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New Development in Federal-Aid A/E Procurement Requirements

By: Nancy C. Smith, Brandon J. Davis
02/09/06

Congress recently changed the law that permitted State departments of transportation ("DOTs") and local agencies acting under State DOT supervision to use alternative procedures to the Brooks Act (40 U.S.C. Section 1101 et seq.) for awarding architectural and engineering ("A/E") services contracts for highway projects. Under the prior law, State DOTs and local agencies were permitted to use alternative procedures authorized by state law, without adversely affecting eligibility for federal-aid highway funding. As a result of this change, the DOTs and local agencies will need to modify their procedures to strictly conform to Brooks Act requirements, in order to ensure that their contracts are eligible for federal funding.

This revision to the procurement requirements became effective on November 30, 2005, when President Bush signed into law the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act, 2006 (the "FY 2006 Act") (see 119 Stat. 2396; Public Law 109-115). While the FY 2006 Act deals mainly with funding issues, Section 174 of the act amends 23 U.S.C. Section 112(b)(2) by striking language that allowed state and local transportation agencies to use "equivalent State qualifications-based requirements" in awarding A/E contracts, instead of the procedures found in the Brooks Act. In theory, this amendment should not result in a significant change in the criteria under which such procurements are evaluated or the process followed, since the state requirements were to be "equivalent" in the first place. For example, under the prior law, FHWA took the position that agencies could not consider cost or price-related factors in making the selection decision. This position has now been codified. Among other things, this means that agencies who have previously included cost-related provisions in their procurement documents (such as requiring caps on overhead rates and partner/principal salaries) may need to change such language, or at least to obtain FHWA’s concurrence that the language does not conflict with FHWA’s understanding of the statute.

This requirement applies to contracts for program management, construction management, feasibility studies, preliminary engineering, design, engineering, surveying, mapping, and architectural-related services on federal-aid projects where construction is to be performed by a DOT or under its supervision. It applies to all such contracts awarded after the effective date of the new law. Therefore, any state or local transportation agency that is currently engaged in a federal-aid A/E procurement needs to make sure that its selection procedures are in compliance with the Brooks Act. Also, each State should examine its statutes, regulations, manuals and guidelines to make sure they are in accord with the new federal policy and provide the necessary mechanisms to evaluate and award A/E contracts.

For more information, please contact Nancy Smith at (213) 612-7837 / nsmith@nossaman.com or Brandon Davis at (213) 612-7894 / bdavis@nossaman.com.

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