Federal law requires use of qualification-based selection process for federal aid architecture and engineering contract.
A federal law which became effective on November 30, 2005 (Public Law 109-115,
section 174,) has been incorporated into 23 CFR 172 which requires state and local
transportation agencies to utilize a “Brooks Act” - compliant Qualification-Based
Selection (QBS) procedure when awarding federally-assisted architecture and
engineering (A&E) contracts. This law repealed authority for such agencies to use
“alternative” state law procedures (such as “Best Value”) or
In a nutshell, the Brooks Act provides that covered contracts must be:
- Publicly announced; and
- Competitively awarded on qualification-based criteria only, not utilizing cost as a
factor in consultant selection.
Following are questions and answers regarding implementation of this new federal
What types of contracts are covered by this law?
Engineering and design-related services are defined to include program management,
construction management, feasibility studies, preliminary engineering, design
engineering, surveying, mapping, or architectural-related services.
Are there any exclusions?
Yes. Brooks Act procedures do not need to be used for contracts such as planning studies
that are not directly related to or connected to a construction project. In addition, the
Brooks Act exempts certain “small purchases” – which is the smaller of the federal
(currently $100,000) or state (currently $5,000) small purchase amounts. There are also
provisions for “non-competitive negotiation” (i.e. “single source”) contracts with
requirements similar to those found in state law.
Can price be a consideration in a QBS selection?
No. Consultants must be ranked and selected without regard to cost. Cost will be
negotiated with the top-ranked consultant.
Must a local agency accept the consultant’s cost?
No. Prices negotiated after consultant selection must be fair and reasonable to the local
agency. If, after good faith negotiation, the local agency and the selected consultant are
unable to agree on price, the local agency may end the negotiations and begin negotiating
with the next-ranked consultant. Having a good internal estimate prior to negotiation will
help your negotiating position. MnDOT recommends that RFP’s contain terms that:
- Require the consultant to submit a proposed budget and detailed scope of duties
promptly after selection, and
- Require negotiations to be finalized in a reasonable time
period and provide notice that the local agency has complete discretion to determine
when to terminate negotiations and move on to the next-ranked proposer.
How are proposals solicited?
Proposals must be solicited by public announcement, advertisement or any other method
that assures qualified in-state and out-of-state consultants are given a fair opportunity to
be considered for award of the contract. Publication in the local agency’s official
newspaper should be legally sufficient, though you may want to use other means to reach
a broader audience.
What factors can be used in consultant selection?
Factors to be considered may include demonstrated competence and expertise related to
the project requirements, resources available to perform the work within the time
constraints, record of past performance, proposed project management techniques, and
other non-cost factors demonstrating an ability to handle special project constraints.
May a local or in-state preference be used?
No. A local agency may not give a preference to a local or in-state consultant, however,
familiarity with and availability to the project locale may be considered as a factor. In
addition, in those cases where state law requires the use of an engineer licensed in
Minnesota, such licensure may be used as a factor.
When must a local agency start using the Brooks Act process?
This applies to any covered federally-assisted A&E contract procurement initiated after
November 30, 2005.