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    Contracting with architects and engineers: What’s required today?

    Construction reform implemented by H.B. 153 in 2011 for Ohio public entities included revisions to the qualifications-based selection (QBS) process required when an Ohio public entity selects an architect or engineer to perform design services. The major revision included in H.B. 153 was the elimination of the $25,000 threshold for the cost of design services to be provided, below which the law did not previously apply. Although the QBS process and changes implemented with construction reform have been in effect for several years, not all public owners and design professionals are aware of and following the current process. 

    At its simplest, the QBS process includes four steps:

    1. Announcement of an available contract for design services (often done through a short legal notice published in the newspaper).
    2. Issuance of a public announcement (a Request for Qualifications, or RFQ) of an available contract for design services, which includes basic information about the project, required services and criteria against which firms will be measured.
    3. Evaluation of the statements of qualifications and statements of interest received from design firms, which may include interviews (not required), and the ranking of firms based upon qualifications to determine the most qualified.
    4. Negotiation of a reasonable fee for services and preparation of an agreement with the selected firm that defines the services and fee.

    When is the QBS process required for design services? 

    As defined in Ohio Revised Code (ORC) Section 153.65(C), “professional design services” means “any services within the scope of practice of an architect or landscape architect registered under Chapter 4703. of the Revised Code or a professional engineer or surveyor registered under Chapter 4733. of the Revised Code [emphasis added].” With the elimination of the $25,000 threshold, the statutory process applies to any design services contract, no matter the fee amount. For example, survey services, which often cost less than $1,000, are subject to the process, unless the public entity can use an exemption included in the ORC. As a reminder, engineering services include construction materials testing and inspection services, as well as geotechnical services for soil borings, which are often required for a construction project.

    When using the design-build delivery method for a public construction project, the public owner must first select a criteria architect or engineer before the statutory process prescribed for selecting the design-build firm can proceed. Selection of the criteria architect or engineer is subject to the QBS process, unless an exception exists. While the State maintains certain prequalified lists of design professionals on the OFCC website, these are available only for the State and its agencies; other public owners must follow the applicable law when design services are required.

    What is the correct way to publish the public announcement of an available design services contract?

    Public owners will often send the notice of an available contract to a pre-selected group of firms. But what does the ORC require? ORC 153.67(D) prescribes the options a public owner may use. The public announcement may “be sent to any of the following that the public authority considers appropriate:”

    1. Design-build firms, including contractors or other entities that seek to perform the work as a design-build firm
    2. Architect, landscape architect, engineer and surveyor associations
    3. The news media
    4. Any publications or other public media, including electronic media

    Note that the only option for sending the public announcement (or legal notice) directly to design professionals is when the design-build construction delivery method will be used. The easiest way to comply with the statutory requirement is to publish a short legal notice in the local newspaper; in addition, copies of the RFQ can be sent directly to design firms.

    Exception when a qualifications file is maintained

    If the professional design fee will be less than $50,000 and the public authority maintains a file with current qualifications (the qualifications must have been submitted within the immediately preceding year), the public authority may select a design professional or firm determined to be most qualified to provide the required services from the qualifications in the file.[1] ORC Section 153.68, which has been part of the QBS process since it was first enacted, permits public authorities to “institute prequalification requirements” and maintain files with current qualifications for use when the public authority requires design services.

    Exception when the existence of an emergency requires immediate action

    One other exception to the QBS process, which was included in the original legislation and remains, is for an emergency requiring immediate action. ORC 153.71(B) defines this exception and provides that the public authority head may determine in writing that a project is “an emergency requiring immediate action.”

    What happens if fewer than three design firms submit qualifications in response to an RFQ?

    ORC 153.69(A) requires the public owner to “select and rank no fewer than three design firms.”  However, if fewer than three firms submit qualifications, even if it is only one firm, and the firm is determined to be qualified, ORC 153.69(A) also provides that the qualifications received are to be evaluated and ranked to determine the most qualified firm. The public authority is required to state in writing that fewer than three qualified firms were available at the time the design services were needed.

    Can any cost or fee information be requested with qualifications submittals?

    No. ORC 153.691 was enacted in 2003. It specifically states that public owners may not request fee information, including “any form of fee estimate, fee proposal, or other estimate or measure of compensation prior to selecting and ranking professional design firms.”

    What happens if an agreement cannot be negotiated with the firm ranked most qualified?

    While it is unusual to not reach an agreement with the firm ranked most qualified to provide the required design services, it does happen. In that situation, the public owner may terminate the negotiations in writing with the firm and begin negotiating an agreement with the firm ranked second-most qualified. The public owner also has the right to terminate the overall process and start over. It may not, however, re-open negotiations with the firm with which it terminated negotiations.

    Summary of Current Statutory QBS Process

    1.

    All architecture and engineering contracts are subject to the QBS process, regardless of estimated fee for services, unless:

    • The public authority maintains a file with current qualifications and the estimated cost of design services will be less than $50,000.
    • The public authority head determines in writing that there is an emergency requiring immediate action.

    2.

    Architectural services include planning and programming, as well as design services.

    3.

    Engineering services include surveyors, geotechnical services, soil borings, construction materials testing and inspection, abatement, investigations and commissioning services, all of which are overseen by current registered engineers.

    4.

    No fee estimate or measure of costs of services may be requested from firms before the ranking and selection of the most qualified design firm.

    5.

    The easiest way to comply with the statutory requirement to publish the announcement or legal notice of an available contract is to publish a short notice in the local newspaper. If the newspaper is a member of the Ohio Newspaper Association, it will post the notice to the PublicNoticesOhio.com website. The notice may also be sent to plan rooms and other services that maintain information about available contracts for construction projects. Sending the RFQ directly to design firms without publishing the notice of an available contract in the newspaper is not an option provided in the ORC, except when selecting a design-build firm.

    6.

    The design-build delivery method requires:

    • Selection of a criteria architect/engineer initially, following the statutory QBS process, unless an exception is available. The criteria architect/engineer prepares criteria for the project, which are then included in the RFP prepared for the design-build firm selection process
    • Selection of a design-build firm, following the requirements included in the ORC and OAC, which is a two-step process:
      • Step 1:  Solicitation of qualifications, which are evaluated to create a short-list of a minimum of three firms; if fewer than three firms submit qualifications, the public owner may continue the process, but it must state in writing that fewer than three qualified firms were available. 
      • Step 2:  Issuance of a request for proposals including both pricing and technical information to the short-listed firms. Proposals received are evaluated to determine the design-build firm that will provide the best value for the project.

     

    Conclusion

    The QBS process required for public authorities can be tailored to a specific construction project or program, depending upon the size and complexity of the project, as long as the essential steps required by the ORC are followed. Consult legal counsel for assistance to define a process and document it appropriately, as well as to prepare a design services agreement with the firm selected as most qualified to provide the required services. 

     

    [1] ORC Section 153.71(A) (effective Sept. 29, 2011)

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