R907.  Transportation, Administration.
R907-66.  Procurement of Consultant Services - Procedures and Contract Administration.
R907-66-1.  Authority and Purpose.
	(1)  Authority.  The Department of Transportation (the "Department") makes this rule pursuant to authority granted by Utah Code Sections 63G-6a-106(3)(a) and 72-1-201(1)(h).
	(2)  Purpose.  The Department solicits for and contracts with consultants to perform design professional, engineering, and engineering-related services.
	(a)  This Rule, R907-66, establishes procedures for procuring services of design, engineering and engineering-related professionals, identified herein as consultants, and administering the attendant contracts utilizing Federal-aid highway program funding or Utah state funding.
	(b)  For detailed guidance beyond federal and state codes, federal regulations, and this rule, the Department's Consultant Services Division maintains the Consultant Services Manual of Instruction, which includes procedures and guidelines for preparing and publishing solicitations such as requests for qualifications that have project-specific requirements.

R907-66-2.  Definitions.
	For purposes of this rule, R907-66, the following definitions apply:
	(1)  "Brooks Act" means a commonly used term for the Federal Property and Administrative Services Act of 1949 (Public Law 92--582, 86 Stat. 1278 (1972) and 40 U.S.C. Chapter 11, Section 1101-1104.
	(2)  "Competitive negotiation" means any form of negotiation that utilizes qualifications-based procedures complying with the Brooks Act.
	(3)  "Consultant" means an expert the Department contracts with to perform professional services as may be necessary to the planning, progress, and completion of any design, engineering, and engineering-related service.
	(4)  "Desk review" means a process that includes a limited-scope examination of a Consultant's original source documentation and communication to provide reasonable assurance that costs presented are not materially misstated and comply with FAR and 2 CFR Part 200.
	(5)  "The division" means the Consultant Services Division of the Department of Transportation.
	(6)  "Engineering," "the practice of engineering," and "professional engineering" mean the same as the terms are defined in Utah Code Section 58-22-102(9)(a).
	(7)  "FAR" means Federal Acquisition Regulations, Title 48, Code of Federal Regulations.
	(8)  "Federal-aid highway funds" means funds authorized by Congress to assist the Department in providing for construction, reconstruction, and improvement of highways and bridges on eligible Federal-Aid highway routes and for other special purpose programs and projects.
	(9)  "Other Professional Services" means grant writing, asset management, transportation research, prototype development, technology transfer, project-related public involvement, right of way acquisition services, or other services as deemed necessary by the executive director or designee.
	(10)  "Qualifications-based selection" or "QBS" means that procurement process 40 U.S.C. Sections 1101 -- 1104 (Brooks Act), as a process for public agencies to use for architectural, engineering, and related professional services for public construction projects and Utah Code 63G-6a Part 15 for procurement of design professional services.
	(11)  "Risk Assessment" means a process that includes identifying and analyzing potential internal control deficiencies and evaluation of initial evidence for indications of noncompliance with FAR and 2 CFR Part 200 and making judgments on the tolerability of the risk of accepting the Consultant's indirect cost rate(s) as presented without further action.

R907-66-3.  Qualifications-based Selection of Consultants for Design, Engineering and Engineering-related Services.
	(1)  The Department will perform qualifications-based selection procedures, including competitive negotiations to procure, manage, and administer contracts with consultants and other professional services.

R907-66-4.  Incorporation by Reference of Applicable Federal Law.
	To receive grants of federal-aid highway funds the Department must conform to applicable federal law.  Therefore, the Department incorporates by reference the following federal regulations:
	(1)  2 CFR Part 200 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards for both federal and state funded projects. 2 CFR Part 200 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
	(2)  23 CFR 1.11, Engineering Services.  23 CFR 1.11 Engineering Services
	(3)  23 CFR 1.33, Conflicts of Interest.  23 CFR 1.33 Conflicts of Interest
	(4)  23 CFR 172, Procurement, Management, and Administration of Engineering and Design Related Service Contracts.  Procurement, Management, and Administration of Engineering and Design Related Services

R907-66-5.  Small Purchase Cap.
	(1)  Utah Code Section 63G-6a-506(2) grants the Department authority to make rules governing small purchases of any procurement item.
	(2)  When procuring services of consultants, the Division will follow the simplified acquisition threshold established by 48 CFR 2.101 as the small purchase maximum or small purchase cap for individual procurement of consultant services.
	(3)  The Division will establish pools of prequalified consultants or other professional service providers for various work disciplines for consultant selection to perform services with an estimated value less than the Small Purchase Cap following the Utah Procurement Code Section 63G-6a-507 Approved Vendor List Procurement Process.
	(4)  The Department will publish detailed procedures the Consultant Services Division will follow to establish pre-qualified consultant pools in the Consultant Services Manual of Instruction, Pool Solicitation or other Solicitations such as Requests for Qualifications.

R907-66-6.  Selection of Consultants for Services with Estimated Values in Excess of the Small Purchase Cap.
	The Department will select consultants for contracts with a value in excess of the small purchase cap set forth in R907-66-5 in accordance with 23 CFR Part 172, Utah Procurement Code 63G-6a Part 15 Design Professional Services, the Consultant Services Manual of Instruction, and the specific Solicitation such as the Request for Qualifications.

R907-66-7.  Consultant Financial Screening and Auditing.
	(1)  To provide reasonable assurance that the Consultant's presented Indirect Cost Rate(s), hourly billing rates, and direct costs comply with the FAR and 2 CFR Part 200, Subpart E, Cost Principles, the Department will conduct risk assessments, desk reviews, and audits as necessary for consultants seeking to perform design professional, engineering, or engineering-related services for the Department.
	(2)  Consultants submit their firm's Financial Screening Application (including all required supporting documents) within 90 days of their most recent fiscal year-end or 60 days prior to the anniversary date of their previous financial screening application approval, whichever occurs first.
	(3)  The Department Office of Internal Audit may conduct an audit to determine costs are allowable and in compliance with the requirements of 2 CFR Part 200.

R907-66-8.  Competitive Contract Negotiations.
	(1)  The Department will conduct competitive negotiations for contracts with the consultant firm it considers most qualified to provide services necessary to complete a project using guidelines developed by the Division.  The Department will prepare independent estimates of the value of such services for use in negotiations.
	(2)  Negotiations follow state and federal procurement procedures and are based on compensation that the Department considers fair and reasonable.  Negotiations will end if the Department decides that it cannot agree on terms with the firm it considers most qualified.  The Division will then begin negotiations with the firm it determines to be next most qualified firm.  This process continues until either mutually agreeable terms are agreed to or the Division chooses to begin the selection process again to identify other firms qualified to provide such services.
	(3)  The guidelines for both consultant selection and negotiations are public information and may be found within the Consultant Services Manual of Instruction, the project-specific solicitation or request for qualifications, and other guidelines established by the Division and published on the Department's Internet web site.

R907-66-9.  Award of Contracts.
	The Division will award a contract to the best qualified, responsive and responsible consultant with which it can negotiate a fair and reasonable cost as required by the Utah Procurement Code and 23 CFR Part 172, and in accordance with the Department's Consultant Services Manual of Instruction and other guidelines established by the Consultant Services Division.

R907-66-10.  Execution of Contracts.
	The Department will not consider a contract effective until funding has been approved and all signature lines have been filled in with the appropriate officer's signature.

R907-66-11.  Notice to Proceed.
	(1)  Consultants may not begin performing work under a contract before the Division has issued to the consultant a notice to proceed for the contract.
	(2)  The Department will not pay for any work a consultant performs before the Department has issued to the consultant a notice to proceed for the contract.

KEY:  procurement, small purchases, design and engineering services
Date of Enactment or Last Substantive Amendment:  March 26, 2019
Notice of Continuation:  October 7, 2016
Authorizing, and Implemented or Interpreted Law:  63G-6-105; 72-1-201