ITE Journal - January 2020 - 29

tract should also be assigned based on qualifications, not price. The value of the QBS process
is in the negotiation of scope and deliverables and the collaboration between owner and
consultant on how best to achieve what the owner needs. Price selection alone often leads
to unrealistic expectations of the work that will result in change orders. If agency staff are not
familiar with the scope of work they are requesting, they could choose to develop a small
works task order with one of the firms on their on-call list so they are in the best position to
collaborate in negotiations. Government agencies should be encouraged to follow the Brooks
Act (Public Law 92-582), also known as the qualification based selection, which establishes
the procurement process by which architects and engineers are selected for design contracts with federal and construction agencies. Architectural and engineering (A/E) contracts
are negotiated on the basis of demonstrated competence and qualifications for the type of
professional services required with at a fair and reasonable price negotiated after selection.
If the city was not able to negotiate an acceptable price, then they have the option of going
to other firms for the procurement of services. Contracting with multiple firms under a single
on-call contract, based on qualifications, but then bidding assignments is an end-run around
QBS practices.
Ms. Designer should have questioned the process when she was first requested to submit
the scope and budget for the work. At that time, Ms. Designer would have been clear on the
selection process. Now that Firm No. 2 has been selected, Ms. Designer has some options but
should consider not jeopardizing future projects with the city. Ms. Designer could discuss the
selection process with the city transportation engineer and reach an understanding of the
selection process for the on-call list for engineering services. Ms. Designer also has the option
of enlisting the help of other engineering organizations such as the American Council of Engineering Companies (ACEC) to contact local agencies to clarify best practices and applicable
federal and state laws, and if necessary, to advocate for changes to the city practices. ACEC
intervention can protect the relationships and reputation of individual firms and demonstrate
the weight of the matter to the entire engineering industry.

Conclusions
1.
2.

3.

The "shopping around" on price is a violation of the Brooks Act and not in compliance
with evaluation for engineering services.
Ms. Designer should have grasped the variation from QBS and questioned the process
before the initial submission. This could have resulted in an amended RFP that established the QBS basis for this task.
The best option for Ms. Designer is to have a friendly contact with the city transportation
engineer, either directly or through an engineering association, and reach some
agreement on the selection process for the on-call list so that she does not impact
future work with River City. itej

CANONS

OF ETHICS

Preamble
Use professional knowledge
and skill for the advancement
of human welfare.
Be honest and impartial in
dealing with employer, clients,
and the public.
SEC. 20: The member will not
engage in competitive practices
contrary to the law (The Brooks Act).
SEC. 21: The member will in
solicitation, submittal or evaluation
of a proposal for professional
services, give due regard to all
aspects including: technical
capability, prior experience,
creativity, and suitability of the
proposed work plan.

Note: The above discussion and opinions are based on the data submitted and do not necessarily represent all of the pertinent facts when applied to a specific case. The opinions are for educational purposes
only and should not be construed as expressing ethical opinions of individuals. Thanks to Matt Reiffer, senior director of transportation programs at the American Council of Engineering Companies (ACEC),
for contributions to this article. The discussion and opinions do not represent the opinion of the Institute of Transportation Engineers or ACEC, nor do they represent decisions of the ITE International Board of
Direction or the ACEC Board of Directors.
This information is not intended or offered as legal advice. The advice and/or situations presented in this column are for illustrative purposes only. Always consult your legal counsel before taking any actions or
making any decisions that would require legal input. No person should act or fail to act on any legal matter based on the contents of this column.
The Committee for the Ethical Forum: W. Hibbett Neel Jr., P.E.(H); James L. Pline, P.E., PTOE (H); Jeremy R. Chapman, Ph.D., P.E., PTOE, J.D. (F), and Richard F. Ryan, P.E. (M).
w w w .i t e.or g

J a n u ar y 2020

29


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ITE Journal - January 2020

Table of Contents for the Digital Edition of ITE Journal - January 2020

ITE Journal - January 2020 - Cover1
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