[Code of Federal Regulations] [Title 23, Volume 1] [Revised as of April 1, 2002] From the U.S. Government Printing Office via GPO Access [CITE: 23CFR172.7] [Page 22-24] TITLE 23--HIGHWAYS CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION PART 172--ADMINISTRATION OF ENGINEERING AND DESIGN RELATED SERVICE CONTRACTS--Table of Contents Subpart A--Procurement Procedures Sec. 172.7 Methods of procurement. This regulation addresses three methods of procurement for the hiring of consultants to perform engineering and design related services specified in 23 U.S.C. 112(b)(2). These methods are: competitive negotiations which follows qualifications-based selection procedures or another selection procedure permitted by State statutes; small purchase procedures for small dollar value contracts; and non-competitive negotiations where specific conditions exist allowing negotiations to take place with a single firm. (a) Competitive negotiation. Competitive negotiation should be used for the selection of a consultant to provide engineering and design related services. The following procedures shall apply to the competitive negotiation process: (1) Scope, evaluation factors and cost estimate development. The contracting agency shall prepare: (i) A scope of work before issuing a Request for Proposal that reflects a clear, accurate, and detailed description of the technical requirements for the services to be rendered and a list identifying the evaluation factors and their relative importance. (ii) A detailed cost estimate, except for contracts awarded under small purchase procedures, with an appropriate breakdown of specific types of labor required, work hours, and an estimate of the consultant's fixed fee (considering the risk and complexity of the project) for use during negotiations. (2) Soliciting proposals--(i) Solicitation. The solicitation process shall be by advertisement (project, task or service), by mailing Requests for Proposals to certified/prequalified consultants, or any other method that ensures qualified in-State and out-of-State consultants are given the opportunity to be considered for award of a contract. It shall include a process where either: (A) General interest is solicited for performing the work; responding consultants are ranked based on an evaluation of their qualification statements (submitted with their letters of interest or on file with the contracting [[Page 23]] agency); and proposals are requested from three or more firms starting with the highest ranked firm, or (B) Proposals are solicited from all consultants that are interested in being considered for the work. (ii) Request for proposal. The request for proposal shall: (A) Provide a description of the scope of work and identification of the evaluation factors including their relative importance as included in paragraph (a)(1) of this section. (B) Specify the method(s) of payment (lump sum, cost plus a fixed fee, cost per unit of work, or specific rate(s) of compensation). (C) Request the submission of a proposal. Priced proposals may be used in the selection phase if allowed for under a State statute, but shall not be used in the selection phase when qualifications-based procedures are used. (D) Allow sufficient time for the consultant to prepare and submit the proposal. (3) Analysis and selection--(i) The consultants' proposals, containing the information required by paragraph (a)(2) of this section, shall be evaluated and ranked by the contracting agency. This process shall include an analysis of the proposals in comparison to the evaluation factors. In addition, the consultants' applicable work experience, present workload, past performance, staffing capabilities, etc., should be evaluated and included in the ranking process. (ii) The award of engineering and design related services shall: (A) Utilize qualifications-based procedures that either comply with the provisions of Title IX of the Federal Property and Administrative Services Act of 1949 (Pub. L. 92-582, 86 Stat. 1278 (1972), as amended) or utilize equivalent State qualifications-based procedures, or (B) Utilize a formal procurement procedure that is established by State statute or is subsequently established by State statute. (iii) The contracting agency shall retain acceptable documentation of the proposal, evaluation and selection of the consultant. Records shall be maintained in accordance with the provisions of 49 CFR 18.42. (4) Negotiation responsibilities. (i) The negotiator shall use all resources available to conduct effective negotiations, including but not limited to, the refined scope of work, the evaluation factors and their relative importance, the agency's cost estimate as required in paragraph (a)(1) of this section and the audit opinion issued as a result of the prenegotiation audit required in Sec. 172.5(c) of this part. (ii) The negotiator shall separately negotiate the dollar amounts for elements of cost and a fixed fee except for services normally negotiated on a per unit (includes costs and fees) cost. (iii) The contracting agency shall maintain records of negotiations to document negotiation activities and set forth the resources considered by the negotiator. Records shall be maintained in accordance with the provisions of 49 CFR 18.42. (5) Execution of contracts. The proposed contract including the agreed upon cost figures shall be submitted to the FHWA for approval prior to its execution. (b) Small purchases. Contracting agencies may use small purchase procedures for the procurement of engineering and design related services when the contract cost does not exceed $25,000. (c) Noncompetitive negotiation. Noncompetitive negotiation may be used to obtain engineering and design related services when the award of a contract is not feasible under small purchase or competitive negotiation procedures. The contracting agency shall submit justification and receive approval from the FHWA before using this form of contracting when Federal-aid highway funds are used in the contract. (1) Circumstances under which a contract may be awarded by noncompetitive negotiation are limited to the following: (i) The service is available only from a single source, or (ii) There is an emergency which will not permit the time necessary to conduct competitive negotiations, or (iii) After solicitation of a number of sources, competition is determined inadequate. [[Page 24]] (2) The contracting agency shall comply with the following procedures for noncompetitive negotiations: (i) Establish a process to determine when noncompetitive negotiation will be used, (ii) Develop an adequate scope of work, evaluation factors and cost estimate as required in paragraph (a)(1) of this section, (iii) Conduct negotiations as required in paragraph (a)(4) of this section, and (iv) Submit the proposed contract and cost estimate to the FHWA for approval.