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Procurement of Airport Development and Planning Contracts (2012)

Chapter: II. Develop Scope of Work and Technical Specifications

« Previous: I. Overview of Airport Procurement
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Suggested Citation:"II. Develop Scope of Work and Technical Specifications." National Academies of Sciences, Engineering, and Medicine. 2012. Procurement of Airport Development and Planning Contracts. Washington, DC: The National Academies Press. doi: 10.17226/22712.
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6 funding, the retainer contract must have been competi- tively procured with the specific project(s) and scope of work for those projects identified in the solicitation documents. Id. Another example of a potential conflict between the federal and state requirements is the use of local pref- erences. In the evaluation of bids or proposals, 49 C.F.R. § 18.36(c)(2) specifically prohibits the use of in- state or local geographical preferences. There is an ex- ception for architectural and engineering services, as long as there are sufficient qualified firms competing for the project. There is also an exception when a fed- eral statute mandates or encourages the consideration of a geographic preference. When evaluating whether a conflict exists, airports should consider that when a federal agency deems a conflict to exist, its interpreta- tion is given deference. See City of Cleveland v. Ohio, 2006 U.S. Dist. LEXIS 1083 (S.D. Ohio 2006) (FHWA was allowed to withdraw its federal funds when it de- termined that a local hiring preference law violated the federal prohibition against geographical or residency restrictions that tend to restrain competition). Oftentimes, the state and local requirements do not actually conflict with the federal requirements, but merely provide an additional layer of regulation. For example, the QBS procedures for architectural services are consistent with state laws that track the basic proc- ess, even when they add further details or qualifiers. States can adopt illustrative factors to be considered in determining the legitimacy of a bidder's claim of good- faith efforts to obtain disadvantaged business enter- prise subcontractor participation. Tennessee Asphalt Co. v. Farris, 942 F.2d 969 (6th Cir. 1991). Establishing those additional factors in advance of bid opening does not conflict with statutory requirements because it di- minishes the element of subjectivity by the procure- ment officers and thereby assists the bidders in under- standing what is required and how the contract award will be made. Id. When an airport project is funded solely from state or local funds, the airport must follow both state and local requirements, unless there is a direct conflict be- tween them, in which case the state requirements will govern. Although local governments cannot enforce a requirement that is contrary to state law, they may pass regulations that strengthen state law or fill a void when state law is silent. When determining which local government requirements apply to airport projects, the airport should look to the airport’s enabling act that establishes the airport as an entity. The enabling act will set forth the authority under which it is created and is a starting point for determining whether the air- port is subject to county or city ordinances or has the authority to develop its own local operating policies and procedures. Airports may be structured in a variety of ways, in- cluding 1) a department or division within a municipal- ity, such as the San Francisco International Airport and the Salt Lake City International Airport; 2) as a de- partment or division within a county, such as the Fort Lauderdale International Airport; 3) as a stand-alone authority, such as the San Diego County International Airport or the Metropolitan Washington Airports Au- thority; or 4) some hybrid, such as the Greater Orlando Aviation Authority, which is an agency of a city for some purposes but is an independent entity for most purposes. Reconciling conflicts between the various state and local requirements is beyond the scope of this digest as the analysis would be highly individualized for each airport. In general, if an airport is structured as an au- thority with the power to govern itself and is responsi- ble for its own revenues and expenditures, it is often not required to comply with the procurement require- ments of other local governments such as the city or county where it is located. In that case, the airport should have its own internal procedures that govern procurement of contracts. If, however, the airport is a department or agency of a municipality or county, it is likely subject to the procurement rules of its municipal- ity or county. Typically, if a municipality or county pro- vides funding for the airport’s use, the airport must comply with the procurement requirements of the fund- ing entity. II. DEVELOP SCOPE OF WORK AND TECHNICAL SPECIFICATIONS After the funding source and applicable funding re- quirements have been identified, the scope of work and technical specifications can be developed. In the initial phase of a procurement, airports must adequately de- fine the scope of the project, including the services to be performed and the equipment specification require- ments, if any. When FAA grant funds are used, airports must use the FAA-approved specifications when they exist, unless a modification is preapproved. See FAA AIP Handbook, Section 905(b); see also 49 C.F.R. § 18.36(c)(3)(i) (explaining that specifications cannot unduly restrict competition) and § 18.36(b)(4) (avoid unnecessary or duplicative items and consider consoli- dating or breaking out procurements to obtain a more economical purchase, including lease-versus-purchase alternatives, and any other appropriate analysis to de- termine the most economical approach). There are many sample forms that can be used to assist with developing the scope of work and specifica- tions. See, e.g., Central Region Airports Division, AIP Sponsor Guide, Sections 932 and 1220. Airports should ensure that the specifications do not unduly restrict competition. For example, requiring “too much” experi- ence for a fairly simple project or requiring extremely specific experience practically tailored to a very small number of firms would unnecessarily limit competition. See 49 C.F.R. § 18.36(c) (requiring “unnecessary” ex- perience is restrictive of competition). To simplify cer- tain procurements, 49 C.F.R. § 18.36 encourages the use of intergovernmental agreements. See 49 C.F.R. § 18.36(b)(5) (“To foster greater economy and efficiency, grantees and subgrantees are encouraged to enter into

Next: III. Determine Contract Type and Establish Contract Terms »
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TRB’s Airport Cooperative Research Program (ACRP) Legal Research Digest 16: Procurement of Airport Development and Planning Contracts provides guidance on how to determine which requirements apply to any given procurement process.

The report also includes an overview of the consequences for noncompliance with procurement laws or regulations in order to help airports better understand the inherent risks associated with various funding sources.

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