Qualifications-Based Selection of Engineering Services: State List

Establishes that if a contracting person procures architectural, engineering, or land surveying services for a state-funded contract, the contracting person shall, when selecting the contractor, negotiate with the most qualified and suitable professional person of demonstrated competence to perform the services. In the selection process, a contracting person may include price as an added factor in selecting architectural, engineering, or land surveying services when the services required are repetitious in nature, and the scope, nature, and amount of the services required are thoroughly defined by measurable and objective standards to enable professional persons making proposals the services required. For the contracting person to include price as a factor in selection, a majority of the persons involved by the contracting person in evaluation of the proposals shall be registered in the state to perform architectural, engineering, or land surveying services. 

In late 2016, the Alabama State Board of Licensure for Professional Engineers and Land Surveyors proposed an amendment that would undermine QBS in the state. NSPE and the Alabama Society have reviewed the proposed replacement language and submitted public comment in January 2017 recommending retaining the current requirements for QBS. Read the comment. During the March 23rd Board Meeting, it was ruled by the Board that seeking a price from a single professional is not a violation of Qualification-Based-Selection when the professional has been predetermined to be qualified to provide the services.

This measure states that if a state agency, a state-supported institution of higher education, or a political subdivision issues a request for qualifications, competitive bidding can be used to select the professional person from the qualified vendor list that is considered the best-qualified and capable of performing the desired work for the lowest price. NSPE reached out to the Arkansas Society of Professional Engineers in order to defeat the bill. Although the measure passed the Senate, the House recommended that the measure be studied during the Interim. NSPE and the Arkansas Society of Professional Engineers will collaborate to protect QBS going into the 2019 Legislative Session.

This bill establishes a pilot program to allow the Counties of Alameda, Los Angeles, Riverside, San Bernardino, San Diego, Solano, and Yuba to select a bidder on the basis of best value, as defined, for construction projects in excess of $1,000,000. The bill also establishes procedures and criteria for the selection of a best value contractor. It requires that bidders verify specified information under oath, thereby imposing a state-mandated local program by creating a new crime. The bill also requires the board of supervisors of a participating county, before January 1, 2020, to submit a report to specified legislative committees. The bill would repeal the pilot program provisions on January 1, 2020.

NSPE sent a public comment to the Florida House Oversight, Transparency & Administration Subcommittee in opposition to a bill that would eliminate QBS and replace it with a “best value selection process.” If enacted, H.B. 789 would allow price to influence as much as 50% of the selection process. This would create a procurement system in which price is given priority over the competence and qualifications of the provider in making procurement commitments. In the letter, NSPE President Kodi Jean Verhalen, P.E., Esq., F.NSPE, cited a Florida Department of Transportation analysis of the bill. She stated, “imposition of price would outweigh innovation as a selection factor, and encourage selection based on the cheapest proposal or design. This may result in higher transportation project life cycle costs, since the cheapest design is not always the most efficient or sustainable design.” NSPE has been collaborating with the Florida Engineering Society to defeat this legislation. The legislation passed out of committee on March 28. An amendment was added to exempt transportation projects to ensure continued federal funding. However, it still impacts non-transportation projects. NSPE continues to work with FES on next steps to defeat similar attempts. Read the comment here.

This bill would allow the Georgia DOT to use the lowest bidder method to procure engineering services, eroding long-standing nationally accepted best practices and Qualifications-Based Selection (QBS) law that has existed for more than 35 years at the state level in Georgia. Although the measure passed the Senate, it never received consideration in the House and failed upon adjournment.

HB 4333 sets forth provisions concerning multi-step sealed bidding, competitive sealed proposals, small purchases, sole source procurements emergency purchases, and multi-step sealed proposals. This measure also grants each chief procurement officer the authority to purchase or lease of personal property, supplies, and services which have been procured through a competitive process by a federal agency or other entities. Any request for proposals must comply with the federal Brooks Act and the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act except that pricing shall be an integral part of the selection process. This measure died upon adjournment in 2016.

HB 4644 and SB 2400 establishes that the Chief Procurement Officer and designated procurement officers owe a fiduciary duty to the state of Illinois to ensure competitive bidding. The Chief Procurement Officer can refine the competitive bidding process as long as the refinement is based on the principles and procedures of the federal Architect-Engineer Selection Law, Public Law 92-582 Brooks Acts, and the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act, except that pricing shall be an integral part of the selection process.  Another significant provision of these companion measures includes the contracting of energy savings. In the evaluation of offers, if a licensed architect or registered professional engineer on the executive agency's or contracting authority's staff is unavailable to serve as an evaluator, then the evaluation shall include a registered professional engineer or architect, who is retained by the executive agency or contracting authority. A licensed architect or registered professional engineer participating on an evaluation team under this Section must not have any financial or contractual relationship with an offeror or other source that would constitute a conflict of interest. These companion measures died during the 2016 Legislative Session.

In 2016, NSPE learned that an auditing firm published a report indicating that the Kansas Department of Transportation could save money by eliminating QBS in the department’s procurement of architectural and engineering services. NSPE wrote a letter to Kansas legislators stating the information contained in the report is incorrect and reiterated the importance of qualifications-based selection for architectural and engineering services and asked that QBS be preserved and strengthened in Kansas. The report by the auditing firm was discussed again in 2017 by the House Transportation and Public Safety Committee. NSPE submitted a letter to the Chair and Vice Chair of the committee, fighting back against a continuous effort to erode qualifications-based selection in Kansas. The Kansas Society of Professional Engineers, with the assistance of National Society of Professional Engineers was able to stop this recommendation from moving forward. NSPE and the Kansas Society of Professional Engineers will continue to work together to defeat this ongoing threat.

NSPE alerted the Kentucky Society of Professional Engineers to a proposed rule that would have rescinded regulations directing the Kentucky Transportation Cabinet to carry out qualifications-based selection. NSPE and KSPE then worked together and contacted transportation cabinet officials to explain the value of QBS and the necessity of the regulations. As a result, the cabinet rescinded its proposed rule to eliminate the regulations. The letter commending the Transportation Cabinet for rescinding the regulations to repeal QBS can be read here. The effort was another critical example of the value of NSPE’s advocacy efforts and national-state collaboration.

This bill would authorize the Department of Transportation and Development to conduct Request for Qualifications and Request for Proposal bid processes concurrently; and authorize DOTD to issue a single Request for Qualifications for multiple projects. This measure died during the 2016 Legislative Session.

These companion measures, which have been signed into law, simplified and streamlined the procurement process for engineers and architects in Maryland and protects QBS. Specifically, it states that Qualification-Based-Selection should only be used by the Department of General Services or the Department of Transportation if the proposal:

- Is for architectural services or engineering services;

- The proposal is made on a competitive basis;

- Includes an evaluation of the technical proposals and qualifications of at least two persons;

- The persons cannot be provided feasibly and economically by existing-in-house resources.

A request for architectural or engineering services shall include a statement describing generally the architectural services or engineering services that are the subject of the procurement and indicating how an interested person may receive information about the procurement. From the results of the selection process, the Department of General Services or the Department of Transportation should begin negotiations with the most qualified persons. The Maryland Society of Professional Engineers came out in support of the measure.

In 2016, NSPE called on Michigan legislators to support Michigan House Bill 5238, the Local Government Professional Services Selection Act. If enacted, the legislation will set procedures for local governments to procure architectural, engineering, and land surveying services using a qualifications-based selection process. NSPE believes qualified professional engineers should be selected to perform all engineering services on the basis of design ability, experience, integrity, and other key professional factors—rather than price. You can read the letter to Michigan state legislators here. This measure died upon adjournment, but a measure has been refiled during the 2017 Legislative Session as HB 4447. The measure has not moved out of the House Committee on Local Government.

Under existing law, contracts for professional and technical services to be awarded by State agencies, including independent authorities, may be negotiated and awarded without being publicly advertising for bids.

SB 1545 would provide, instead, that these contracts would be subject to a competitive bidding process. Specifically, contracts for architectural, engineering, and land surveying services of local governments and school boards will be awarded pursuant to a competitive contracting process on the basis of demonstrated competence and qualifications that is similar to the process for awarding of such contracts by State agencies.

SB 1846 requires that contracts entered into by the Port Authority of New York and New Jersey, the Delaware River Port Authority, and the Delaware River and Bay Authority for professional services be subject to a competitive bidding process.

Specifically, the bill requires that any contract for services, which are of a technical and professional nature, including, but not limited to, architectural, engineering, and land surveying services, to be performed by a contractor that is to be awarded by the authorities shall be publicly announced prior to being awarded. Contracts for these services shall be negotiated on the basis of demonstrated competence and qualification for the type of technical and professional service required and at fair and reasonable compensation and awarded pursuant to a competitive contracting process.

NSPE and NJSPE have and will continue to work together in order to ensure QBS is maintained in New Jersey.

Currently in New York, state agencies are required to use QBS as the sole procurement methodology. By contrast, SB 5600 and AB 5750 are companion measures which would make this permissive. These measures would authorize public authorities and public benefit corporations to negotiate with professional firms providing architectural or engineering services in order from the most qualified to the least qualified with regard to the provision of services to the authority or corporation. 

AB 5759 and SB 4475 are companion measures during the 2015-2016 Legislative Session that would allow public authorities a greater opportunity to negotiate with the most qualified architectural and engineering professional firms through annual statements of qualifications and performance data created by professional firms. These measures died during the 2016 Legislative Session.

The New York State Society of Professional Engineers historically supports legislation which would expand the mandatory use of QBS by public authorities and public benefit corporations. NSPE and NYSSPE have and will continue to work together in order to ensure QBS is maintained in New York.

The measure sought to prohibit a public authority from requiring a contractor to employ a certain percentage of individuals from a geographic area. Although the measure passed the Senate and House, the Senate refused to concur with House amendments. As a result, this measure failed upon adjournment.

These companion measures would allow counties to procure engineering services by low bid which essentially bypasses QBS. Specifically, these measures articulate that for counties in the selection of a construction manager or consultant, if more than one construction manager or consultant meets the required professional qualifications and technical experience, the qualifying construction managers or consultants must submit a bid based on percentage of the project total plus any separate costs that may be added. The board will then compare the bids and select the lowest.

NSPE and the Oklahoma Society of Professional Engineers are working to ensure that this QBS threat is defeated.

HB 7310 establishes a new comprehensive process for the procurement selection of engineering and architectural consultant services based upon demonstrated competence experience and qualifications at fair and reasonable prices.

It is articulated that the purchasing agent shall negotiate a contract with the highest qualified firm as recommended by the selection committee for architectural and engineering services at compensation which the purchasing officer determines in writing to be fair and reasonable to the state. In making this decision, the purchasing officer shall take into account the estimated value, the scope, the complexity, and the professional nature of the services to be rendered. Should the purchasing officer be unable to negotiate a satisfactory contract with the firm considered to be the most qualified, at a price the purchasing officer determines to be fair and reasonable to the state, negotiations with that firm shall be formally terminated.

It would also require the state to comply with Federal laws and regulations in the procurement of architectural and engineering services. NSPE and the Rhode Island Society of Professional Engineers are collaborating on working together on this measure to ensure QBS is upheld. 

In 2017, Prior to the passage of SB 925 & HB 5817, when the purchasing agent determines that the city or town needs the services of an engineer, the purchasing agent shall follow the qualification based selection process for the procurement of engineering consulting services. These companion measures clarify that when utilized, by the city or town, the qualification based selection process must comply with federal law and regulations including, but not limited to the Brooks Act.

HB 6197 sought to establish that in the procurement of architectural, engineering, and consulting services and in the awarding of contracts, the state should comply with federal law and regulations including, but not limited to, the Brooks Architect-Engineers Act, and take all necessary steps to adapt its rules, specifications, policies, and procedures accordingly to remain eligible for federal aid. Although this measure passed the House of Representatives, the Senate Committee on Labor recommended that this measure be held for further study.

The intention of this bill is to modify the procedure certain public agencies must take in order to contract for certain architectural and engineering services by requiring joint discussions with prospective architectural or engineering firms in contract negotiations. Following the joint discussions, the final three firms shall each submit a proposed contract, including estimated costs to the agency and the agency will use that information, together with the qualifications, in order to select the lowest, qualified firm from the three options. If the public agency rejects all proposed contracts, the agency and seek other proposals from additional firms.

This measure may have begun the process to repeal QBS in West Virginia. NSPE and the West Virginia Society of Professional Engineers will continue to collaborate in order to defeat any future efforts.