Selection of Design Professionals

Selection of Design Professionals

The selection of the architect and engineers (A/E) for a project is arguably the most important decision the public entity will make. As a result, the California public sector has developed formal qualifications-based selection rules that focus on integrity, capability, experience, financial strength and availability. The process is intended to assure the public obtains quality design services at a reasonable cost.

The provisions of the Public Contract Code promoting competitive bidding do not apply to contracts for architectural, engineering or project management services. Instead, they use a qualifications-based selection process under Government Code §§ 4525-4529.5, the so called "Little Brooks Act" It is based upon the US Government's Brooks Act which mandates qualifications-based selection of A/E services for federal construction projects.

The selection of design professionals by a state or local agency are on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required. California agencies must therefore adopt by regulation and local agencies may adopt by ordinance, procedures to assure that design professionals are engaged on this basis and that their services are provided at fair and reasonable prices to the public agencies. In addition, the agencies must ensure the maximum participation of small business firms and must prohibit unlawful practices such as rebates, kickbacks, and conflicts of interest.

The regulations governing the selection of private architectural and engineering firms for projects for the State of California are provided by the Department of General Services. However, in negotiating a fee and executing a contract for design professional services, a state public agency must follow specified procedures outlined in the Public Contract Code.

After notice has been given to the successful design professional firm that it has been selected, the state agency is required to provide written instructions to the firm that contain information regarding contract negotiations. Negotiations must begin within 14 days after the successful firm has been notified.

Once the negotiations are complete, a contract must be executed within 45 days. If the parties reach an impasse during the negotiations, the state agency may terminate the negotiations and begin negotiating with the next most qualified design professional firm.

Firms are encouraged to submit statements of qualifications and performance data to the state agency on an annual basis. In addition, the state agency must announce a statement of all projects requiring design professional services in publications of the respective professional societies.

The agency must evaluate current statements of qualifications it has on file along with others that may be submitted regarding the proposed project, and must conduct interviews with at least three of the qualified firms. Thereafter, the most highly qualified design professional is selected by the state agency. If the selection is conducted by a local agency that agency may follow the procedures required of state agencies, but the local public agency must enumerate the selection criteria and method of selection so as to avoid unnecessary bid protests and project delays.

The public agency must negotiate a contract with the "best qualified firm ... at compensation which the state agency head determines is fair and reasonable to the State of California or the political subdivision involved." If there are more than three successive negotiations with firms that do not result in a contract, then the state agency must select additional qualified firms and repeat the procedures. When the selection conducted is by a local agency, the agency may follow the procedures required of state agencies.

The provisions discussed above do not apply where the state or local agency determines that the services needed are of a more technical nature and involve little professional judgment and that issuing a request for bids (rather than statements of qualifications) would be in the public interest.

In general, the procedures for selecting construction managers follow the rules for designers. Firms proposing to provide construction project management services must provide evidence that the individual or firm, and its personnel carrying out on-site responsibilities, have expertise and experience in construction project design review and evaluation, construction mobilization and supervision, bid evaluation, project scheduling, cost-benefit analysis, claims review and negotiation, and general management and administration of a construction project.