Subject: INFORMATION: Contracting Procedures Under 49 CFR, Part 18
Date: November 2, 1994
From: Associate Administrator for Program Development (HNG-13)
To: Regional Administrators
We have received a number of questions relating to the procurement of planning, right-of-way (ROW), and architectural and engineering (A/E) design services under the provisions of 23 U.S.C. and 49 CFR, Part 18. The responses in this memorandum have been coordinated in Headquarters with the Offices of Chief Counsel, Environment and Planning, Engineering, Fiscal Services, and Right-of-Way.
Question 1. Can ROW or other non A/E services be a part of an A/E contract when it is a small part of the overall contract? If it is allowable, under what conditions?
Response: Yes, if State procedures allow it.
With the exception of physical construction and procurement of A/E design services (which are exceptions covered by 49 CFR 18.36(j) and (t)), a State is to use its own procedures for procurement of goods and services in accordance with 49 CFR 18.36(a). Therefore, if State procedures allow inclusion of services such as planning or ROW in a contract for A/E design services that has been awarded based on 23 CFR Part 172 (i.e., qualifications based), such services may be included in the same contract. In all cases, however, the requirements of 23 CFR, Part 172 must be met for the A/E design services portion of such a combined contract.
Question 2. Do planning and ROW acquisition both fall under 49 CFR 18.36(d)(3)(iv), or does planning fall under 49 CFR 18.36(d)(3)(v)?
Response: The procedures of 49 CFR 18.36(b) through (i) only apply when the first level grantee is a grantee other than a State. Therefore, these procedures do not apply to typical Federal-aid highway funded procurements since the State is the first level grantee. Other than for physical construction and procurement of A/E design services, a State is to use its own procedures for procurement of goods and services in accordance with 49 CFR 18.36(a). In addition, 49 CFR 18.37(a) has been interpreted to provide that the State is to administer sub-grants to local governments (including metropolitan planning organizations) in accordance with the State's own procedures. Therefore, local government sub-grantees of a State are to follow the procurement procedures specified by the State.
Question 3. If a design/build approach were taken on a project, would a second contract be required for ROW acquisition?
Response: If the design/build approach is taken on a project, ROW is normally made available by the State. It is hypothetically possible to include ROW acquisition services as part of the design/build approach if allowed by State procedures for procurement of such services. Presently, to be eligible for Federal-aid participation, the design/build project must be approved as part of FHWA's Special Experimental Project No. 14, "Innovative Contracting Practices," and must be awarded using competitive bidding procedures.