Memorandum

City of Lawrence

City Manager’s Office

TO:	David L. Corliss, City Manager
FROM:	Diane Stoddard, Assistant City Manager
CC:	Cynthia Boecker, Assistant City Manager
Date:	May 19, 2009
RE:	Follow up on Professional Contracting Memo

Mayor Chestnut requested some follow up information regarding my earlier memo on professional contracting.  Specifically, he asked about whether the two envelope and value selection processes would be in compliance with the Brooks Act since they both had strong elements of qualifications based selection.  This memo will address that question. 

In order to answer the question, I researched Federal Highway Administration guidance on consultant selection.  The guidance indicates that cost cannot be a criterion during the evaluation phase of the selection process, unless specifically provided for in state statutes enacted and grandfathered into law prior to June 9, 1998, and that price can be used in the negotiation and final selection process.  I also have a call into an attorney with the Kansas Department of Transportation, who needed to look into this question a bit further.  The information that I have gathered thus far indicates that the value selection process, which calls for price as a criteria prior to the final negotiation phase, would not meet the intent of the Brooks Act.  I believe that the two envelope system, in its purest form, may meet the Brooks Act. However, further guidance from the respective federal or state agency may be necessary. Under the two envelope system, a consultant simultaneously submits a qualifications-based proposal and a separate sealed cost proposal.  The cost proposal is only opened once the most qualified firm is selected and provided negotiations are successful with the highest ranked firm, all other cost proposals from other firms are return unopened. 

I also noted that the FHWA guidance mentioned that federal rules transfer to states and local governments only related to federal funding applied to design services.  So, another selection process could be used if the state or local government was paying 100% for the design of a project.  Utilizing a different process wouldn't affect federal funding for construction, only the reimbursement of design costs. 

Again I would reiterate that both the two envelope system and the value selection system are predicated upon there being a well defined scope in advance of the solicitation upon which to receive cost information.  Many of our projects do not have the scope well defined at this stage to allow appropriate apples to apples cost comparisons. 

I would be happy to address any further questions on this matter.

FHWA guidance:

http://www.fhwa.dot.gov/programadmin/172qa.cfm#r09