Difference between revisions of "LPA:136.4 Consultant Selection and Consultant Contract Management"

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m (136.6 Consultant Contracts moved to 136.4 Consultant Selection and Consultant Contract Management: Per Design, EPG 136 was generally re-written following thorough research and input from LPAs, consultants and FHWA.)
m (Per Design, EPG 136 was generally re-written following thorough research and input from LPAs, consultants and FHWA.)
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|colspan="2"|<center>'''Additional Information'''</center>
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|colspan="2"|<center>'''Figures'''</center>
 
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|[[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Fig. 136.6.1 Contract]]||[[media:136.6.2 Consultant Selection Criteria (Fig. 6-2) Nov 2011.doc|Fig. 136.6.2 Consultant Selection Criteria]]
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|[[media:Fig. 136.4.1.doc|Fig. 136.4.1, Engineering Services Contract ]]
 
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|[http://www.moga.mo.gov/statutes/C000-099/0080000291.HTM Missouri Revised Statutes Section 8.291]||[[media:136.6.4 Supplemental to Engg Services (Fig. 6-4).DOC|Fig. 136.6.4 Supplement Agreement to Engineering Services Contract]]
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|[[media:Fig. 136.4.2.doc|Fig. 136.4.2, Consultant Selection Criteria]]
 
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|[[media:136.6.5 Consultant Appraisal (Fig. 6-5).DOC|Fig. 136.6.5 Consultant Performance Appraisal Form]]||[[media:136.6.6 Common Unallowable (Fig. 6-6) Jan 10.doc|Fig. 136.6.6 Common Unallowable Costs]]
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|[[media:134.3.2.1.4 Allowable Profit.pdf|Fig. 136.4.3/134.3.2.1.4, Allowable Profit Curve as a % of Direct Salary Costs]]
 
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|[[media:136.6.7 Sample Solicitation Jan 19, 2012.doc|Fig. 136.6.7 Sample Solicitation]]||[[media:136.6.8 District Representative Engineering Services Contract Cover Letter.doc|Fig. 136.6.8 District Representative Engineering Services Contract Cover Letter]]
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|[[media:Fig. 136.4.4.doc|Fig. 136.4.4, Supplemental Agreement to Engineering Services contract]]
 
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|colspan="2" align="center"|[[media:136.6.9 Local Sponsor Engineering Services Contract Sample Cover Letter.doc|Fig. 136.6.9 Local Sponsor Engineering Services Contract Sample Cover Letter]]
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|[[media:136.4.5.doc|Fig. 136.4.5, Consultant Performance Appraisal Form]]
 
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|colspan="2" align="center"|[[:Category:134 Engineering Professional Services#Fixed Fee Review|Allowable Profit Curve as a Per Cent of Direct Salary Costs]]
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|[[media:136.4.6.doc|Fig. 136.4.6, Common Unallowable Costs]]
 
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|colspan="2" align="center"|[[media:136.6 Engineering Services Sample Invoice.xls|Engineering Services Sample Invoice]]
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|[[media:136.4.7.doc|Fig. 136.4.7, Sample Solicitation & Sample Scope of Services]]
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|-
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|[[media:Fig. 136.4.8.doc|136.4.8, District Representative ESC Cover Letter]]
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|-
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|[[media:136.4..9.doc|Fig. 136.4.9, Local Sponsor ESC Sample Cover Letter]]
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|-
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|[[media:136.4.10.doc|Fig. 136.4.10, Engineering Services Sample Invoice]]
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|-
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|[[media:136.4.11.doc|Fig. 136.4.11, Consultant Selection & ESC Submittal Checklist]]
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|-
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|[[media:Fig. 136.4.12.pdf|Fig. 136.4.12, QBS Process Flowchart]]
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|-
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|[[media:136.4.13.doc|Fig. 136.4.13, Consultant Services Q&A]]
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|-
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|[[media:Fig. 136.4.14.doc|Fig. 136.4.14, Checklist for reviewing Consultant Contracts]]
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|-
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|[[media:136.4.15.doc|Fig. 136.4.15, Conflict of Interest Disclosure Form]]
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|-
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|[[media:136.4.16.pdf|Fig. 136.4.16, Overhead Schedule Example]]
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|-
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|[[media:136.4.17.doc|Fig. 136.4.17, Example of an Engineering Services Invoice]]
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|-
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|[[media:Fig. 136.4.18.doc|Fig. 136.4.18, Checklist for Engineering Services Invoice]]
 
|}
 
|}
  
If the local agency is not adequately staffed to provide the necessary engineering, architectural, land surveying, right of way and related services (including utility negotiations), they may engage a consultant to provide professional services.  Under the Brooks Act, [http://www.fhwa.dot.gov/programadmin/121205_40usc.cfm 40 USC 1102], professional services means:
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==136.4.1 Introduction==
 +
If the LPA (local public agency) is not adequately staffed to provide the necessary engineering, architectural, land surveying, right of way and related services (including utility negotiations), they may hire a consultant to provide professional services.  Professional services are defined under the federal law, the Brooks Act, 40 USC 1102.  Please note that Right of Way Acquisition and Negotiations are NOT defined as a professional service and therefore the Brooks Act does not apply to those services.  For more information on Right of Way please refer to [[136.8 Local Public Agency Land Acquisition|EPG 136.8 Local Public Agency Land Acquisition]].
 +
 
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MoDOT has a website dedicated to the LPA Program.  Please see [http://www.modot.org/business/lpa/consultantinfo.htm Missouri’s Local Program – Consultant Info tab] for more LPA-Consultant information.
 +
 
 +
===136.4.1.1 Federal Law===
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The Brooks Act, [http://www.law.cornell.edu/uscode/text/40/subtitle-I 40 USC 1102], [http://cfr.vlex.com/vid/172-3-definitions-19726053 23 CFR 172.3]  (Public Law 92-582, 1972) required agencies to “promote open competition by advertising, ranking, selecting and negotiating contracts based on demonstrated competence and qualifications for the type of engineering and design services being procured, and at a fair and reasonable price.”  <u>''This requirement applies to all federally funded projects.''</u>  This is commonly referred to as Qualifications Based Selection or QBS, meaning a firm is chosen based on qualifications and not price.
 +
 
 +
===136.4.1.2 State Law===
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Commonly referred to as the “Mini-Brooks Act”, the State of Missouri, in [http://www.moga.mo.gov/STATUTES/C008.HTM sections 8.285 thru 8.291 RsMO], requires Qualification Based Selection (QBS) for all architectural, engineering and land surveying professional services and reflects the language contained in the federal legislation. <u>''This requirement applies to ALL projects in Missouri regardless if it contains federal funds or not.''</u> Keep in mind that the Federal Laws supersede the State Laws if the project has federal funding.
 +
 
 +
===136.4.1.3 Funding===
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Consultant selection, including execution of the contract, is a process done BEFORE any federal dollars are obligated to the project.  Therefore any dollars spent in this process are NOT eligible for federal reimbursement.
 +
 
 +
In Missouri, the same consultant can be hired to perform Preliminary Engineering (PE) and Construction Engineering (CE) work.  Please refer to [[136.3 Federal Aid Basics|EPG 136.3 Federal Aid Basics]] for more information on funding.
  
:* professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered or certified to provide the services described in this paragraph;
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====136.4.1.3.1 Preliminary Engineering (PE)====
 +
PE charges are permitted through the construction contract award.  Any engineering charges to the project after the construction contract award are considered construction engineering (CE) and will not be charged against the design portion of the project.  If a modification is made to the plans during construction, all funding for this will be CE funds not PE funds.
  
:* 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
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Right of way project cost estimates; title work, right of way plan development and legal description writing may be included in the same agreement with Design Services and are reimbursable as preliminary engineering (PE) expenses.  All other eligible right of way acquisition activities cannot begin until the A-Date has been approved and the LPA has been notified, any acquisition activities that occur before the A-Date will not be eligible for reimbursement.  See [[136.8 Local Public Agency Land Acquisition|EPG 136.8]] for more right of way information.
  
:* 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 operating and maintenance manuals and other related services.  
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====136.4.1.3.2 Preliminary Engineering Activities by Local Forces====
 +
PE activities can be performed in-house  by LPA staff.  Please see [[136.3 Federal Aid Basics|EPG 136.3 Federal Aid Basics]] for more details.
  
Federal law also recently expanded professional services stating “engineering and design related services are defined in [http://www.citizen.org/documents/23USC112.pdf 23 USC§112 (b)(2)(A)] and [http://www.fhwa.dot.gov/programadmin/23cfr172.cfm 23 CFR §172.3] to include program management, construction management, feasibility studies, preliminary engineering, design engineering, surveying, mapping or other related services. These other services may include professional engineering related services, or incidental services that may be performed by a professional engineer, or individuals working under their direction, who may logically or justifiably perform these services."
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====136.4.1.3.3 Construction Engineering/Construction Inspection (CE)====
 +
Construction Engineering can be performed by a consultant or can be done as in-house services if the LPA is staffed to do so.  If the CE is to be performed in-house please see [[136.3 Federal Aid Basics|EPG 136.3 Federal Aid Basics]] for more details.
  
The cost of the above professional services is eligible for federal participation provided that prior approval of the contracts by MoDOT is received. Federal participation in the cost of construction engineering is limited to 15% of the net federal participating construction costs, whether performed by consultant, in-house, or both for all contracts statewide. Construction engineering can be greater than 15% if requested by the local agency on a case-by-case basis prior to the award of the contract. Construction Inspection services may be included in the same agreement with design services. Preliminary engineering charges are permitted through the construction contract award stage. Charges after the award of the construction contract are considered to be construction engineering and cannot be charged against the design portion of the agreement. RW Acquisition Services shall be handled under a separate RW Services Agreement. This contract/agreement will be submitted at the same time the Request for Obligation of RW Funds (A-Date Request) is submitted.
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===136.4.1.4 Responsible Person in Charge===
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The LPA is required to have a person of responsible charge for every project. The hired consultant cannot be the person of responsible charge. Please see [[136.1 Introduction|EPG 136.1]] for more information.
  
Right of way project cost estimates, title work, right of way plan development and legal description writing may be included in the same agreement with Design Services and are reimbursable as preliminary engineering expenses. All other right of way acquisition activities eligible for reimbursement cannot be incurred or invoiced for reimbursement until the [[236.18 Local Public Agency Land Acquisition#236.18.2.4 Acquisition Authority (A-Date) is Required with Federal Funds Participation in Right of Way|A-Date has been approved and the LPA has been notified]].
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===136.4.1.5 Consultant Qualification===
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Effective January 1, 2013, a consultant must be “qualified” to perform engineering services on a federally funded project.   To become qualified the consultant will be required to do the following: 
  
On federal aid projects, right of way costs and incidental expenses are only reimbursable after MoDOT district staff reviews and approves the LPA personnel or the right of way acquisition contractor that will perform the right of way acquisition activities.
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:* Have a current Annual Financial Pre-Qualification with MoDOT
  
After execution by the local agency and consultant, three (3) copies of the contract are submitted to MoDOT for review and approval. The [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Fig. 136.6.1 standardized contract format]] developed by MoDOT is required.
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:* Step-by-step instructions for becoming pre-qualified and a list of pre-qualified consultants can be found on [http://contribute.modot.mo.gov/business/lpa/consultantinfo.htm MoDOT’s Local Program Website – Consultant Info].  
  
<div id="MoDOT’s External Civil Rights Division"></div>
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:* This annual financial pre-qualification is good for one year.  
MoDOT’s External Civil Rights Division may establish a Disadvantaged Business Enterprise (DBE) goal for all engineering services contracts. The sponsor will need the established DBE goal before a Request for Proposal (RFP) is sent out to prospective engineering consultants. The RFP must include the DBE Contract Provisions for Engineering Services Contracts (ESCs). The sponsor must first submit an estimate of anticipated activities that will take place during the design or inspection process. Examples include but are not limited to surveying, plan sheet development, design, geological studies, and borings. Estimated hours and rates for each activity are not required. In order to obtain MoDOT approval of the contract in these cases, the consultant must acquire the required DBE participation or supply sufficient evidence as to why the DBE goal was not met.
 
  
The local agency should include a letter stating the necessity for utilizing a consultant for the work. If the local agency proposes to engage a consultant who has not been previously utilized by the local agency for the particular type of work involved, the local agency should submit a brochure or other information which outlines the qualifications of the firm's employees and recent past experience in similar work. It is '''not''' permissible for a consultant to contract with both the local agency and the contractor on the same project.
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:* Have current E-Verify documents on file with MoDOT
  
If a local agency engages a consultant to conduct an environmental study, the consultant is required to fill out a disclosure statement specifying the consultant has no financial or other interest in the outcome of the project. Additionally, the local agency cannot engage the same consultant for the environmental document and the final design during one contract negotiation process. The same consultant may be used but the local agency must utilize their selection process for the later stages.
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:* The E-Verify documentation is good for one year.
  
All consultants receiving individual awards for $100,000 or more and all subrecipients must certify that the organization and its principals are not suspended or debarred. Each local agency may, but is not required to, check the Nonprocurement List. Copies may be obtained by purchasing a yearly subscription from the Superintendent of Documents, US Government Printing Office, Washington, DC 20402, or by calling the Government Printing Office Inquiry and Order Desk at (202) 783-3238. An [http://www.arnet.gov/epls electronic version] is available. The user will be required to record their name and organization for purposes of the Computer Matching and Privacy Act of 1988.
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:* Have taken the “basic” training course on Federal Aid Basics
  
All required [[Independent Assurance Samples and Tests|independent assurance samples and tests]] will be performed by MoDOT, so this work should not be included in consultant contracts. However, required project tests are the local agency's responsibility. Should the local agency not have the required staff to administer these project tests, a consultant testing firm can be obtained and costs will be eligible for federal reimbursement.
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:* A list of available training courses can be found on the LPA Website under [http://www.modot.org/business/lpa/cert_train.htm Training]. For more information on Training and Certification see [[136.2 Certification and Training |EPG 136.2 Certification and Training]].
  
===136.6.1 Subconsultants===
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The pre-qualification process complies with AASHTO Guidelines published in the Uniform Audit & Accounting Guide 2010 Edition, which will be incorporated into the Code of Federal  Regulations, Title 23 (23 CFR). This pre-qualification process ensures that Local Program projects are in compliance with state and federal regulations.
'''Subconsultant cost exceeding $25,000'''
 
  
If the consultant is using a subconsultant with a cost exceeding $25,000, then the subconsultant shall include [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|page 11 of Fig. 136.6.1, a detailed estimate of cost]] and an overhead rate breakdown.
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'''Not Pre-Qualified.''' Although the pre-qualification process is preferred, and will be required after December 31, 2012, consultants who wish to respond to an RFQ who are not pre-qualified can do so provided that they meet the following requirements:   
  
'''Subconsultant cost NOT exceeding $25,000'''
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:* Registered to do business in the state of Missouri
  
If the consultant is using a subconsultant with a cost that does not exceed $25,000, then a letter from the subconsultant shall be included that quotes the subconsultant’s cost shown in Attachment A of the contract.
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:* Participate in the Federal Work Authorization Program, E-Verify
  
===136.6.2 Solicitation and Selection Procedures===
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:* Audited overhead or overhead rate calculation in the required format, click here for the link to the sample format.
  
Local agencies must use competitive negotiation for the procurement of engineering and design-related services on every project involving federal-aid highway funds. The Brooks Act and 23 CFR 172.3 must be followed if the local agency is seeking federal reimbursement for these services.  The QBS process must include a public announcement, advertisement or other acceptable method that assures qualified in-state and out-of-state consultants are given a fair opportunity for consideration, which allows for a minimum two-week response time.  It is recommended the local agency use the MoDOT Consultant Resources website to post the public announcement or advertisement ([[media:136.6.7 Sample Solicitation Jan 19, 2012.doc|Fig. 136.6.7 Sample Solicitation]]).  The solicitation form should be submitted to the appropriate MoDOT district representative.  If the LPA wishes to use an alternative procedure to advertise and solicit qualifications for the RFQ, they must submit a written request with an advertising plan attached that complies with state and federal requirements. The advertisement plan must include advertisement of the availability in a major newspaper of general circulation.  The RFQ notice must be advertised at least one time allowing a minimum 14 calendar days prior to the due date.  The notice may be advertised multiple times if desired.  The advertisement plan should also identify and send the solicitation to organizations qualified to do specified work as well as professional societies and recognized DBE organizations.  The request must be approved by MODOT and FHWA prior to advertisement.
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:* Must be able to submit the Management Representation & Certification Form, click here to get form.
  
Local agencies must submit to MoDOT a description of procedures they use to evaluate and select consultants. When selecting a consultant, the local agency must use criteria listed in RSMo 8.289. If necessary, the local agencies can add criteria to the rating sheet, however, the criteria listed in [[media:136.6.2 Consultant Selection Criteria (Fig. 6-2) Nov 2011.doc|Fig. 136.6.2 Consultant Selection Criteria Guidance and Rating Sheet]] must be included in the consultant selection rating process.
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===136.4.1.6 Conflict of Interest===
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A conflict of interest occurs when a consultant has a financial or personal interest in a federally funded project. To avoid a potential conflict of interest, see [http://cfr.vlex.com/vid/1-33-conflicts-interest-19725476 23 CFR 1.33] for the Federal Law governing Conflict of Interest. To certify that no conflict of interest has taken place on any given project, the LPA and consultant must fill out the [[media:136.4.15.doc|Conflict of Interest Disclosure Form (Fig 136.4.15)]] and submit it to MoDOT along with the executed engineering services contract for each project.
  
To avoid conflict of interest, the local agency may not use a consultant-engineering firm on retainer unless it satisfactorily documents the engineer or the firm was not involved in the solicitation and selection of the firm. These criteria must meet minimum federal requirements and be in compliance with Missouri Revised Statutes Chapter 8 [http://www.moga.mo.gov/statutes/C000-099/0080000285.HTM Sections 8.285] through [http://www.moga.mo.gov/statutes/C000-099/0080000291.HTM 8.291, RSMo].  The local agency may use the criteria specified in federal and state regulations or may develop its own written procedures provided a qualification-based selection procedure commensurate with state policy is used. Local agencies must prepare a written description of the scope of the proposed services. According to state law, the agency must list three highly qualified firms and then select the firm best qualified to perform the desired services. The agency may evaluate current statements of qualifications and performance data of firms on file or solicit statements from other firms interested in the project. It is not necessary for the agency to interview all the firms. Price shall not be used as a factor in the analysis and selection of a firm. <u>Price quotations shall not be requested for consideration prior to selecting a firm.</u> If a local agency cannot negotiate a reasonable price with the consultant selected, it can cease negotiations and select a different firm. The local agency must provide written documentation of the selection procedures used and the names of the three or more firms considered when a contract is submitted for approval. If the local agency chooses to cite the state statute, then the following wording can be used:
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====136.4.1.6.1 Using Consultants for Preliminary Project Documents====
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There are situations when conflicts of interest commonly arise during LPA projects.
  
:"We have considered the following three firms under procedures outlined in Missouri Law (RSMo Sections 8.285 to 8.291)."
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=====136.4.1.6.1.1 Development of Preliminary Project Documents=====
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Preliminary project documents may include, but are not limited to, grant and TIP applications, projects scopes, filling out the programming data form and project estimates.
  
The LPA must verify that firms submitting letters of interest to the solicitation participate in the Federal Work Authorization Program, E-Verify.  The state statute requires firms to include an Affidavit of Compliance and a copy of the E-Verify MOU with their letter of interest. Refer to [http://www.moga.mo.gov/statutes/c200-299/2850000530.htm RSMo 285.530 Affidavit and E-Verify MOU Requirement] and the [http://ago.mo.gov/faqs/unauthorized-alien-workers.htm State Code of Regulation Attorney General’s Office Code of State Regulation Affidavit of Compliance (15 CSR 60-15.020)].
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If the LPA needs professional consulting services to develop preliminary project documents, the LPA must execute an engineering services contract.  The contract must be at fair market value, and the cost of selecting and negotiating a consultant contract is not eligible for federal funding. 
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A consultant providing preliminary project deliverables must complete all preliminary activities and receive payment in full from the LPA in order to be eligible to bid on PE or CE services for the project. If the consultant provides preliminary project documents as an in-house consultant or engineer on retainer, all  invoices for these services must be paid in full to be to be considered for a PE or CE contract
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The LPA must include all consultant developed preliminary project documents in the Request for Qualifications (RFQ). <u>If a consultant develops the RFQ or participates in the consultant selection process, regardless of payment, that firm will not be eligible for the next phase of the project.</u>
  
Failure to follow the state and federal provisions outlined above could jeopardize federal funding.
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=====136.4.1.6.1.2 Contracts with LPAs and Contractors=====
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A consultant cannot work for both the LPA and the contractor on the same project as this is seen as a conflict of interest.  However, the consultant can provide surveying and staking on the project for the contractor but it is limited to that task alone.
  
===136.6.3 Scope of Services===
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===136.4.1.7 Suspension/Debarment===
 +
All consultants receiving individual awards for $100,000 or more and all subrecipients/subconsultants must certify that the organization and its principles are not suspended or debarred.  Each LPA may, but is not required to, check the Nonprocurement List.  Copies of the list may be obtained by purchasing a yearly subscription from the Superintendent of Documents, US Government Printing Office, Washington, DC 20402, or by calling the Government Printing Office Inquiry and Order Desk at (202) 783-3238.  An electronic version is available, as well.  The user will be required to record their name and organization for purposes of the [https://www.epls.gov/epls/search.do?page=A&status=current&agency=69#A Computer Matching and Privacy Act of 1988].
  
The local agency should determine the scope of services when issuing an invitation for consultants to submit proposals. The scope of services should be detailed and project specific. In addition to the customary information contained in a scope of services, it is suggested that the following items be included:
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===136.4.1.8 Frequently Asked Questions (FAQ)===
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A list of FAQs regarding consultant issues can be found in [[media:136.4.13.doc|Fig 136.4.13]]. FHWA also has a [http://www.fhwa.dot.gov/programadmin/172qa.cfm webpage that lists FAQs].
  
'''1.''' The proposed design parameters to be used on the project. MoDOT design guidelines are
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==136.4.2 Solicitation & Selection Process==
required for projects on MoDOT right of way
 
  
'''2.''' When applicable, an investigation of Federal Emergency Management Agency's requirements;
+
When an LPA needs consultant services, specific processes for soliciting and selecting a consultant must be followed.  LPA’s must use Qualifications Based Selection(QBS) for the procurement of engineering and design related services.  This is mandated by both the Federal and State law.  See [[#136.4.1.2 State Law|EPG 136.4.1.2]] and [[#136.4.1.3 Funding|EPG 136.4.1.3]] for the applicable laws.  If an LPA does not follow the solicitation and selection process, federal funds could be jeopardized.
  
'''3.''' Provision for 404 Permits, archaeological investigations and other environmental matters as judged necessary; and
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===136.4.2.1 Qualification Based Selection (QBS) Flowchart===
 +
[[image:Fig. 136.4.12.jpg|center|800px]]
  
'''4.''' Degree of construction inspection services to be included in the engineering service contract, if any.
+
A step-by-step process for following the QBS process is outlined below.
  
===136.6.4 Basis of Payment===
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===136.4.2.2 Step 1 – Scope of Services===
 +
The LPA should determine a project specific scope of services. Sample scopes of service can be found on the last sheet of [[media:Fig. 136.4.1.doc|Fig. 136.4.1]].  These samples can be used in the Request for Qualifications (RFQ) form.  Keep in mind that the Engineering Services Contract cannot contain any scope that was not listed in the Advertisement/RFQ, so it is important to develop the scope of services for the RFQ that will cover all necessary work items for the project. For instance, if the LPA wishes for the consultant to design the plans and perform construction inspection, the RFQ needs to spell out both of those items, otherwise the LPA will have to post another RFQ to cover the work items not covered in the original RFQ. 
  
The following methods may be used as the basis of payment in a contract:
+
In general, the RFQ scopes should be broadly written but the scope of services contained in the Engineering Services Contract should be detailed to cover both the LPA and consultant.
  
'''1.''' Actual cost plus fixed fee; and
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===136.4.2.3 Step 2 - Creating an RFQ Document===
 +
An LPA must create an RFQ to solicit professional services.  MoDOT provides a solicitation form, or an LPA may use its own solicitation with prior approval.  [[media:136.4.7.doc|Fig. 136.4.7]] provides a sample solicitation/RFQ form. 
  
'''2.''' Specific rates of pay (for emergency situations only).
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If the LPA wishes not to use the sample solicitation they may do so provided that that solicitation contains the following:
  
The most common basis of payment is actual cost plus fixed fee. Federal regulations prohibit the use of cost plus a percentage of cost and percentage of construction cost methods of compensation.
+
:* a statement requiring the consultant to submit E-verify Affidavit of Compliance, E-Verify MOU and a Statement of Qualifications (SOQ) along with the letter of interest
  
Subcontractors should be shown in the contract and costs passed through to the local agency at actual cost. Prompt payment of subcontractors is required.
+
:*  a statement saying the DBE firms must be listed in the [http://www.modot.mo.gov/business/contractor_resources/External_Civil_Rights/mrcc.htm MRCC directory] to be considered
  
Retainage is no longer designated by MoDOT as a routine part of the contract. Payment may be withheld on any particular work item that has not been completed in accordance with the contract. This can include work incidental to the work item, and required documentation directly related to the work.
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:* the selection rating criteria along with the weighted values/points associated with each selection criteria
  
===136.6.5 Evaluations===
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:* DBE goal
  
Before a contract can be approved, it will be necessary to perform and document a technical evaluation to determine that the estimated man-hours are reasonable. In addition, if the total contract cost exceeds $100,000, an audit evaluation will need to be performed prior to contract execution, to determine that cost aspects are reasonable and that the cost estimate and overhead rates contain only items allowable under federal guidelines. Only those contracts that fall within the guidelines established for pre-negotiation audits by Audit and Investigations, MoDOT, will need to have such an audit evaluation.
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:* Detailed Scope of Consultant Services needed
  
===136.6.6 Contract Submittal===
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:* Deadline date when the letters of interest are to be submitted
The contract format illustrated in [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Fig. 136.6.1 Contract]] is required. Following is a checklist of items that should be included in or submitted with the contract:
 
  
'''1.''' Local agency's statement regarding the necessity for utilizing a consultant for the work;
+
:* Contact information
  
'''2.''' Procedures used to evaluate and select consultants and a listing of firms considered;
+
:* A statement indicating where to get a copy of any preliminary project documents, if applicable.
  
'''3.''' Qualifications and experience resume' for consultant, if consultant has not been previously utilized by the local agency;
+
Each RFQ must include a consultant selection criteria with the weighted percentages of each category.  [http://www.moga.mo.gov/statutes/C000-099/0080000289.HTM RsMO 8.289] lists the criteria that should be used.  MoDOT’s sample solicitation includes these criteria, with the exception of proximity/familiarity.  This criteria has been eliminated because the criteria is unclear and often misused.  An LPA may use alternate criteria with rating values only with prior MoDOT approval.  '''Each RFQ must be submitted to MoDOT and reviewed for a DBE Goal prior to advertisement.'''
  
'''4.''' A method for modifying the contract (extra work or modified work or any change in the
+
===136.4.2.4 Step 3 - Advertising the RFQ Solicitation===
contract fee requires the approval of a supplemental agreement by MoDOT and [http://www.fhwa.dot.gov/ FHWA] prior to performing the work or incurring the added cost) (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article II of Fig. 136.6.1 Contract]]);
+
Each solicitation must be advertised.  MoDOT suggests LPAs use the sample solicitation form from the EPG, however, an LPA may also use an alternative advertising plan with prior MoDOT approval.  The RFQ must be advertised at least one time allowing a minimum of 14 calendar days prior to the due date, but it may be advertised multiple times if desired.
  
'''5.''' A statement that a local agency employee will be responsible for and in direct control of the construction contract even though a consultant may perform inspection work (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article III-G of Fig. 136.6.1 Contract]]);
+
In addition, each RFQ must be reviewed by MoDOT’s External Civil Rights group for Disadvantage Business Enterprise (DBE) opportunities. MoDOT will notify the LPA, so that the DBE goal can be inserted into the RFQ.  Possible activities that offer opportunities for DBE firms include but are not limited to surveying, plan sheet development, design, geotech services and borings.  Only firms listed in the [http://www.modot.mo.gov/business/contractor_resources/External_Civil_Rights/mrcc.htm MRCC Directory] are eligible to meet DBE goals. If the DBE goal is not met, the the consultant must document that a Good Faith Effort was made to meet the DBE goal.
  
'''6.''' A time reference after which all work under the contract will be considered complete (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article IV of Fig. 136.6.1 Contract]]);
+
====136.4.2.4.1 Advertising on MoDOT’s Site====
 +
The sample RFQ solicitation form ([[media:136.4.7.doc|Fig 136.4.7]]) should be filled out and submitted to the appropriate [http://www.modot.org/business/manuals/LPAContacts.htm MoDOT district representative].
  
'''7.''' A statement that specifies the basis for allowability of costs will be [http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=da8a7f17da98d6b134d8a79319f16f6a&rgn=div5&view=text&node=23:1.0.1.2.3&idno=23 23 CFR, Part 172] and [http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=da8a7f17da98d6b134d8a79319f16f6a&rgn=div5&view=text&node=48:1.0.1.5.30&idno=48 48 CFR, Part 31] (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article VI_F of Fig. 136.6.1 Contract]]);
+
====136.4.2.4.2 Advertising Using an Alternative Method====
 +
An LPA does not have to advertise on the MoDOT website, and when an LPA wishes to use another method to advertise the consultant solicitation, the LPA must submit a written request with an advertising plan to MoDOT. This request to advertise using an alternative method must be approved by MoDOT and FHWA prior to advertising the RFQ. The plan must comply with state and federal laws and include:
  
'''8.''' Give residual credit for specialized equipment purchased for the contract (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article VI-H of Fig. 136.6.1 Contract]]);
+
:* Advertisement in a major newspaper of general circulation
  
'''9.''' The following covenant against contingent fees in the contract (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article VII of Fig. 136.6.1 Contract]]):
+
:* Plan to disseminate information to organizations qualified to do specified work. These organizations may include professional societies and recognized DBE organizations.
  
:"The consultant warrants that he has not employed or retained any company or person, other than a bona fide employee working for the consultant, to solicit or secure this contract, and that he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration, contingent upon or resulting from the award or making of this contract. For breach or violation of this warranty, the local agency shall have the right to annul this contract without liability, or, in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee plus reasonable attorney's fees."
+
===136.4.2.5 Step 4 - Response to the RFQ===
 +
 +
Interested firms who wish to respond to the RFQ can submit a letter of interest. If the firm has no experience with the LPA process, they must submit a Statement of Qualifications (SOQ), also.  The SOQ can be in the form of a brochure or other format which outlines the qualification of the firm’s employees and recent past experience in similar work.  (See [http://www.moga.mo.gov/statutes/C000-099/0080000289.HTM Missouri Revised State Statue Chapter 8 Section 8.289].)
  
'''10.''' An agreement for the retention of records for a period of three years after the consultant receives payment of their final invoice from the local agency (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article X of Fig. 136.6.1 Contract]]);
+
Missouri State Statues require that firms include an Affidavit of Compliance and a copy of the E-Verify MOU with each submittal.  (See [http://www.moga.mo.gov/statutes/C200-299/2850000530.HTM RsMo 285.530] and [http://www.sos.mo.gov/adrules/csr/current/15csr/15c60-15.pdf 15 CSR 60-15.020].)
  
'''11.''' An agreement to allow MoDOT and FHWA and other authorized federal agencies to examine
 
records pertaining to the project and costs (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article X of Fig. 136.6.1 Contract]]);
 
  
'''12.''' Ownership of engineering documents by local agency (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article XI of Fig. 136.6.1 Contract]]);
+
===136.4.2.6 Step 5 - Selection of Consultant===
 +
When the RFQ expires, the LPA evaluates the letters of interest or statement of qualifications. The LPA rates all firms based on the criteria that was outlined in the RFQ. Price quotations shall not be requested or used for consideration prior to selecting a firm. Price can only be determined AFTER the consultant is selected.  
  
'''13.''' Procedure for settling disputes arising under the contract (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article XIII of Fig. 136.6.1 Contract]]);
+
MoDOT/FHWA can attend the selection/rating meeting and provide guidance on the selection process but cannot give opinions on selection of the firm.  [http://www.moga.mo.gov/statutes/C000-099/0080000289.HTM RsMO 8.289] (except proximity/familiarity) and [[media:Fig. 136.4.2.doc|Fig. 136.4.2 Consultant Selection Criteria Guidance and Rating Sheet]] must be used in the rating and selection of the consultant.
  
'''14.''' A nondiscrimination provision (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Article XVII of Fig. 136.6.1 Contract]]);
+
According to State Law ([http://www.moga.mo.gov/statutes/C000-099/0080000291.HTM RsMO 8.291]), the LPA must list a minimum of 3 highly qualified firms and then select the firm best qualified to perform the work, based on the rating criteria outlined in the RFQ, <u>and not based on price quotations</u>. It is not necessary for the LPA to interview the firms, but should be considered. When less than three responses are received, it is suggested that the RFQ be re-advertised at least once.  If the LPA still receives less than three responses, the LPA must then determine whether or not this is a suitable number of responses based on the nature and size of the project. The LPA should also consider whether there was some aspect of the RFQ that was overly restrictive or otherwise had an adverse impact on the completion of the project. If the LPA still wants to move forward, then they should document that the RFQ requirements were not restrictive, it was adequately publicized and that the one or two firms who responded were capable of performing the tasks outlined for the project.)
  
'''15.''' A cost breakdown as follows (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Attachment A of Fig. 136.6.1 Contract]]):
+
===136.4.2.7 Step 6 - Consultant Contract Negotiations===
 +
Price is negotiated after a consultant is selected and notified.  This is the only time in the selection process when price can be considered. [[media:136.4.6.doc|Fig. 136.4.6]] lists a number of common Unallowable Costs that are ineligible federal reimbursement.  '''Additional scope beyond what was advertised in the RFQ cannot be negotiated into the contract.'''
  
:a. man-hours by pay grade and general work function;
+
The selected firm will need to use the overhead rate that was approved by MoDOT in that firms prequalification process with MoDOT.  If the firm elects to voluntarily reduce their overhead rate the following language must be incorporated into the contract:
 +
 +
:“The Company has voluntarily reduced its overhead rate to ___%. This rate will be used on all billings.  Upon completion of these services outlined under this Agreement the final payment for these items will be based on accounting records of the Consultant incurred during the period of the Agreement.  The LPA reserves the right to require the actual audited overhead rates be used if those rates are less than the voluntarily reduced rate noted previously.”
  
:b. basic rates of pay;
+
====136.4.2.7.1 Fixed Fee Review====
 +
The fixed fee is based on the complexity of the project, risk to the consultant, and the amount of sub consultant management and is the profit to the consultant.  Fixed fees are calculations are based upon direct salary costs.  The percentage of the fixed fee to the direct salary costs should not exceed the MoDOT maximum allowable profit curve shown in [[media:134.3.2.1.4 Allowable Profit.pdf|Fig 136.4.3]].  However, MoDOT does not allow a profit of more than 15 percent.
  
:c. overhead rates, projected for the period of performance;
+
Fixed fees may not be calculated for direct expenses. Sub consultants are a direct expense to the prime consultant. Therefore, sub consultant expenses may not be included in the fixed fee calculations for the prime consultant.  It should be noted that the “fixed fee” is fixed and will be paid in full even if the consultant does not use all of the hours in the contract. Care should be taken not to overestimate man-hours.
  
:d. other direct costs (travel, subsistence, etc.);
+
====136.4.2.7.2 Basis of Payment====
 +
The Engineering Services Contract in the EPG Fig 136.4.1 is an actual cost contract.  This means that all cost estimates must be based on actual wages and overhead.  Federal Regulations ([http://nawctsd.navair.navy.mil/Resources/Library/Acqguide/far-policies.htm FAR Part 16.102]) prohibit the use of cost plus a percentage of cost or percentage of construction costs as a method of compensation. The following methods maybe used as the basis of payment in a contract:
  
:e. fixed fee (actual cost);
+
:* Actual Cost Plus Fixed Fee
  
:f. subcontracts;
+
:* Specific rates of pay (for emergency situations only)
  
:g. contract ceiling;
+
Each Subcontractor or subconsultant must be identified in the contract.  Subcontractor expenses should also be calculated based upon actual costs.  . Prompt payment of subconsultants is required per [https://www.acquisition.gov/far/current/html/Subpart%2032_9.html FAR Subpart 32.9].
  
'''16.''' A breakdown of the consultant's overhead rates (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Attachment B of Fig. 136.6.1 Contract]]) (Refer to [[media:136.6.6 Common Unallowable (Fig. 6-6) Jan 10.doc|Fig. 136.6.6 Common Unallowable Costs]].);
+
Retainage is not allowed as a routine part of the contract i.e. blanket retainage is prohibited. Payment may be withheld on any particular work item that has not been completed in accordance with the contract. This can include work incidental to the work item, and required documentation directly related to the work.
  
'''17.''' Debarment certifications as an attachment to the contract (samples are attached in the
+
Direct costs must be estimated using IRS mileage rates and per diem rates for Missouri. These rates can be found on the following web pages. 
standardized contract) (Refer to [[media:136.6.1 Contract (Fig. 6-1) August 2011.doc|Attachments C and D of Fig. 136.6.1 Contract]]);
+
Mileage, subsistence and lodging must follow federal per diem guidelines. 
 +
:* [http://www.irs.gov/newsroom/article/0,,id=240903,00.html IRS Mileage Rate]
  
'''18.''' When the project is on MoDOT right of way, the Engineering Services Contract (ESC) shall indicate that the design must meet the requirements specified in the Engineering Policy Guide.
+
:* [http://www.gsa.gov/portal/category/100120 FY 2012 Per Diem Rates for Missouri]
  
This checklist will help to ensure that all necessary documentation related to the project is
+
====136.4.2.7.3 Subconsultants====
completed in a timely manner.
+
The use of subconsultants is allowed provided that each firm is identified in the engineering services contract.  DBE firms should be listed under Article II, and other sub consultants should be listed in Article IX Subletting, Assignment or Transfer.  The use of 2<sup>nd</sup> and 3<sup>rd</sup> Tier subconsultants is not allowed.
 +
 
 +
=====136.4.2.7.3.1 Subconsultant cost exceeding $25,000=====
 +
If the consultant is using a subconsultant with a cost exceeding $25,000, then the subconsultant shall include Attachment A of [[media:Fig. 136.4.1.doc|Fig 136.4.1]], a detailed estimate of cost and an overhead rate breakdown.  [[media:136.4.6.doc|Fig. 136.4.6]] lists common unallowable costs.
 +
 
 +
If the subconsultant is not pre-qualified with MoDOT then the firm shall also include their Management Representation and Certification Form (found on [http://contribute.modot.mo.gov/business/lpa/consultantinfo.htm MoDOT’s website].  Each subconsultant in this category must showits overhead in the required format.  [[media:136.4.16.pdf|Fig. 136.4.16]] provides an example Overhead Schedule. The prime consultant is responsible for ensuring that all subconsultants comply with state and federal regulations, such as E-Verify, and are registered to do business in Missouri.
 +
 
 +
=====136.4.2.7.3.2 Subconsultant cost NOT exceeding $25,000=====
 +
If the consultant is using a subconsultant with a cost that DOES NOT exceed $25,000 then a letter quote from the subconsultant shall be submitted with the engineering service contract.  The letter should quote the subconsultant’s cost shown in Attachment A of the contract ([[media:Fig. 136.4.1.doc|Fig 136.4.1]]).
 +
 
 +
====136.4.2.7.4 Ceasing Negotiation====
 +
If the LPA cannot negotiate a reasonable price with the consultant selected, the LPA can cease negotiations and begin negotiations with the next most qualified firm. After the LPA has ceased negotiations with the selected firm and have started negotiations with the next most qualified firm, the LPA cannot go back to the first firm and start another round of negotiations; this is looked upon as price shopping and is unallowable. See [http://www.fhwa.dot.gov/programadmin/consultant.cfm FHWA Consultant Services webpage] for more information.
 +
 
 +
===136.4.2.8 Step 7 - Consultant Contract Submittal to MoDOT===
 +
The contract format illustrated in [[media:Fig. 136.4.1.doc|Fig. 136.4.1]] is required.  The LPA must submit the contract to MoDOT for review and approval along with the cover letter found in [[media:136.4..9.doc|Fig. 136.4.9]].  For a complete list of items required to be submitted along with the consultant contract, see [[media:136.4.11.doc|Fig. 136.4.11]].  Also see [[media:Fig. 136.4.14.doc|Fig. 136.4.14]] to view a checklist that MoDOT will use when reviewing the consultant contract.  The LPA should also use this checklist prior to submitting to MoDOT to ensure the contract is complete.
 +
 
 +
===136.4.2.9 MoDOT Review of Consultant Contract===
 +
Each consultant contract will be reviewed by MoDOT staff for reasonableness in man-hours, overhead etc.  See [[media:Fig. 136.4.14.doc|Fig. 136.4.14]] for a checklist for reviewing a consultant contract.  MoDOT’s Audits and Investigations Division must review any contract with costs exceeding $100,000.  After the review is complete, the division will send a letter to the district representative that will list any items that need to be corrected prior to contract execution.  Those items include, but are not limited to, math errors, contract language and costs do not match exhibits, exclusion of an audit clause, overhead rates are different than information MoDOT has on file.  <u>No work shall begin until the PE funds have been obligated by FHWA and MoDOT has given the LPA notice to proceed.  Any funds spent prior to PE Obligation will not be reimbursable.</u>
 +
 
 +
===136.4.2.10 PE Funding Obligation===
 +
After MoDOT has reviewed the consultant contract and has found it to be reasonable, MoDOT will request authorization of funds from FHWA for Preliminary  Engineering (PE), when these expenses are allowable.  FHWA will obligate the funds and MoDOT will notify the LPA that the funds have been obligated and give the notice to proceed.  <u>No work shall begin until the PE funds have been obligated by FHWA and MoDOT has given the LPA notice to proceed.  Any funds spent prior to PE Obligation will not be reimbursable.</u>
 +
 
 +
===136.4.2.11 CE Funding Obligation===
 +
Some consultant contracts contain both preliminary engineering work (PE) and construction engineering/inspection (CE) work.  If this is the case, the PE dollars will be obligated first, then all PE work will need to be finished prior to the CE dollars being obligated. No PE funds can be incurred after the CE funds have been obligated. 
 +
 
 +
Other consultant contracts may only contain CE work.  If this is case, CE funds will be obligated with the construction dollars.  This obligation takes place after the plans and all supporting documents have been reviewed and approved and Authority to Advertise has been given to the LPA.  <u>No work shall begin until the CE funds have been obligated by FHWA and MoDOT has given the LPA notice to proceed.  Any funds spent prior to CE Obligation will not be reimbursable.</u>
 +
 
 +
<u>In either case, the consultant contract must be executed and then approved by MoDOT prior to requesting CE funding obligation.</u>
 +
 
 +
==136.4.3 Consultant Contract Management==
 +
 
 +
===136.4.3.1 Payments/Invoicing===
 +
The LPA must submit invoices for reimbursement of costs incurred as the work progresses.  The invoices may not be submitted more than once every two weeks.  Progress invoices must be submitted monthly for invoices equal to or greater than $10,000.  The final invoice must be submitted within 30 days of final acceptance.  The LPA may use either of the following two methods of seeking progress payments:
 +
 
 +
:* The LPA pays the contractor/consultant for work performed and then submits a progress invoice for reimbursement.
 +
 
 +
:* The LPA prepares the pay estimate for work performed and monies due to the contractor/consultant and submits the invoice to MoDOT.  If the LPA adopts this method, it must develop cash management procedures to ensure payment is made to the contractor/consultant within '''two (2)''' business days of receipt of funds from MoDOT.    Failure to disburse the funds promptly will result in a violation of federal cash management provisions and may result in an '''interest penalty''' assessment against the funds.
 +
 
 +
Whichever method above is used, the state will expedite reimbursement to the LPA. It is estimated that the average length of time from invoice submittal to receipt of federal reimbursement will be about 20 working days. 
 +
 
 +
LPAs cannot withhold or make payments to a contractor or consultant contingent upon reimbursement of progress invoices.  Refer to [[136.3 Federal Aid Basics#136.3.15.1 Progress Invoices|EGP 136.3.15.1]] for more information. 
 +
 
 +
'''Reimbursement will not be made for any work complete outside of the period of service as defined in the consultant contract.'''
 +
 
 +
'''Invoice Detail.''' The invoice template found in [[media:136.4.10.doc|Fig. 136.4.10]] MUST be used.  Each invoice must be submitted with the necessary supporting documentation and must be numbered in sequential order and label the final invoice as FINAL.  An example invoice can be found in [[Fig. 136.4.17]].  This invoice shows example information to help customers fill out the document.
 +
 
 +
The invoice shall be based on the total incurred cost during the invoice period, minus any no non-participating costs incurred.  Invoices should identify each task in the scope of work, as well as the employees and hours spent on each task during the invoice period.  Direct costs should also be shown by task. 
 +
 
 +
Each invoice MUST show the total DBE payments for each DBE subcontractor and the DBE% met to date.
 +
 
 +
[[media:Fig. 136.4.18.doc|Fig. 136.4.18]] provides a checklist to aid in filling out the invoice.  The checklist includes all items that are necessary to be on the invoice or submitted as supporting documentation in order for the invoice to be accepted and paid.
 +
 
 +
===136.4.3.2 Supplement Agreements===
 +
Supplemental agreements, as shown in [[media:Fig. 136.4.4.doc|Fig. 136.4.4]], are to be used to add/delete work within the scope of services that was advertised in the RFQ.  Supplemental agreements cannot be used to increase scope outside the 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.
 +
 
 +
The LPA or consultant will develop the supplemental agreement.  Each supplemental must include an additional DBE requirements, new subconsultants, changes to the scope of services, new cost estimates and schedule or period of service adjustments as applicable.   
 +
 
 +
The supplemental agreement must be executed and submitted to MoDOT for approval.  MoDOT will also review each supplemental agreement for additional DBE opportunities and to ensure there are no negative effects on ability of the consultants to achieve the DBE goal.
 +
 
 +
The LPA can get a verbal acceptance from MoDOT to start the changed/additional work before the paperwork is finished and the additional funds are obligated, but no invoice reflecting the new monies shall be submitted until the additional funds are obligated.
 +
 
 +
===136.4.3.3 Consultant Performance Appraisals===
 +
The LPA, the consultant and MoDOT should review and rate the consultant’s performance.  All parties should agree upon the final ratings.  These final ratings can be used as backup documentation for future consultant selection ratings.  The consultant performance appraisal form can be found in [[media:Fig. 136.4.5.doc|Fig. 136.4.5]].
 +
 
 +
==136.4.4 Key Submittals/Requirements==
 +
 
 +
{| border="1" class="wikitable" style="margin: 1em auto 1em auto" style="text-align:center"
 +
|+
 +
! style="background:#BEBEBE" |Task/Submittal!! style="background:#BEBEBE" |LPA Responsibility !! style="background:#BEBEBE" |MoDOT Responsibility!! style="background:#BEBEBE" |MoDOT Timeframe
 +
|-
 +
|RFQ/Advertisement||Develop & Submit to MoDOT||Review/Provide DBE Goal|| RFQ to be posted for 14 days minimum
 +
|-
 +
|Selection of Consultant|| Rate each consultant based on criteria in the RFQ.|| Attend rating/selection meeting but cannot give opinions on selection||Selection to occur after the 14 day advertisement period lapses.
 +
|-
 +
|Contract Negotiation||Negotiate with consultant|| n/a || n/a
 +
|-
 +
|Contract Submittal||Submit to MoDOT along with filled out checklist||Review and send to FHWA for PE obligation|| -
 +
|-
 +
|Supplemental Agreement|| Prepare?|| Review and send to FHWA for obligation|| -
 +
|-
 +
|Performance Appraisal of Consultant||LPA/Consultant to attend final appraisal meeting||MoDOT to attend final appraisal meeting || -
 +
|}
 +
 +
  
===136.6.7 Supplemental Agreements===
 
  
The local agency reserves the right to change the scope of services in the contract. Such changes may include additional task, removal of task or changes to the tasks in the scope of services due to unforeseen conditions on the project. In this event, a supplemental to the agreement shall be executed and submitted for the approval of MoDOT prior to performing the additional or changed work or incurring any additional cost. Any changes in compensation will be covered in the supplement.
 
  
'''No work is to be initiated until MoDOT has notified the local agency to proceed with the activities contained in the supplemental agreement.''' A [[media:136.6.4 Supplemental to Engg Services (Fig. 6-4).DOC|sample supplemental agreement]] is available.
 
  
Include the original fee in the supplement, as well as the revised fee. It is required to describe the additional services when submitting for approval.  No changes in the fixed fee portion of a cost plus fixed fee contract will be approved in a supplemental agreement unless it is determined that the scope of work has changed significantly. The External Civil Rights Division will need to review the supplemental agreement’s anticipated activities to determine the DBE goal prior to execution of the agreement.
 
[[image:136.6.8 Mar 2011.jpg|right|375px|thumb|'''<center>A contractor'''</center>]]
 
  
===136.6.8 Consultant Performance Appraisal===
 
  
Local agencies with the assistance of MoDOT and the contractor are requested to complete the
 
[[media:136.6.5 Consultant Appraisal (Fig. 6-5).DOC|Consultant Performance Appraisal]] after project completion. If any questions arise concerning the Consultant Performance Appraisal, the local agency should contact the [http://www.modot.mo.gov/ MoDOT district representative] for assistance.
 
  
[[Category:136 Local Public Agency (LPA) Policy|136.06]]
+
[[Category:136 Local Public Agency (LPA) Policy|136.04]]

Revision as of 12:43, 23 April 2012

Figures
Fig. 136.4.1, Engineering Services Contract
Fig. 136.4.2, Consultant Selection Criteria
Fig. 136.4.3/134.3.2.1.4, Allowable Profit Curve as a % of Direct Salary Costs
Fig. 136.4.4, Supplemental Agreement to Engineering Services contract
Fig. 136.4.5, Consultant Performance Appraisal Form
Fig. 136.4.6, Common Unallowable Costs
Fig. 136.4.7, Sample Solicitation & Sample Scope of Services
136.4.8, District Representative ESC Cover Letter
Fig. 136.4.9, Local Sponsor ESC Sample Cover Letter
Fig. 136.4.10, Engineering Services Sample Invoice
Fig. 136.4.11, Consultant Selection & ESC Submittal Checklist
Fig. 136.4.12, QBS Process Flowchart
Fig. 136.4.13, Consultant Services Q&A
Fig. 136.4.14, Checklist for reviewing Consultant Contracts
Fig. 136.4.15, Conflict of Interest Disclosure Form
Fig. 136.4.16, Overhead Schedule Example
Fig. 136.4.17, Example of an Engineering Services Invoice
Fig. 136.4.18, Checklist for Engineering Services Invoice

Contents

136.4.1 Introduction

If the LPA (local public agency) is not adequately staffed to provide the necessary engineering, architectural, land surveying, right of way and related services (including utility negotiations), they may hire a consultant to provide professional services. Professional services are defined under the federal law, the Brooks Act, 40 USC 1102. Please note that Right of Way Acquisition and Negotiations are NOT defined as a professional service and therefore the Brooks Act does not apply to those services. For more information on Right of Way please refer to EPG 136.8 Local Public Agency Land Acquisition.

MoDOT has a website dedicated to the LPA Program. Please see Missouri’s Local Program – Consultant Info tab for more LPA-Consultant information.

136.4.1.1 Federal Law

The Brooks Act, 40 USC 1102, 23 CFR 172.3 (Public Law 92-582, 1972) required agencies to “promote open competition by advertising, ranking, selecting and negotiating contracts based on demonstrated competence and qualifications for the type of engineering and design services being procured, and at a fair and reasonable price.” This requirement applies to all federally funded projects. This is commonly referred to as Qualifications Based Selection or QBS, meaning a firm is chosen based on qualifications and not price.

136.4.1.2 State Law

Commonly referred to as the “Mini-Brooks Act”, the State of Missouri, in sections 8.285 thru 8.291 RsMO, requires Qualification Based Selection (QBS) for all architectural, engineering and land surveying professional services and reflects the language contained in the federal legislation. This requirement applies to ALL projects in Missouri regardless if it contains federal funds or not. Keep in mind that the Federal Laws supersede the State Laws if the project has federal funding.

136.4.1.3 Funding

Consultant selection, including execution of the contract, is a process done BEFORE any federal dollars are obligated to the project. Therefore any dollars spent in this process are NOT eligible for federal reimbursement.

In Missouri, the same consultant can be hired to perform Preliminary Engineering (PE) and Construction Engineering (CE) work. Please refer to EPG 136.3 Federal Aid Basics for more information on funding.

136.4.1.3.1 Preliminary Engineering (PE)

PE charges are permitted through the construction contract award. Any engineering charges to the project after the construction contract award are considered construction engineering (CE) and will not be charged against the design portion of the project. If a modification is made to the plans during construction, all funding for this will be CE funds not PE funds.

Right of way project cost estimates; title work, right of way plan development and legal description writing may be included in the same agreement with Design Services and are reimbursable as preliminary engineering (PE) expenses. All other eligible right of way acquisition activities cannot begin until the A-Date has been approved and the LPA has been notified, any acquisition activities that occur before the A-Date will not be eligible for reimbursement. See EPG 136.8 for more right of way information.

136.4.1.3.2 Preliminary Engineering Activities by Local Forces

PE activities can be performed in-house by LPA staff. Please see EPG 136.3 Federal Aid Basics for more details.

136.4.1.3.3 Construction Engineering/Construction Inspection (CE)

Construction Engineering can be performed by a consultant or can be done as in-house services if the LPA is staffed to do so. If the CE is to be performed in-house please see EPG 136.3 Federal Aid Basics for more details.

136.4.1.4 Responsible Person in Charge

The LPA is required to have a person of responsible charge for every project. The hired consultant cannot be the person of responsible charge. Please see EPG 136.1 for more information.

136.4.1.5 Consultant Qualification

Effective January 1, 2013, a consultant must be “qualified” to perform engineering services on a federally funded project. To become qualified the consultant will be required to do the following:

  • Have a current Annual Financial Pre-Qualification with MoDOT
  • This annual financial pre-qualification is good for one year.
  • Have current E-Verify documents on file with MoDOT
  • The E-Verify documentation is good for one year.
  • Have taken the “basic” training course on Federal Aid Basics

The pre-qualification process complies with AASHTO Guidelines published in the Uniform Audit & Accounting Guide 2010 Edition, which will be incorporated into the Code of Federal Regulations, Title 23 (23 CFR). This pre-qualification process ensures that Local Program projects are in compliance with state and federal regulations.

Not Pre-Qualified. Although the pre-qualification process is preferred, and will be required after December 31, 2012, consultants who wish to respond to an RFQ who are not pre-qualified can do so provided that they meet the following requirements:

  • Registered to do business in the state of Missouri
  • Participate in the Federal Work Authorization Program, E-Verify
  • Audited overhead or overhead rate calculation in the required format, click here for the link to the sample format.
  • Must be able to submit the Management Representation & Certification Form, click here to get form.

136.4.1.6 Conflict of Interest

A conflict of interest occurs when a consultant has a financial or personal interest in a federally funded project. To avoid a potential conflict of interest, see 23 CFR 1.33 for the Federal Law governing Conflict of Interest. To certify that no conflict of interest has taken place on any given project, the LPA and consultant must fill out the Conflict of Interest Disclosure Form (Fig 136.4.15) and submit it to MoDOT along with the executed engineering services contract for each project.

136.4.1.6.1 Using Consultants for Preliminary Project Documents

There are situations when conflicts of interest commonly arise during LPA projects.

136.4.1.6.1.1 Development of Preliminary Project Documents

Preliminary project documents may include, but are not limited to, grant and TIP applications, projects scopes, filling out the programming data form and project estimates.

If the LPA needs professional consulting services to develop preliminary project documents, the LPA must execute an engineering services contract. The contract must be at fair market value, and the cost of selecting and negotiating a consultant contract is not eligible for federal funding.

A consultant providing preliminary project deliverables must complete all preliminary activities and receive payment in full from the LPA in order to be eligible to bid on PE or CE services for the project. If the consultant provides preliminary project documents as an in-house consultant or engineer on retainer, all invoices for these services must be paid in full to be to be considered for a PE or CE contract

The LPA must include all consultant developed preliminary project documents in the Request for Qualifications (RFQ). If a consultant develops the RFQ or participates in the consultant selection process, regardless of payment, that firm will not be eligible for the next phase of the project.

136.4.1.6.1.2 Contracts with LPAs and Contractors

A consultant cannot work for both the LPA and the contractor on the same project as this is seen as a conflict of interest. However, the consultant can provide surveying and staking on the project for the contractor but it is limited to that task alone.

136.4.1.7 Suspension/Debarment

All consultants receiving individual awards for $100,000 or more and all subrecipients/subconsultants must certify that the organization and its principles are not suspended or debarred. Each LPA may, but is not required to, check the Nonprocurement List. Copies of the list may be obtained by purchasing a yearly subscription from the Superintendent of Documents, US Government Printing Office, Washington, DC 20402, or by calling the Government Printing Office Inquiry and Order Desk at (202) 783-3238. An electronic version is available, as well. The user will be required to record their name and organization for purposes of the Computer Matching and Privacy Act of 1988.

136.4.1.8 Frequently Asked Questions (FAQ)

A list of FAQs regarding consultant issues can be found in Fig 136.4.13. FHWA also has a webpage that lists FAQs.

136.4.2 Solicitation & Selection Process

When an LPA needs consultant services, specific processes for soliciting and selecting a consultant must be followed. LPA’s must use Qualifications Based Selection(QBS) for the procurement of engineering and design related services. This is mandated by both the Federal and State law. See EPG 136.4.1.2 and EPG 136.4.1.3 for the applicable laws. If an LPA does not follow the solicitation and selection process, federal funds could be jeopardized.

136.4.2.1 Qualification Based Selection (QBS) Flowchart

Fig. 136.4.12.jpg

A step-by-step process for following the QBS process is outlined below.

136.4.2.2 Step 1 – Scope of Services

The LPA should determine a project specific scope of services. Sample scopes of service can be found on the last sheet of Fig. 136.4.1. These samples can be used in the Request for Qualifications (RFQ) form. Keep in mind that the Engineering Services Contract cannot contain any scope that was not listed in the Advertisement/RFQ, so it is important to develop the scope of services for the RFQ that will cover all necessary work items for the project. For instance, if the LPA wishes for the consultant to design the plans and perform construction inspection, the RFQ needs to spell out both of those items, otherwise the LPA will have to post another RFQ to cover the work items not covered in the original RFQ.

In general, the RFQ scopes should be broadly written but the scope of services contained in the Engineering Services Contract should be detailed to cover both the LPA and consultant.

136.4.2.3 Step 2 - Creating an RFQ Document

An LPA must create an RFQ to solicit professional services. MoDOT provides a solicitation form, or an LPA may use its own solicitation with prior approval. Fig. 136.4.7 provides a sample solicitation/RFQ form.

If the LPA wishes not to use the sample solicitation they may do so provided that that solicitation contains the following:

  • a statement requiring the consultant to submit E-verify Affidavit of Compliance, E-Verify MOU and a Statement of Qualifications (SOQ) along with the letter of interest
  • a statement saying the DBE firms must be listed in the MRCC directory to be considered
  • the selection rating criteria along with the weighted values/points associated with each selection criteria
  • DBE goal
  • Detailed Scope of Consultant Services needed
  • Deadline date when the letters of interest are to be submitted
  • Contact information
  • A statement indicating where to get a copy of any preliminary project documents, if applicable.

Each RFQ must include a consultant selection criteria with the weighted percentages of each category. RsMO 8.289 lists the criteria that should be used. MoDOT’s sample solicitation includes these criteria, with the exception of proximity/familiarity. This criteria has been eliminated because the criteria is unclear and often misused. An LPA may use alternate criteria with rating values only with prior MoDOT approval. Each RFQ must be submitted to MoDOT and reviewed for a DBE Goal prior to advertisement.

136.4.2.4 Step 3 - Advertising the RFQ Solicitation

Each solicitation must be advertised. MoDOT suggests LPAs use the sample solicitation form from the EPG, however, an LPA may also use an alternative advertising plan with prior MoDOT approval. The RFQ must be advertised at least one time allowing a minimum of 14 calendar days prior to the due date, but it may be advertised multiple times if desired.

In addition, each RFQ must be reviewed by MoDOT’s External Civil Rights group for Disadvantage Business Enterprise (DBE) opportunities. MoDOT will notify the LPA, so that the DBE goal can be inserted into the RFQ. Possible activities that offer opportunities for DBE firms include but are not limited to surveying, plan sheet development, design, geotech services and borings. Only firms listed in the MRCC Directory are eligible to meet DBE goals. If the DBE goal is not met, the the consultant must document that a Good Faith Effort was made to meet the DBE goal.

136.4.2.4.1 Advertising on MoDOT’s Site

The sample RFQ solicitation form (Fig 136.4.7) should be filled out and submitted to the appropriate MoDOT district representative.

136.4.2.4.2 Advertising Using an Alternative Method

An LPA does not have to advertise on the MoDOT website, and when an LPA wishes to use another method to advertise the consultant solicitation, the LPA must submit a written request with an advertising plan to MoDOT. This request to advertise using an alternative method must be approved by MoDOT and FHWA prior to advertising the RFQ. The plan must comply with state and federal laws and include:

  • Advertisement in a major newspaper of general circulation
  • Plan to disseminate information to organizations qualified to do specified work. These organizations may include professional societies and recognized DBE organizations.

136.4.2.5 Step 4 - Response to the RFQ

Interested firms who wish to respond to the RFQ can submit a letter of interest. If the firm has no experience with the LPA process, they must submit a Statement of Qualifications (SOQ), also. The SOQ can be in the form of a brochure or other format which outlines the qualification of the firm’s employees and recent past experience in similar work. (See Missouri Revised State Statue Chapter 8 Section 8.289.)

Missouri State Statues require that firms include an Affidavit of Compliance and a copy of the E-Verify MOU with each submittal. (See RsMo 285.530 and 15 CSR 60-15.020.)


136.4.2.6 Step 5 - Selection of Consultant

When the RFQ expires, the LPA evaluates the letters of interest or statement of qualifications. The LPA rates all firms based on the criteria that was outlined in the RFQ. Price quotations shall not be requested or used for consideration prior to selecting a firm. Price can only be determined AFTER the consultant is selected.

MoDOT/FHWA can attend the selection/rating meeting and provide guidance on the selection process but cannot give opinions on selection of the firm. RsMO 8.289 (except proximity/familiarity) and Fig. 136.4.2 Consultant Selection Criteria Guidance and Rating Sheet must be used in the rating and selection of the consultant.

According to State Law (RsMO 8.291), the LPA must list a minimum of 3 highly qualified firms and then select the firm best qualified to perform the work, based on the rating criteria outlined in the RFQ, and not based on price quotations. It is not necessary for the LPA to interview the firms, but should be considered. When less than three responses are received, it is suggested that the RFQ be re-advertised at least once. If the LPA still receives less than three responses, the LPA must then determine whether or not this is a suitable number of responses based on the nature and size of the project. The LPA should also consider whether there was some aspect of the RFQ that was overly restrictive or otherwise had an adverse impact on the completion of the project. If the LPA still wants to move forward, then they should document that the RFQ requirements were not restrictive, it was adequately publicized and that the one or two firms who responded were capable of performing the tasks outlined for the project.)

136.4.2.7 Step 6 - Consultant Contract Negotiations

Price is negotiated after a consultant is selected and notified. This is the only time in the selection process when price can be considered. Fig. 136.4.6 lists a number of common Unallowable Costs that are ineligible federal reimbursement. Additional scope beyond what was advertised in the RFQ cannot be negotiated into the contract.

The selected firm will need to use the overhead rate that was approved by MoDOT in that firms prequalification process with MoDOT. If the firm elects to voluntarily reduce their overhead rate the following language must be incorporated into the contract:

“The Company has voluntarily reduced its overhead rate to ___%. This rate will be used on all billings. Upon completion of these services outlined under this Agreement the final payment for these items will be based on accounting records of the Consultant incurred during the period of the Agreement. The LPA reserves the right to require the actual audited overhead rates be used if those rates are less than the voluntarily reduced rate noted previously.”

136.4.2.7.1 Fixed Fee Review

The fixed fee is based on the complexity of the project, risk to the consultant, and the amount of sub consultant management and is the profit to the consultant. Fixed fees are calculations are based upon direct salary costs. The percentage of the fixed fee to the direct salary costs should not exceed the MoDOT maximum allowable profit curve shown in Fig 136.4.3. However, MoDOT does not allow a profit of more than 15 percent.

Fixed fees may not be calculated for direct expenses. Sub consultants are a direct expense to the prime consultant. Therefore, sub consultant expenses may not be included in the fixed fee calculations for the prime consultant. It should be noted that the “fixed fee” is fixed and will be paid in full even if the consultant does not use all of the hours in the contract. Care should be taken not to overestimate man-hours.

136.4.2.7.2 Basis of Payment

The Engineering Services Contract in the EPG Fig 136.4.1 is an actual cost contract. This means that all cost estimates must be based on actual wages and overhead. Federal Regulations (FAR Part 16.102) prohibit the use of cost plus a percentage of cost or percentage of construction costs as a method of compensation. The following methods maybe used as the basis of payment in a contract:

  • Actual Cost Plus Fixed Fee
  • Specific rates of pay (for emergency situations only)

Each Subcontractor or subconsultant must be identified in the contract. Subcontractor expenses should also be calculated based upon actual costs. . Prompt payment of subconsultants is required per FAR Subpart 32.9.

Retainage is not allowed as a routine part of the contract i.e. blanket retainage is prohibited. Payment may be withheld on any particular work item that has not been completed in accordance with the contract. This can include work incidental to the work item, and required documentation directly related to the work.

Direct costs must be estimated using IRS mileage rates and per diem rates for Missouri. These rates can be found on the following web pages. Mileage, subsistence and lodging must follow federal per diem guidelines.

136.4.2.7.3 Subconsultants

The use of subconsultants is allowed provided that each firm is identified in the engineering services contract. DBE firms should be listed under Article II, and other sub consultants should be listed in Article IX Subletting, Assignment or Transfer. The use of 2nd and 3rd Tier subconsultants is not allowed.

136.4.2.7.3.1 Subconsultant cost exceeding $25,000

If the consultant is using a subconsultant with a cost exceeding $25,000, then the subconsultant shall include Attachment A of Fig 136.4.1, a detailed estimate of cost and an overhead rate breakdown. Fig. 136.4.6 lists common unallowable costs.

If the subconsultant is not pre-qualified with MoDOT then the firm shall also include their Management Representation and Certification Form (found on MoDOT’s website. Each subconsultant in this category must showits overhead in the required format. Fig. 136.4.16 provides an example Overhead Schedule. The prime consultant is responsible for ensuring that all subconsultants comply with state and federal regulations, such as E-Verify, and are registered to do business in Missouri.

136.4.2.7.3.2 Subconsultant cost NOT exceeding $25,000

If the consultant is using a subconsultant with a cost that DOES NOT exceed $25,000 then a letter quote from the subconsultant shall be submitted with the engineering service contract. The letter should quote the subconsultant’s cost shown in Attachment A of the contract (Fig 136.4.1).

136.4.2.7.4 Ceasing Negotiation

If the LPA cannot negotiate a reasonable price with the consultant selected, the LPA can cease negotiations and begin negotiations with the next most qualified firm. After the LPA has ceased negotiations with the selected firm and have started negotiations with the next most qualified firm, the LPA cannot go back to the first firm and start another round of negotiations; this is looked upon as price shopping and is unallowable. See FHWA Consultant Services webpage for more information.

136.4.2.8 Step 7 - Consultant Contract Submittal to MoDOT

The contract format illustrated in Fig. 136.4.1 is required. The LPA must submit the contract to MoDOT for review and approval along with the cover letter found in Fig. 136.4.9. For a complete list of items required to be submitted along with the consultant contract, see Fig. 136.4.11. Also see Fig. 136.4.14 to view a checklist that MoDOT will use when reviewing the consultant contract. The LPA should also use this checklist prior to submitting to MoDOT to ensure the contract is complete.

136.4.2.9 MoDOT Review of Consultant Contract

Each consultant contract will be reviewed by MoDOT staff for reasonableness in man-hours, overhead etc. See Fig. 136.4.14 for a checklist for reviewing a consultant contract. MoDOT’s Audits and Investigations Division must review any contract with costs exceeding $100,000. After the review is complete, the division will send a letter to the district representative that will list any items that need to be corrected prior to contract execution. Those items include, but are not limited to, math errors, contract language and costs do not match exhibits, exclusion of an audit clause, overhead rates are different than information MoDOT has on file. No work shall begin until the PE funds have been obligated by FHWA and MoDOT has given the LPA notice to proceed. Any funds spent prior to PE Obligation will not be reimbursable.

136.4.2.10 PE Funding Obligation

After MoDOT has reviewed the consultant contract and has found it to be reasonable, MoDOT will request authorization of funds from FHWA for Preliminary Engineering (PE), when these expenses are allowable. FHWA will obligate the funds and MoDOT will notify the LPA that the funds have been obligated and give the notice to proceed. No work shall begin until the PE funds have been obligated by FHWA and MoDOT has given the LPA notice to proceed. Any funds spent prior to PE Obligation will not be reimbursable.

136.4.2.11 CE Funding Obligation

Some consultant contracts contain both preliminary engineering work (PE) and construction engineering/inspection (CE) work. If this is the case, the PE dollars will be obligated first, then all PE work will need to be finished prior to the CE dollars being obligated. No PE funds can be incurred after the CE funds have been obligated.

Other consultant contracts may only contain CE work. If this is case, CE funds will be obligated with the construction dollars. This obligation takes place after the plans and all supporting documents have been reviewed and approved and Authority to Advertise has been given to the LPA. No work shall begin until the CE funds have been obligated by FHWA and MoDOT has given the LPA notice to proceed. Any funds spent prior to CE Obligation will not be reimbursable.

In either case, the consultant contract must be executed and then approved by MoDOT prior to requesting CE funding obligation.

136.4.3 Consultant Contract Management

136.4.3.1 Payments/Invoicing

The LPA must submit invoices for reimbursement of costs incurred as the work progresses. The invoices may not be submitted more than once every two weeks. Progress invoices must be submitted monthly for invoices equal to or greater than $10,000. The final invoice must be submitted within 30 days of final acceptance. The LPA may use either of the following two methods of seeking progress payments:

  • The LPA pays the contractor/consultant for work performed and then submits a progress invoice for reimbursement.
  • The LPA prepares the pay estimate for work performed and monies due to the contractor/consultant and submits the invoice to MoDOT. If the LPA adopts this method, it must develop cash management procedures to ensure payment is made to the contractor/consultant within two (2) business days of receipt of funds from MoDOT. Failure to disburse the funds promptly will result in a violation of federal cash management provisions and may result in an interest penalty assessment against the funds.

Whichever method above is used, the state will expedite reimbursement to the LPA. It is estimated that the average length of time from invoice submittal to receipt of federal reimbursement will be about 20 working days.

LPAs cannot withhold or make payments to a contractor or consultant contingent upon reimbursement of progress invoices. Refer to EGP 136.3.15.1 for more information.

Reimbursement will not be made for any work complete outside of the period of service as defined in the consultant contract.

Invoice Detail. The invoice template found in Fig. 136.4.10 MUST be used. Each invoice must be submitted with the necessary supporting documentation and must be numbered in sequential order and label the final invoice as FINAL. An example invoice can be found in Fig. 136.4.17. This invoice shows example information to help customers fill out the document.

The invoice shall be based on the total incurred cost during the invoice period, minus any no non-participating costs incurred. Invoices should identify each task in the scope of work, as well as the employees and hours spent on each task during the invoice period. Direct costs should also be shown by task.

Each invoice MUST show the total DBE payments for each DBE subcontractor and the DBE% met to date.

Fig. 136.4.18 provides a checklist to aid in filling out the invoice. The checklist includes all items that are necessary to be on the invoice or submitted as supporting documentation in order for the invoice to be accepted and paid.

136.4.3.2 Supplement Agreements

Supplemental agreements, as shown in Fig. 136.4.4, are to be used to add/delete work within the scope of services that was advertised in the RFQ. Supplemental agreements cannot be used to increase scope outside the 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.

The LPA or consultant will develop the supplemental agreement. Each supplemental must include an additional DBE requirements, new subconsultants, changes to the scope of services, new cost estimates and schedule or period of service adjustments as applicable.

The supplemental agreement must be executed and submitted to MoDOT for approval. MoDOT will also review each supplemental agreement for additional DBE opportunities and to ensure there are no negative effects on ability of the consultants to achieve the DBE goal.

The LPA can get a verbal acceptance from MoDOT to start the changed/additional work before the paperwork is finished and the additional funds are obligated, but no invoice reflecting the new monies shall be submitted until the additional funds are obligated.

136.4.3.3 Consultant Performance Appraisals

The LPA, the consultant and MoDOT should review and rate the consultant’s performance. All parties should agree upon the final ratings. These final ratings can be used as backup documentation for future consultant selection ratings. The consultant performance appraisal form can be found in Fig. 136.4.5.

136.4.4 Key Submittals/Requirements

Task/Submittal LPA Responsibility MoDOT Responsibility MoDOT Timeframe
RFQ/Advertisement Develop & Submit to MoDOT Review/Provide DBE Goal RFQ to be posted for 14 days minimum
Selection of Consultant Rate each consultant based on criteria in the RFQ. Attend rating/selection meeting but cannot give opinions on selection Selection to occur after the 14 day advertisement period lapses.
Contract Negotiation Negotiate with consultant n/a n/a
Contract Submittal Submit to MoDOT along with filled out checklist Review and send to FHWA for PE obligation -
Supplemental Agreement Prepare? Review and send to FHWA for obligation -
Performance Appraisal of Consultant LPA/Consultant to attend final appraisal meeting MoDOT to attend final appraisal meeting -