule (FSS) solicitations and orders of $500,000 or more where best-value is being used to determine selection.

        4. Contract solicitations and awards with an anticipated total value of less than $500,000, where the Office of Acquisition Management of the Office of Chief Counsel determines that, due to the complexities of the action, or other reasons, a legal sufficiency review is warranted.

        5. Any modifications, amendments, changes to, or supplements of $500,000 or more to awards under a.(1) above that involve additional work, or otherwise change the original scope.


      1. Task Orders issued against FHWA contracts;

      2. Modifications that exercise contract options (including award term);

      3. Modifications/amendments for administrative matters. Examples include modifications/amendments obligating subject to availability of funds, changing key personnel, granting no cost time extensions, adjusting accounting and appropriations data strings, etc.

    3. All Justifications for Other than Full and Open Competition (contracts) or sole source justifications (assistance agreements) above the simplified acquisition threshold.

    4. Correspondence or inquiries with the General Accounting Office (GAO) relating to protests of award of FHWA contracts or any other legal issues. The Office of Chief Counsel shall be notified by the contracting officer immediately upon receipt of any protest, and shall review all protest documentation and decisions. For protests to the GAO, the Office of Chief Counsel shall lead the development of the Agency response to the protest and shall serve as the single point of contact between the FHWA and the GAO. Similarly, any correspondence or inquiries received in the Office of Chief Counsel concerning a contract solicitation or award will be coordinated with the cognizant contracting officer in the Office of Acquisition Management.

    5. Communications with contractors or bidders, other than routine administrative correspondence, involving legal matters, such as possible claims and interpretation of contract provisions.

    6. Other outgoing communications, including correspondence with Members of Congress and other Government agencies on matters listed in this order as requiring legal coordination.

    7. The Office of Chief Counsel shall review all proposed policy statements and substantive procedural regulations developed for agency-wide use concerning contracts and Federal assistance agreements, including any implementations of the Federal Acquisition Regulation (FAR), the Transportation Acquisition Regulation (TAR), the Transportation Acquisition Manual (TAM), and any regulations dealing with matters specified in this order (but not those relating to routine, internal, administrative or policy matters).

    8. Legal counsel shall review the following additional matters:

      1. Ratifications of unauthorized commitments submitted in accordance with FAR Subpart 602-3 and TAM 120602-

      2. Patents, intellectual property, copyrights, and other rights-in-data matters.

      3. Findings of Fact and Determinations under the "Disputes" clause, and contract appeals.

      4. Contract claims by and against the Government.

      5. Suspected irregularities, fraud or criminal violations.

      6. Suspension and debarment actions. (See also FWHA Order 2000.2A)

      7. Terminations for default or convenience of the Government.

      8. Show cause and cure notices.

      9. Contract settlements in cases where the Contract Disputes Act has been invoked.

      10. Alleged mistakes in bids.

      11. Remission of liquidated damages.

      12. Labor disputes involving violation of labor laws, or any matter before a Department of Labor Administrative Law Judge or Administrative Review Board.

      13. Rationale for withholding of information under a Freedom of Information Act request unless the request is withheld under 48 CFR 401(b).

      14. Questions regarding the applicability and interpretation of equal opportunity clauses.

      15. Questions involving contract law and determination of legal rights under contract provisions.

      16. New contract forms and provisions, including assistance in the development of standardized and special clauses.

      17. Novation agreements.

      18. “Other Transactions” and Cooperative Research and Development Agreements (CRADA's), as referenced under Section 502(a)(3)(c) of title 23 United States Code. FHWA Order M 1100.1A outlines the Agency's delegations of authority.

  4. NEGOTIATIONS, CONFERENCES AND MEETINGS. Legal counsel shall be afforded an opportunity to participate in negotiations, conferences, and meetings concerning contracts and Federal assistance agreements where other parties in attendance are represented by counsel or where the discussion is expected to involve legal problems or matters listed in this order as requiring legal coordination.

  5. OTHER ACQUISITION AND ASSISTANCE LEGAL SERVICES. Legal counsel is also available and should be consulted regarding any other matters which directly or indirectly bear upon or which may effect the rights of the FHWA or parties with whom it deals.

  6. PROCESS FOR REQUESTING LEGAL SERVICES. Requesters should use the attached form when requesting legal review of solicitation and award documents for contracts and Federal assistance activities. All requests for services should be submitted to the attention of the Chief, Administrative Law and Technology Division, Office of Chief Counsel, who will assign the request to appropriate legal staff for action. In general, concurrence or comments will be provided by the Office of Chief Counsel within three full working days from the date and time the request is received (for example, a request received at 3:00 p.m. on a Friday would be ready the following Wednesday at 3:00 p.m.). If a longer period will be required for review, the Office of Chief Counsel will contact the requester to discuss options and alternatives.

  7. ADDITIONAL INFORMATION. For additional information, contact the Program Office Liaison Division, Office of Acquisition Management, (202) 366-6991, or the Office of Chief Counsel's Administrative and Technology Law Division, HCC-40, (202) 366-0780.

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