134.5 Consultant Contract Administration

A MoDOT employee will be assigned as the PM/CA for each contract, including contracts in which the services are for project management of a construction project or for contract administration. MoDOT's PM/CA is responsible for administering the contract and overseeing the consultant’s progress towards the provision of services required by the contract. Some of these responsibilities are:

1. Scheduling and attending progress meetings with the consultant and being involved in decisions leading to change orders or supplemental agreements.
2. Being familiar with the qualifications and responsibilities of the consultant’s staff.
3. Assuring that costs billed are consistent with the acceptability and performance of the consultant’s work.
4. Monitoring the consultant’s operations, as necessary, and adequately documenting contract performance (prior to final settlement of the contract) for later use.
5. Conducting interim technical and audit evaluations as deemed necessary during the performance of the consultant contract.
6. Completing performance evaluations in the Design Consultant Database at major milestones and at the completion of the contract. An evaluation is to be completed at least annually.
7. Notifying the Design Division, Financial Services and AI when a project is complete and finalized. The PM/CA should make arrangements with the Resident Engineer to be notified when construction is complete.

134.5.1 Invoicing

The consultant files a monthly invoice and progress report to the PM/CA. The invoice template found in Fig. 134.5.1.1 must be used for all consultant contracts. Prime consultant invoices must use Fig. 134.5.1.1. Sub-consultants who have a contract with the prime that is greater than $25,000 must either use Fig. 134.5.1.1 or provide all the information that is listed in this figure to be considered acceptable. Each invoice must be submitted with the necessary supporting documentation and must be numbered in sequential order and label the final invoice as FINAL. The invoice shall be based on the total incurred cost during the invoice period. Invoices should identify each task in the scope of work, as well as the employees and hours spent on each task during the billing period. Direct costs must also be shown by task. The MoDOT Consultant Invoice Checklist (Fig 134.5.1.2) can be used as tools to ensure all proper documentation is in place for each invoice in order for the invoice to be accepted and paid. Fig. 134.5.1.5 is available as an example of a filled-out invoice.

The PM/CA should make every effort to see that the consultant is paid in a timely manner, the goal being 30 days. Missouri law states that the consultant is entitled to interest if the invoice is not paid in 45 days. The 45-day period starts when all questions about the invoice have been addressed and agreed to by both parties.

The PM/CA uploads a copy of the invoice to Financial Services' Contractual Payments Library following the step-by-step instructions, which includes the PM/CA indicating the invoice as having been reviewed, thus approving it for payment. Fig. 134.2.2 and Fig. 134.2.4 are checklists to help PM/CAs with the paperwork process for Standard and On-call contracts, including invoicing.

The following metadata fields are required:

• Name (J#, invoice#, Consultant abbrev.)
• Job No. (include the J)
• Financial No. (if known)
• Agreement No. (eAgreements)
• Payee/Vendor
• Invoice Date
• Invoice Number
• Invoice Amount
• Final Invoice (if applicable)
• District/Division/Office
• Reviewed and Approved (checkbox)
• Reviewed and Approved By
• Activity Code
• Link to eAgreements (first invoice only)
• Payment Status (default to New Entry)
• Comment (if necessary).

The following are the most frequently used activity codes:

Activity	Description
R351	Conceptual Plans
R352	Surveying/Mapping
R354	Preliminary Plans
R356	Final Design Plans
R358	Final Construction Plans
R35A	Support – Build New Hwys & Bridges

If the contract encompasses more than one job number, or if there are separate invoices, each invoice will need to be uploaded separately and the partnering jobs listed in the comment section of the metadata. When the last invoice is submitted for payment, the final invoice checkbox should be checked. This notifies Financial Services that the contract is complete. (See EPG 134.5.3 Consultant Contract Close-Out).

If the consultant project/agreement has more than 4 jobs associated with it, the PM/CA will continue to submit the Consultant invoices to Financial Services electronically by utilizing the Contractual Payments system.

Design-Build (contractor) invoices and non-contractual invoices will continue to be submitted electronically by email to Financial Services at Contractual.Payments@modot.mo.gov. However the design-build consultant invoices should be submitted using the Contractual Payments Library. All other invoices should be submitted electronically by email to Financial Services at AP.Payments@modot.mo.gov.

If errors are found on the consultant invoice, the PM/CA should contact the consultant and request a corrected invoice. The PM/CA should never change an invoice. The invoice should be sent back to the consultant for corrects and they must re-date the invoice and re-submit to MoDOT. If the consultant makes an error and requests more reimbursement than allowed by the contract, the PM/CA may submit the invoice and authorize payment of an amount less than the invoice requests. The reasons for paying an amount different than the invoice requests must be clearly documented in the cover letter.

If the period of service in the contract has lapsed, a letter to extend the period of service signed by both MoDOT and the consultant must be completed prior to paying any invoices. For hourly-rate contracts the period of service is defined in the MOU not the Master Agreement.

Consultant invoices for projects administered by the Bridge Division should be submitted electronically by the consultant directly to BRInvoiceAdmin@modot.mo.gov and the Structural Liaison Engineer assigned to the project should be copied on the email.

Electronic payments to a consultant may be set up by submitting an “Electronic Funds Transfer” form. Information is available at MissouriBUYS.

134.5.1.1 Workforce Diversity Verification

The workforce diversity verification section of the template invoice (Fig. 134.5.1.1, Blank Consultant Invoice ) must be filled out. The verification summary should contain the project team’s diversity, not the company wide diversity. For reporting purposes, females and minorities are the only diversity categories that must be reported in the verification summary. The following groups are considered to be minorities: Black, Hispanic, Asian, American Indian, Native Hawaiian or Pacific Islander. The report is based on the hours worked by minorities and women during each invoicing period.

134.5.2 Supplemental Agreements

Supplemental agreements are used to add/delete work within the scope of services that was advertised in the RFQ. Supplemental agreements cannot be used to increase the scope of work outside the solicitation/RFQ or to increase overhead or fixed fee. For example, a no cost supplemental agreement can be executed to extend the period of service as outlined in the original consultant contract.

Each supplemental agreement must include new subconsultants, and modifications to the scope of services, new cost estimates and schedule or period of service adjustments as applicable.

Costs associated with these modifications to the scope of services may be covered by the unit costs included in the original contract or by a newly negotiated cost in the supplemental agreement. Direct costs and overhead costs for the services contained in the supplemental agreement should reflect the costs that will be in effect during the performance of the service.

Once it is determined that the scope of services needs modification, the PM/CA follows the same negotiation process for the supplemental agreement that is followed for new contracts through submission to the PSC, via the email group CODEPSCReview. Any modifications to the scope of services, whether it results in a change in cost or not, must be included in an approved supplemental agreement. If a DBE goal was established in the original contract it will continue to apply. The agreement must be executed prior to the consultant receiving authorization to proceed with the modified scope of services. Supplemental Agreements for extension of time, with no additional cost, are not required to be submitted through the PSC. The district or division director has the delegation of authority to sign the Supplemental Agreement if the total contract is below $100,000. If the combined original contract cost and the supplemental agreement cost are above $100,000, then a member of the Executive Committees must sign the supplemental agreement. The executed copy of the Supplemental Agreement must be submitted through CODEPSCReview.

When a supplemental agreement is necessary, additional funds to cover the added costs in the contract must be identified from the appropriate budget category and be approved as a necessary expenditure.

Supplemental agreements shall be sent to the assigned Liaison Engineers for “Review by Staff” in eAgreements.

DBE Concurrence must be obtained from Business Development and Compliance prior to sending a federally funded agreement to the consultant for execution. The PM/CA will include Business Development and Compliance (email group DBEConcurrence) as a “Reviewer”, along with the assigned Liaison Engineers, when processing the agreement for “Review by Staff” in eAgreements. Business Development and Compliance will respond to the email notification if any additional DBE information is needed - including, but not limited to, specific DBE details, such as name of DBE firm, DBE Goal, dollar amount of DBE participation, Exhibits such as Scope of Services, Fee Estimate, etc.

After receiving the DBE Concurrence from Business Development and Compliance, the contract may be executed. The contract information is submitted to the PSC via the email group CODEPSCReview using PSC Approval to Execute Supplemental Agreement, Fig. 134.5.2. After PSC approval, the PM/CA will execute the supplemental agreement. The supplemental agreement is executed electronically in DocuSign:

• Electronic Signatures – Signing agreements electronically in DocuSign will expedite the execution process. The PM/CA must add all recipients in the DocuSign site that need to sign and/or receive an electronic copy (see below) of the fully executed supplemental agreement.

The PM/CA must send an electronic copy of the fully executed supplemental agreement to various Central Office Divisions. For electronically executed agreements, this is done by cc:/ in DocuSign. The following are the Central Office Divisions that must be notified:

• Financial Services Division (email group Obligate with message “Obligate - please obligate funds for the fully executed agreement” and provide any specific funding details here, as applicable).
• Design Division (email group CODEPSCReview with message “CODEPSCReview - fully executed agreement for your records”).

Note: If federal funds are used, the PM/CA must wait for email notifications from the following Central Office Divisions before issuing Notice to Proceed to the consultant:

• Financial Services indicating the obligation of funds is complete
• Business Development and Compliance (BDC) indicating concurrence in DBE participation

If federal funds were used to finance the contract, Financial Services submits a copy of the executed contract to the FHWA Finance Section for approval. Federal funds will not be paid for charges to the contract prior to FHWA approval. Any supplemental agreements are also submitted to the FHWA after execution.

Notice to Proceed Letter

The PM/CA is responsible for sending a Notice to Proceed (NTP) Letter (Fig. 134.4.2) to the consultant. The NTP cannot be sent prior to:

• Receiving DBE concurrence from Business Development and Compliance.
• Execution of the contract
• Obligation of federal funds by Financial Services.

134.5.3 Consultant Contract Close-Out

To close out a consultant contract the PM/CA must notify Design, Business Development and Compliance and Financial Services that the last invoice is the FINAL invoice and no further payments will be processed. The PM/CA must change the Agreement Status to “Completed” in eAgreements to initiate the retention schedule of the document and to accurately track open/closed contracts. See EPG 134.5.1 Invoicing for information on invoicing and the appropriate email addresses to send the FINAL invoices. Contracts include a requirement for a three-year retention of records after the final voucher is submitted in FMIS by Financial Services.

Final Audit. MoDOT conducts a final audit to determine total allowable contract costs, unless the contract is on a firm, fixed-price basis. Allowable cost principles are identified based on the experience of MoDOT personnel in administering past contracts and in accordance with applicable requirements of 2 CFR 200.400, Federal Acquisition Regulation (FAR), and 23 CFR 172, Administration of Engineering and Design Related Service Contracts.

The PM/CA is responsible for notifying Design when the contract is substantially complete. The final audit may be conducted any time after the project is let; the consultant contract need not be completed for the final audit to be conducted.

Should MoDOT agree prior to contract execution that it is necessary for a consultant to purchase special equipment, materials, or property to accomplish the required services, MoDOT will establish a before and after value and will receive an appropriate credit for any residual values. This credit is passed on to FHWA.

134.5.4 Consultant Performance Appraisals

The MoDOT PM/CA must perform an Online Evaluation of the consultant’s performance under any engineering services contract with MoDOT at each project milestone and at a minimum, on an annual basis during the term of the consultant’s services provided by the contract. Input for the evaluation should be requested from other divisions that may have project experience with the company, such as the Environmental section, or Construction Division. MoDOT’s PM/CA also completes a final comprehensive evaluation of the consultant’s performance within 30 days after contract completion. The evaluation is included in the project file. MoDOT personnel complete another evaluation of the consultant’s performance within 30 days of completion of the construction phase of the project. The evaluation must contain written comments on how the evaluation was determined. All evaluation comments must be factual and not based upon personal opinion, i.e. all comments must be able to be backed up by actual facts.

Upon completing any evaluation, furnish a copy to the consultant prior to meeting with the district or division project manager to discuss the evaluation. These evaluations are included in MoDOT’s Design Consultant Database and are used during consideration of the consultant for future work assignments. The PM/CA is defined as the project manager, or other person who is responsible for reviewing and approving the consultant’s invoices.

134.5.5 Restitution for Errors and Omissions

At times, errors or omissions in the project design or in the information provided for the project may become evident during a project’s bidding or construction phases. When this occurs, the causes surrounding the errors or omissions are investigated to determine a final resolution, which may require financial restitution. A face-to-face meeting between the DE and the consultant will take place to discuss the situation.

The procedure for investigating errors or omissions is:

1. Contractor/RE initializes a change order with the reason code – CD (Consultant Design Error). The RE and PM from Construction and Design review the change order and develop recommendation for action and assessment of both direct and indirect costs.
2. The District Construction and Material Engineer and the District Engineer review and provide comments.
3. The District Engineer reviews and makes final district recommendations. Form is forwarded to the Construction Division.
4. The Construction Division Liaison Engineer, the Design Division Liaison Engineer and CCO jointly make the final decision regarding pursuit of reimbursement. The district is informed of the decision.
5. If the decision is to pursue recovery of costs, then CCO drafts a “Letter of Notice” for the District Engineer’s signature.
6. The District Engineer sends the Letter of Notice to the Financial Services Division – Accounts Receivable Section (FS A/R) requesting an invoice be created. A copy is to be sent to the Design Division.
7. Upon receipt of DE’s Letter of Notice to the design consultant, Financial Services Division will create an invoice for the claim and submit it directly to the design consultant with the Letter of Notice. The revenue source code of 1814-05 “Design Consultant Claims” will be used to track reimbursement by design consultants.
8. If the consultant does not respond by the “respond by date” in the Letter of Notice, then the Design Liaison Engineer presents the background information to senior management, who decides whether to begin legal proceedings to pursue reimbursement of costs. If legal proceedings are pursued, the Design Liaison Engineer notifies Financial Services Division – Accounts Receivable.

Should formal dispute resolution as detailed in EPG 134.6 Dispute Resolution be initiated during the above procedure, the following steps will ensure MoDOT receives payment:

1. The PM/CA, with the help of CCO, prepares and provides the FS Director with a letter from the State Design Engineer to the consultant indicating the Dispute Resolution Committee’s (DRC) decision and the dollar amount of restitution.
2. The FS Director prepares an invoice for the restitution payment and sends it to the consultant with the letter from the State Design Engineer. A copy of the letter and invoice is provided to the Design Division and the district. These documents indicate the payment is made to Department of Revenue – Credit State Road Fund and mailed to:

Missouri Department of Transportation

Financial Services

P.O. Box 270

Jefferson City, Mo. 65102

The FS Director will track the invoice to ensure payment is received from the consultant in a timely manner.

134.5.6 Incentive and Disincentive Program

MoDOT has instituted an incentive and disincentive program with the consulting industry to assure that consultants:

1. Deliver the most cost-efficient design that provides the right solution to the identified need (i.e., Practical Design)
2. Deliver quality plans
3. Deliver the roadway and bridge design plans on time as required in the contract
4. Prepare construction cost estimates that are within an acceptable range of the contract award amount.

The incentive and/or disincentives vary according to the listed category. This program will not be used on every MoDOT roadway and bridge design contract. The incentive and disincentives will be used in whole or in part on major projects that are critical to MoDOT accountability with the public. Fifty percent of the fixed fee is the maximum disincentive that can be incurred. When the district requests approval from the PSC chair to solicit consultant services, the approval will specify whether the contract will or will not include the incentive/disincentive program. Project specific incentives and disincentives will be noted in the contract agreement.

Cost-effective Design (Practical Design) and Quality Plans. The consultant’s performance on delivering the most cost-efficient design that provides the right solution for the identified need will become a part of the consultant performance evaluation. Quality of Plans will be based on the score for overall performance.

Evaluation scores must be considered on all future contract selections. Consultants who perform poorly or who do not deliver cost-effective designs will not be considered for future contracts until they demonstrate to MoDOT that significant changes have been made within their company to address the concerns. The PSC will monitor this performance and MoDOT staff will be kept informed on the status of any firms that are not being allowed to compete for projects.

Deliver Roadway and Bridge Design Plans on Time.

Right of Way Plans. The project manager should use the flowchart below to determine whether the incentives or disincentive are applicable based on the scheduled delivery date contained in the current contract or supplemental agreement. If changes are made by MoDOT that impact scheduling, the letting date may be re-negotiated .

Final Plans, Surveys, and Estimates. The project manager should use the flowchart below to determine whether the incentive or disincentive is applicable based on the scheduled delivery date contained in the current contract or supplemental agreement. If changes are made by MoDOT that impact scheduling, the letting date will be re-negotiated.

Accurate Cost Estimates are critical for MoDOT to be able to deliver the program promised to the public. Program estimates are published in the STIP and each district programs sufficient projects each year to spend every dollar allocated. Poor estimating causes MoDOT numerous problems at letting. Once the project budget has been set it is then the design consultant’s responsibility to design a good project that satisfies the purpose and need within that budget. The project manager should use the flowchart below to determine whether the consultant qualifies for an incentive or disincentive based on their project estimates.