In selecting a consultant to provide architectural and engineering services, can a public agency use the proposed price as part of the evaluation and selection process? In most cases, the answer is "no."
State Laws: All but a handful of states have a Qualifications Based Selection (QBS) law. Some of these state laws apply only to state agencies and not local governments, while others apply to both state and local agencies. Click here for a state-by-state list of QBS laws. In Washington State, RCW 39.80 applies to state and local agencies and prohibits the use of price as a selection criterion.
Federal Laws: At the federal level, federal contracts and state and local agency
projects funded with federal money are governed by the 1972 federal QBS
law, known as the Brooks Act.
What is QBS? Under Qualifications Based Selection, the public agency is required to select the most qualified firm, without the cost or proposed price being requested or being included as an evaluation criterion. The parties then enter into negotiations about the scope of work and cost. In the event that negotiations are unsuccessful, the public agency may then enter into negotiations with the second most highly qualified firm.
What disciplines are covered by QBS? Various state and federal laws define architectural and engineering services covered by QBS differently.
- Washington State: In Washington state, RCW 39.80 covers four disciplines under QBS: architecture, engineering, landscape architecture, and land surveying.
- Federal Brooks Act: The following is the list of disciplines covered under the Brook Act. It is more expansive than the list of covered disciplines by Washington state law:
- Licensing: Professional services of an architectural or engineering nature, as defined by State law, if applicable, which are required to be performed or approved by a person licensed, registered, or certified to provide such services as described in this paragraph;
- Related to Real Property: Professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and
- Typically Performed by: Such other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operation and maintenance manuals, and other related services.
- Federal Departments: Certain federal funding sources, such as the U.S. Department of Transportation [49 U.S.C § 5325(b)], augment the list of disciplines covered under the federal Brooks Act.
Practical tips:
- State Law: Review the requirements of your state law regarding Qualifications Based Selection and what disciplines are covered.
- Federal Law: If your project includes federal funds, the Brooks Act will apply. The particular funding agency may have other requirements that expand the list of what is covered by QBS.
- Select Based on Qualifications: Ensure that your solicitation document, typically a Request for Qualifications, does not include price as an evaluation criterion.
- Learn How to Negotiate: Because most government agencies are typically more comfortable just accepting the low bid, obtain proper training in how to negotiate the cost of architectural and engineering work.
Resources: The American Council of Engineering Companies (ACEC), a strong proponent of QBS laws, has a web page with some good resources describing the purpose and practice of QBS. Click here to visit their QBS resource page.
Mike Purdy's Public Contracting Blog© 2012 by Michael E. Purdy Associates, LLChttp://PublicContracting.blogspot.com
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