Limitations for Consultants Serving in Management Roles?

The following question was asked by a consultant who is currently under contract as an agency’s public works director:

Can my firm submit a proposal for other agency design work while I act as the engineer of record for the agency?

In general, regulations and procedures are in place to promote a fair, open, and competitive environment. Assuming that the agency can ensure that the engineer (the public works director in this situation) is not on the selection panel or involved with the selection process, the consultant’s firm may submit proposals and compete for other agency work. Additional guidance and required forms are detailed in Chapter 10 of the LAPM.

If the consultant’s firm is selected and awarded for work, the agency may want to consider oversight and approval actions in addition to their normal process. These extra measures would further demonstrate compliance in the event of a project audit or review.

FHWA has provided examples of measures to mitigate the potenital for conflicts of interests with consultants serving in a management role on their Consultant Services site:

  • Conflict of interest guidance, policies, or procedures for consulting firms serving in roles as prime or sub-consultant on projects/contracts and associated impacts to a firm’s ability to participate in other roles, project phases, or contracts;
  • Conflict of interest identification, disclosure, and mitigation plans and procedures for both contracting agency and consultant staff throughout all stages of project development and delivery;
  • Consultant errors and omissions policies and procedures;
  • Policies and procedures (provided statutory framework permits) for a contracting agency to pursue a range of civil actions and penalties including fines, suspension, or debarment associated with fraud, waste, abuse, and identified conflicts of interest which were not disclosed; and
  • Provision for Hotline Complaints to the U.S. DOT Office of Inspector General (OIG).
  • Contract documentation which clearly defines each contracting party’s roles, responsibilities, and duties for a project.
  • Providing necessary resources and guidance to support management and oversight of conflict of interest concerns at a program and project level, such as providing a full-time contracting agency employee to serve in responsible charge of a Federal-aid construction project (as specified in 23 CFR 635.105).
  • Monitoring, evaluation, and reporting on compliance with Federal and State laws and regulations and approved policies and procedures with respect to conflicts of interest. To ensure overall compliance and no conflicts of interest exist, this oversight and quality assurance should include regular sampling and evaluation of contracts and be documented by reports which identify any remedial actions to address findings.
  • Training requirements/programs for contracting agency and consultant staff on contract management, ethics, conflicts of interest, laws and regulations, and approved policies and procedures.
  • Periodic review and discussion of contracting agency conflict of interest policies with representatives of the consultant engineering industry.

For additional information, reference Chapter 10 of the LAPM and FHWA’s Consultant Services site.

About David Giongco

David is a registered civil engineer with the Caltrans Division of Local Assistance. Learn more about him here and connect with him on Twitter and at LinkedIn.

2 thoughts on “Limitations for Consultants Serving in Management Roles?

  1. Specifically Section 10.9 of the LAPM addresses this question in greater detail such as requiring various forms by the consultant. I pasted a few excerpts from the latest version of Chpt. 10 (found in OB 12-03).

    • Completion by the consultant designated as an agency engineer of the conflict of interest for public agency officials “Form 700” as required by state law. Form 700 “Statement of Economic Interests” is online at: http://www.fppc.ca.gov/forms/700-12-13/Form700-12-13.pdf

    • For a state funded or federal-aid project, completion of an “Exhibit 10-T Panel Member Conflict of Interest and Confidentiality Statement” form by all members (both consultants and employees) prior to participating in the Architect & Engineering (A&E) Selection Panel pertaining to the specific selection process and the firms being considered
    • For a state funded or federal-aid project, a local agency consultant in a management role shall not:
    o Participate in, or exercise authority over the A&E selection process, if that consultant’s firm is one of the proposing firms, or sub-consultant to a proposing firm.
    o Participate in, or exercise authority over management of work performed by the consultant’s firm, or to a consultant’s firm of which the local agency consultant firm is a sub-consultant. This would include, but not limited to, managing or directing the work, approving changes in the schedule, scope, or deliverables; and approving invoices.
    o Apply for or receive reimbursement of federal-aid funds for the local agency’s federal-aid project if either of the foregoing has occurred. However reimbursement for the construction contract portion of the project will still be allowed provided all other federal-aid requirements have been met.
    • For a state funded or federal-aid project, completion of “Exhibit 10-U Consultant in Management Position Conflict of Interest and Confidentiality Statement” form by all consultant engineering staff in management positions that exercise authority over the A&E Selection Panel pertaining to the specific selection process and the firms being considered.
    • A completed “Exhibit 10-U Consultant in Management Position Conflict of Interest and Confidentiality Statement” form shall be submitted to the District Local Assistance Engineer (DLAE) by the local agency concurrently with submitting the request for the funding authorization of an Architect Engineer contract which will contain federal or state funds.

    If engineering services for a project are within the scope of the services described in the retained consultant’s agreement, these services may be performed by the person or firm designated as an agency engineer. If the services are not within the scope, eligibility for federal and/or state reimbursement for these services require a new consultant agreement to be developed using the selection procedures in this chapter. Retained consultants involved in the preparation of the Request for Proposal (RFP), or Request for Qualifications (RFQ) shall not be considered in the selection of consultants for the resulting project specific work.

    • Subparagraph of 23 CFR §172.9(d) “Consultant in management roles,” requires that if a local agency has or intends to have a consultant in a management role (except as the designated public official, City Engineer or equivalent, as provided for under the terms of the local agency contract), the local agency shall receive approval from Caltrans. In addition, any federal-aid projects designated as High Profile projects, may also need approval from FHWA.

  2. Pingback: Top 5 Contract Audit Findings | Local Assistance Blog

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