[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR172.5]

[Page 20-21]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 172_ADMINISTRATION OF ENGINEERING AND DESIGN RELATED SERVICE 
CONTRACTS--Table of Contents
 
Sec. 172.5  Methods of procurement.

    (a) Procurement. The procurement of Federal-aid highway contracts 
for engineering and design related services shall be evaluated and 
ranked by the contracting agency using one of the following procedures:
    (1) Competitive negotiation. Contracting agencies shall use 
competitive negotiation for the procurement of engineering and design 
related services when Federal-aid highway funds are involved in the 
contract. These contracts shall use qualifications-based selection 
procedures in the same manner as a contract for architectural and 
engineering services is negotiated under title IX of the Federal 
Property and Administrative Services Act of 1949 (40 U.S.C. 541-544) or 
equivalent State qualifications-based requirements. The proposal 
solicitation (project, task, or service) process shall be by public 
announcement, advertisement, or any other method that assures qualified 
in-State and out-of-State consultants are given a fair opportunity to be 
considered for award of the contract. Price shall not be used as a 
factor in the analysis and selection phase. Alternatively, a formal 
procedure adopted by State Statute enacted into law prior to June 9, 
1998 is also permitted under paragraph (a)(4) of this section.
    (2) Small purchases. Small purchase procedures are those relatively 
simple and informal procurement methods where an adequate number of 
qualified sources are reviewed and the total contract costs do not 
exceed the simplified acquisition threshold fixed in 41 U.S.C. 403(11). 
Contract requirements should not be broken down into smaller components 
merely to permit the use of small purchase requirements. States and 
subrecipients of States may use the State's small purchase procedures 
for the procurement of engineering and design related services provided 
the total contract costs do not exceed the

[[Page 21]]

simplified acquisition threshold fixed in 41 U.S.C. 403(11).
    (3) Noncompetitive negotiation. Noncompetitive negotiation may be 
used to procure engineering and design related services on Federal-aid 
participating contracts when it is not feasible to award the contract 
using competitive negotiation, equivalent State qualifications-based 
procedures, or small purchase procedures. Contracting agencies shall 
submit justification and receive approval from the FHWA before using 
this form of contracting. 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;
    (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 to be inadequate.
    (4) State statutory procedures. Contracting agencies may procure 
engineering and design related services using an alternate selection 
procedure established in State statute enacted into law before June 9, 
1998.
    (b) Disadvantaged Business Enterprise (DBE) program. The contracting 
agency shall give consideration to DBE consultants in the procurement of 
engineering and design related service contracts subject to 23 U.S.C. 
112(b)(2) in accordance with 49 CFR part 26.
    (c) Compensation. The cost plus a percentage of cost and percentage 
of construction cost methods of compensation shall not be used.