MAHONEY, SILVERMAN & CROSS, LLC DAVID J. SILVERMAN JOLIET - - PowerPoint PPT Presentation

MAHONEY, SILVERMAN & CROSS, LLC

DAVID J. SILVERMAN

JOLIET ● CHICAGO ● OSWEGO ● FRANKFORT ● MORRIS WWW.MSCLAWFIRM.COM

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q.

 Illinois units of Local Government  Architectural, Engineering and Land Surveying services  POLICY: It shall be the policy of the political subdivisions of the State of

Illinois to negotiate and enter into contracts for architectural, engineering and land survey services on the basis of demonstrated competence and qualifications for the type of services required and at a fair and reasonable compensation.

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q. L OCAL GOVE RNME NT

 Federal process may be utilized and rules modified or adapted to remain

eligible for federal aid

 Applies to “Projects” utilizing architectural, engineering, or land survey

services

 “Projects” – Any capital improvement project or any study, plan, survey or

new or existing program activity utilizing those services

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q. E XE MPT IONS

 Emergency situations where the emergency is documented in a formal

resolution

 Work under $40,000 (increased annually by CPI)  Home Rule Authority  Satisfactory relationship  City of Chicago

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q. PUBL IC NOT ICE

 Firms may annually file statements of qualifications and performance data

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q. ADVE RT ISE ME NT

 Unless the unit of government is utilizing a firm with a satisfactory

relationship:

 Notify all firms which have on file the annual statement of intent  Place an ad in newspaper requesting statements of qualifications and

performance duties for particular projects including when due; OR

 Place notice on website

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q. E VAL UAT ION PROCE DURE



Evaluate firms taking into account:

 Qualifications  Ability of professional personnel  Past record and experience  Performance data  Willingness to meet time requirements  Location  Work load of firm  Other factors  May require discussions and public presentations by firms deemed the most qualified  May not seek formal or informal cost estimates

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q. SE L E CT ION PROCE DURE S

 On basis of evaluations, discussions and presentations  Identify 3 most qualified firms  Rank 1-3

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q. CONT RACT NE GOT IAT ION

 Prepare scope of services  Begin negotiations with highest rank firm on contract price  Consider complexity, value, scope, and professional nature of services  Negotiate through the list of 3 if necessary  Re-evaluate and start over if necessary

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• c al Gover

nment Pr

• fessional Ser

vic es Selec tion Ac t (50 IL CS 510/ 1 e t. se q. HOME RUL E

 No Home Rule pre-emption  Home Rule units can use alternative methods  But be sure not to conflict with State/Federal

requirements that could affect funding

This Photo by Unknown Author is licensed under CC BY-SA

Architectural, Engineering, and Land Surveying Qualifications Act

ST AT E AGE NCIE S

 30 ILCS 535/1 e t. se q.  State Agency Procurement of services

i i This Photo by Unknown Author is licensed under CC BY-NC-ND This Photo by Unknown Author

Architectural, Engineering, and Land Survey qualifications based on Selection Act

 Applies to State agencies  Major differences from Local Government Act  Notice – Not less than 14 days advance notice in professional services

bulletin or the official state newspaper (The Breeze Courier)

 Establish a Selection Committee  Selection Committee must have at least one public member selected by

a statewide association of professional affected

 Exemptions for contracts less than $25,000

Architectural, Engineering, and Land Survey qualifications based on Selection Act

 State requires a “pre-qualification process”  There must be an evaluation post project of the firm which is confidential,

not subject to FOIA

 Prohibits an architect, engineer or surveyor from acting contrary to the

provisions of the Act or being a party to a contract in violation of the Act

 Contract is void and unenforceable and Comptroller and Treasurer shall

not process claims or checks

 Design build projects are not prohibited (30 ILCS 525/75)

Quality Based Selection Policies – Federal Funding

 23 CFR 172  Brooks Act  5-5 of IDOT Bureau of local roads and streets manual (5.06 e) – great

reference

Brooks Act

40 USC 1101 to 1104 Po lic y

 Policy of Federal Government to publicly announce all requirements for

architecture and engineering services

 On the basis of demonstrated competence and qualification  At fair and reasonable prices

Brooks Act

APPL ICAT ION

 Federal agencies  Professional services of architect or engineering nature associated with

research, planning, development, design, construction, alteration or repair

• f real property

 Other services including studies, surveying and mapping, soil tests, etc.

Brooks Act

SE L E CT ION PROCE DURE

 Agency Heads  Ranks firms  1-3 (or more)

BROOKS ACT

NE GOT IAT ION OF CONT RACT

 Negotiate to contract in order of the ranking  To obtain a fair and reasonable price

BROOKS ACT

PROCE SS OUT COME

 1. Public solicitation for services – annual submissions  2. Submission of Qualifications, etc., for announced projects  3. Evaluate submissions  4. Develop a short list of at least 3 firms  5. Interview firms  6. Rank Firms interviewed  7. Negotiation with top ranked firm

IDOT Bureau of Local Roads and Streets

 Projects funded with State, Federal or MFT funds

Illinois Department of Transportation

 The QBS process for projects using State and Federal funding are under the

jurisdiction of IDOT

 Examples and guidelines in 5-5 of the IDOT manual on Local Roads

CONFLICTS OF INTEREST

 No elected officials, employees, officers of the LPA may have a direct or

indirect financial interest in the contracts

 No direct or indirect interest in any property to be acquired for the project  Cannot perform inspection type services on a project designed by the firm

without protections and policies in effect to mitigate any conflict

STATE FUNDED PROJECTS

 Over $40,000 (adjusted)  Utilize QBS process in 50 ILCS 510/1 e t. se q. (local selection)

FEDERALLY FUNDED PROJECTS

 Use QBS as set forth in Brooks Act and Federal code, e t. se q.  Federally funded under $40,000 use small purchase procurement per 23

CFR 172.7(a)(2) AND several additional requirements including:



Cannot break down segments to avoid full requirements

 Must review at least 3 qualified consultant; if less than 3, submit IDOT to

review prices to be sure it wasn’t exclusionary

 If a change order takes it over $40,000 then Federal funds cannot be used

for the overage

POLICY

 Ensure a qualified consultant is obtained through a qualifications-based

selection process

 Application – Federally funded engineering and design services for

projects subject to the provisions of Federal Law

 Sate Agencies – provide for compliance to be performed by a State

Transportation Department or under its supervision

 If the QBS policy has been approved by IDOT then Federal funding should

be available without further IDOT review of the selection process

Quality Based Selection - Example

RE SPONSIBIL IT Y



The VILLAGE QBS policy and procedures assigns responsibility to the following personnel within the VILLAGE for the procurement of consultant engineering services, negotiations with the selected consultant engineering firm, and administration of the contract for projects utilizing federal funding, as described herein:



Village Cler k: Posting of public notice for consultant engineering services in the form of a

Request for Qualifications (RFQ) on the VILLAGE website; Placement of the RFQ in a local newspaper; Recipient of consultant submittals in response to the RFQ.



Village Administr ator: Point of contact for questions from potential respondents to the RFQ;

Selection committee member; Lead negotiator with the selected consultant; Project Administrator (PA) after IDOT authorization to proceed.



Dir e c tor

• f Public Wor

ks: Selection committee member; Assistant negotiator with the selected

consultant.



Village Boar d: Approval of the selection committee results; Approval of the negotiated

consultant contract for submittal to IDOT.



Mayor: Administrative oversight.

Quality Based Selection – Example



When developing the Public Notice for consultant engineering services, the VILLAGE will include the following information, with additional items as necessary when unique circumstances exist.

 Overall project description including the anticipated need, purpose, and objective

• f the project;

 The scope of engineering services being requested and any expected unique

challenges;

 The contract type and method(s) of payment anticipated;  Any special provisions or contract requirements associated with the solicited services;  The desired timetable for the engineering services being requested;  Any specific qualification requirements;

Quality Based Selection – Example



Minimum submittal requirements from interested consultant engineering firms;



Submittal instructions and due date;



Evaluation criteria that will be used for reviewing and scoring the consultant submittals;



Requirement that any cost proposals or elements of cost shall not be submitted with technical/qualifications proposals. These items will be requested during the selection phase as necessary.;



Anticipated timeframe for the consultant selection and establish a submittal deadline for responses to the Public Notice that provides sufficient time to receive notice, prepare and submit a proposal, which except in unusual circumstances shall be not less than 14 calendar days from the date of issuance of the RFP;



Instructions for retrieving available background information and submitting questions.



The VILLAGE will post the public notice on the homepage of the VILLAGE website and/or publish an ad in a newspaper with appropriate circulation. The public notice will be advertised for at least 14 days prior to the due date for consultant submittals with the website posting being continuous and the newspaper ad being at least twice.

Quality Based Selection – Example

Re vie w of Consultant Submittals



Se le c tion Committe e : The VILLAGE will appoint a two (2) person

selection committee for reviewing all consultant submittals. The selection committee members will include the Village Administrator and the Director of Public Works. The selection committee members must certify that they do not have a conflict of interest prior to completing their review of the consultant submittals, in compliance with the IDOT BLRS Manual, Section 5-5.04. If a replacement member of the selection committee is required, the replacement will be appointed by the Mayor.

Quality Based Selection – Example

Re vie w of Consultant Submittals



E valuatio n F ac to r s: The Village Administrator will establish the evaluation factors for reviewing the

consultant submittals for each project. The evaluation factors will typically include the criterion listed below, which complies with the weighting range guidance in Section 5-5.06(d) of the IDOT BLRS Manual.



Project Understanding



Similar Project Experience



Past Performance



Project Team



Project Development Approach



IDOT Prequalification



Overall Completeness of Submittal



These evaluation factors may vary from one project to another depending on unique project requirements or conditions that may be present. In addition, any required DBE and local presence combined will not be more that 10%.

Quality Based Selection – Example

Re vie w of Consultant Submittals



Sc or ing of Consultant Submittals: Each member of the selection committee

will provide an independent score for each proposal using the form below prior to the selection committee meeting. For each consultant proposal, the scores will range from 0 (lowest in comparison to others) to 10 (highest in comparison to others) for each criterion, with the overall score based on the weight assigned for each criterion.

Quality Based Selection – Example

Sample Sc or e She e t

Cr iter ia Weighting Sc or es (0-10)

Consultant 1 Consultant 2..

Consultant X Pr

• jec t Under

standing

20%

Similar Pr

• jec t E

xper ienc e

25%

Past Per for manc e

30%

Pr

• jec t T

eam

10%

Pr

• jec t Development Appr
• ac h

5%

IDOT Pr equalific ation

5%

Over all Completeness of Submittal

5%

T

• tal Weighted Sc or

e 100%

Quality Based Selection – Example

F inal Sc o r ing



F inal Sc o r ing o f Sho r t-L iste d Co nsultants: The selection committee member scores are

averaged for an overall committee score which is used to establish a short list of three

• firms. The overall committee score for the short-listed firms is adjusted based on selection

committee discussion, and any additional information gained from interviews of the short- listed firms, to determine the final scoping of the consultant submittals and the selected

• consultant. However, on a typical basis, the VILLAGE does not anticipate the need for

interviews.



If less than three (3) consultant submittals are received, then the VILLAGE will request IDOT approval that the QBS procedures followed are acceptable, before proceeding with final scoring of consultant submittals received.



The final scoring of the consultant submittals, and the selected consultant will be presented to the VILLAGE Board for approval.



Notification must be provided to responding consultants of the final ranking of the three most highly qualified consultants.

Quality Based Selection – Example

Co ntr ac t Ne go tiatio n

 At the conclusion of the consultant scoring and evaluation period, the

Village will commence negotiations with the top ranked firm.

 The VILLAGE will prepare an independent in-house estimate for the cost of

the consultant engineering services being requested, prior to contract

• negotiation. The estimate is used in the negotiation.

 The VILLAGE will require a two (2) person team to negotiate with the

selected consultant. The VILLAGE negotiation team will consist of the Village Administrator and the Director of Public Works, however, members

• f the negotiation team may delegate this responsibility to staff members.

The negotiation team will review the contract costs and the indirect cost rates to assure they are compliant with Federal cost principles prior to submission to IDOT.

Quality Based Selection – Example

Pr

• je c t Administr

ation



The Project Administrator (PA) for the VILLAGE will be the Village Administrator. The VILLAGE PA will monitor work on the project in accordance with the contract and provide status reports with the Mayor and Village Board as required and/or requested. The VILLAGE PA will prepare a written evaluation of the consultant’s work at the end of each project. These reports are maintained in the VILLAGE consultant information database. The VILLAGE will follow IDOT’s requirements, including the required submission of BLRS Form 05613 to the IDOT district at contract close-out along with the final invoice.



The VILLAGE PA will be required review and approve all invoices submitted by the consultant prior to payment and submission to IDOT for reimbursement.



The contracting agency shall retain supporting documentation of the solicitation, proposal, evaluation, selection of the consultant and negotiation in accordance with this section and the provisions of 2 CFR 200.333.

Major Differences Between Federal and State Requirements

 Additional work which was not included in the scope of services and

evaluation criteria may not be allowed to be added to contracts for federal QBS

 If non-competitive procurement (sole source, emergency, or less than

three consultants) is used; it must be approved by IDOT in advance for federal QBS

 LPAs are responsible for ensuring a consultant’s costs billed are allowable

in accordance with the federal cost principles and consistent with the contract terms for federal QBS

NEGOTIATING THE CONTRACT

 Bids and Specifications  Insurance  Indemnification  Liability Cap - $ amount  Liability Cap – insurance amount

ULTIMATE FAIRNESS