Volume 3, Chapter 2
- 2.3 CONTRACT NEGOTIATIONS AND APPOINTMENTS
- 2.4 CONSULTANT INSURANCE REQUIREMENTS
- 2.5 AGREEMENT EXECUTION
- 2.6 PROJECT FILE RECORDS
- 2.7 CONSULTANT SERVICES NOT COVERED BY PCC 10510.4-10510.9
- 2.8 DESIGN PROFESSIONAL APPOINTMENT PROCEDURES
- 2.9 AUTHORITY TO APPOINT EXECUTIVE DESIGN PROFESSIONALS
- 2.10 SUBMITTING A REQUEST FOR AN EXECUTIVE DESIGN PROFESSIONAL APPOINTMENT
The selection of design professionals is subject to University policy and guidelines. State law requires design professionals and specified other consultants to be selected based on the procedures in the Public Contract Code as implemented by University policy.
2.1 SUPPLIER DIVERSITY
“It is University of California policy that no firm seeking to do business with the University shall be discriminated against because it is owned by a person or persons of a particular race, color, ancestry, national origin, religious creed, sex, age, marital status, mental and/or physical disability, medical condition, sexual orientation, status as a Vietnam era veteran or disabled veteran, or within the limits imposed by law or University regulations, because of citizenship.” (see FM1:5.1).
Under the terms of federal or state funding for certain design and construction work, the University may be required to take special action regarding awards to small, diverse and disadvantaged business enterprises.
Procedures for compliance with project funding requirements and statistical record keeping and reporting are set forth in Business and Finance Bulletin 43 “Materiel Management,” Section III, Part2:“Supplier Diversity.” Where required as a condition of federal- or state-funded contracts or grants, the University will continue to set goals and timetables for small (SBE), disadvantaged (DBE), women-owned (WBE), and disabled veteran (DVBE) business enterprises; maintain statistics on utilization of such businesses; and will require self-certification. In addition, the University will continue to use outreach programs to assure equality of opportunity.
The definitions for SBE, DBE, WBE, and DVBEs may be found in BUS-43, Section II, Definitions.
The University is annually required to produce statistics on its use of small, diverse and disadvantaged business enterprises. Each Facility should maintain records containing, at a minimum:
- Total dollars awarded to all construction contractors.
- Dollars awarded, by category, to small, diverse and disadvantaged contractors and subcontractors.
- Dollar awards expressed as a percentage of the total for each business category.
The above annual statistical information shall be obtained from the Self-Certification form and the Report of Subcontractor Information (available under Contract Templates - Construction for each contract type) that is submitted to the University at the time of contract award. This information shall be submitted to the person at each campus designated as the Small Business Coordinator not later than August 15th each year in the following form:
- Total annual amount awarded, by contracting category, for purchasing, construction and design professionals.
- The separate dollar amount awarded in each contracting category for small, diverse and disadvantaged business enterprises.
2.2 PROCEDURES FOR CONSULTANT SELECTION
-Public Contract Code 10510.4 - 10510.9, “Contracts with Private Architects, Engineering, Environmental, Land Surveying and Construction Project Management Firms.”
-Public Contract Code 10515 – 10518, “Conflicts of Interest.”
University policy "Capital Improvement Program Management," revised November 1, 1993, on the use of design professionals states in part:
“University policy is to have design work for major capital improvement projects performed by design professionals unless an exception to have the work performed by Facility personnel is specifically approved by the Chancellor or Vice President Agriculture and Natural Resources.”
“Design of all other projects, including minor capital improvement projects, may be performed by Facility personnel, design professionals, or Facility personnel supplemented by consultants. The Lawrence laboratories, because of laboratory requirements, may perform any design work with laboratory personnel.”
In considering whether or not to approve an exception to allow Facility personnel to perform design work for a major capital improvement, the Chancellor or Vice President Agriculture and Natural Resources should consider the University requirement that design professionals carry substantial liability insurance. When the University uses its employees to design projects, it does not have recourse to such insurance. In the absence of a contract with a design professional, the University therefore assumes responsibility for the financial consequences of its employee designer’s negligence and other performance failures, such as non-timely production of design deliverables, non-compliance with applicable code, or failure to provide timely responses to inquiries from the contractor during construction. Assumption of these risks and their potentially substantial financial consequences may not be appropriate for many University projects.
The Public Contract Code mandates certain procedures, described in more detail in this section, covering the selection of, and contracting with, specified types of consultants, including design professionals. The following procedures for the selection of consultants apply to all capital improvement projects, including renovation projects, in which the University is involved in the selection of the consultant. The selection process for consultants varies with anticipated consultant contract sum and the type of consultant services. (see RD1.1, Consultant Selection Process). This is now covered in the flowcharts.
Facilities shall informally encourage firms that are interested in pursuing contracts with the University for the performance of Covered Services (defined below) and other project-related services to submit to each University location annually a statement of qualifications and performance data. Contact information for firms submitting such statements of qualifications and performance data shall be maintained by each Facility as an applicant pool for use in accordance with section 2.2.2, below.
When Advertising is Required:
A Facility may advertise specially for consultants for any project, regardless of project cost. However, advertising is mandatory for a consultant contract with a sum of fees plus reimbursables (hereinafter referred to as “Contract Sum”) reasonably anticipated to be over $100,000 for Covered Services. Covered Services include
- architectural, landscape architectural, engineering and land surveying services;
- environmental services performed in connection with project development and permit processing;
- construction project management services for management and supervision of work performed on University construction projects; and
- real property development services in connection with the development of a developer-owned project on land owned or controlled by the University.
Advertising is also required for any contract for Covered Services, even if the Contract Sum is estimated to be below $100,000, if the type of project or the type of services required was not identified in the annual announcement placed by the University to solicit interested consultants to perform such services (the “Annual Announcement”). Each year an applicant pool is created from firms responding to such Annual Announcement. If the firm is deemed qualified, it is added to the applicant pool. (See section 2.2.2, below.)
Any advertisement is to include the following language to convey the University's policy to ensure equal opportunity in University contracting: "Every effort will be made to ensure that all persons have equal access to contracts and other business opportunities with the University within the limits imposed by law or University policy."
To expedite the design process, a Facility may advertise for design professionals prior to (i) full budget approval or, (ii) approval to expend preliminary plans funds (“P” approval). However, a Facility cannot appoint an Executive Design Professional (“EDP”) or execute an Executive Design Professional Agreement (“EDPA”) prior to one of these two approvals. The advertisement should cite the status of the project (e.g., if not yet approved, identify it as a “proposed” project and state that final selection and appointment is contingent upon project approval and funding).
Where to Advertise:
Advertisements must be placed in:
- The State Contracts Register, AND
- In publications of the respective professional societies and organizations of persons that perform those services.
If the applicable professional societies and organizations do not maintain a statewide publication for this purpose, the Facility shall advertise on the Facility’s own website.
If the Facility does not maintain a website for such a purpose, the advertisement shall be placed on the website maintained by Budget and Capital Resources, Office of the President.
In addition to the above requirements, advertisements may be placed in other publications, including newspapers of general circulation.
Advertisements must be posted at least two weeks prior to any deadline for the submittal of documents in response to such advertisements. If the consultant services can be performed by more than one type of covered consultant, the advertisement should be placed in the publication of each applicable society or organization that offers such services.The advertisement requesting qualifications must include:
- The type of consultant service required.
- The title and a brief description of the project.
- The project’s estimated construction cost and gross square footage, (if applicable).
- The Facility name, directions for obtaining detailed submittal requirements, and contact information for questions.
- The deadline (date and time) for receipt by Facility of detailed submittals.
- A statement that each candidate firm will be required to show evidence of its equal employment opportunity policy.
2.2.2 Applicant Pool
Each Facility must maintain a current list of consultants (Applicant Pool). The Applicant Pool will include all consultants that submitted current statements of qualification and performance data to the Facility, including those who submitted in response to the Annual Announcement. Once an Applicant Pool is established, it may be useful to subdivide it by specialized experience, qualifications, and production capability.
For a consulting contract with a contract sum reasonably anticipated to be under $100,000, if the type of project and the type of services required were identified in the Annual Announcement, the Facility administrator with delegated authority to approve the selection of construction-related consultant services (“Responsible Administrator”) may select a consultant from the Applicant Pool and/or from any other source the Responsible Administrator may wish to use. The Facility must preclude favoritism in the selection process and ensure compliance with the University Policy to Ensure Equal Opportunity in Business Contracting. For consultant services in excess of $100,000 but not included in the Covered Services, see section 2.7, below.
2.2.3 Screening Committee
The Screening Committee shall be composed of one or more persons (including an appropriate staff design professional, if the consultant will be a design professional.) All members of the Screening Committee must be familiar with either the technical requirements of the project or the level of professional competence that will be required of the consultant that is selected.
2.2.4 Screening Process
For consulting contracts with a Contract Sum reasonably anticipated to be over $100,000, the Screening Committee shall develop a list of at least three consultants who appear to be the most qualified to provide the services under consideration, selecting from the Applicant Pool and from those firms that responded to the project RFQ following its advertisement. The list shall be submitted for approval to the Responsible Administrator. Once approved, the Responsible Administrator shall forward the list to the Selection Committee.
2.2.5 Selection Committee
For a consulting contract for one or more of the Covered Services with a Contract Sum reasonably anticipated to be over $100,000, a Selection Committee must make its recommendations to the Responsible Administrator from the approved list prepared by the Screening Committee, with consultants added in accordance with sec. 2.2.6, below, if appropriate. The Selection Committee convened must have at least three members, including one member of the Screening Committee, and as many of the following interests, and in such numbers, as is deemed appropriate to the project under consideration: Facility faculty, students, and administrative staff. Members should be selected for their expertise and knowledge of the project requirements.
2.2.6 Selection Process
The Selection Committee must notify the candidate firms on the approved list that they are being considered for selection and that they must respond, in writing, to the Selection Criteria in the Qualification Packet.
Each Facility is responsible for developing its own consultant Qualification Packet that includes appropriate Selection Criteria and a form of Statement of Qualifications (see RD1.1). The Packet's forms must be designed to ensure that responses will provide sufficient information to allow an equitable assessment of the qualifications necessary for the services required. At a minimum, the Qualification Packet must include the following:
Selection Criteria (Attachment A). This is a list of the criteria a Facility uses to review the qualifications of a consultant.
Statement of Qualifications (Attachment B). This form, to be completed by each consultant candidate firm, contains basic information about the firm wishing to do business with the University.
The Qualification Packet must require the consultant to disclose all work performed on any University project in the previous 5 years and whether or not any disputes, claims or litigation arose from such work. The Facility may use the Consultant Experience Form (included in the Selection Criteria) for this purpose. Any Facility considering hiring a consultant who discloses claims or litigation should contact the Office of the President and/or the project manager of the project on which such claims or litigation arose to discuss the underlying facts and circumstances. If a Facility decides to hire a consultant involved in a claim or litigation with the University, such consultant shall be required to agree in writing not to introduce such new hiring as evidence in the pending claim or litigation.
The Selection Committee must review the submitted materials from each consultant on the approved list and may request additional or more current information about a firm and its experience. The Selection Committee must review the qualifications of each consultant being considered on the basis of the Selection Criteria. The Selection Committee may add other consultants to the approved list with the concurrence of the Screening Committee and the Responsible Administrator. All such added consultants must respond to the Selection Criteria and be evaluated in the same manner as those consultants previously on the approved list. The Selection Committee shall conduct discussions with no fewer than three firms (provided that at least three qualified firms submitted their qualifications) regarding anticipated concepts, the relative utility of alternative methods of approach for furnishing the required services, and such other issues as may be appropriate. Interviews conducted with the consultants on the approved list satisfy the requirement for discussions. The discussions may be conducted as in-person interviews, or may consist of an exchange of oral or written communications. Based on the Responsible Administrator's instructions, the Selection Committee shall present a recommended list of the firms with which it conducted discussions. The list will be in order of ranked qualification based upon the Selection Criteria, and will include no fewer than three of the firms deemed to be the most highly qualified to provide the services required. If the ranked list includes fewer than three firms, or if fewer than three firms submitted qualifications, then the referral must be accompanied by documentation showing the efforts used to generate submissions from additional firms. The Responsible Administrator will review and approve the recommended list or return the list to the Selection Committee with directions for further action.
2.2.7 Conflict of Interest
Participating as a member of a Screening or Selection Committee shall constitute "making or participating in the making of a decision." Requirements governing such decision-making and financial conflict of interest are found in the University's Conflict of Interest Code and Business and Finance Bulletin G-39, and shall be observed when acquiring consultant services. Specific prohibitions include rebates, kickbacks, or other unlawful consideration. University employees with a relationship to a person or business entity seeking a contract under these provisions are prohibited from participating in the selection process.
2.2.8 Avoiding Follow-On Contracts
Public Contract Code sec. 10515 et seq. prohibits a consultant who has provided services on a project from bidding for or being awarded another contract to perform related services for the same project.
However, architectural, landscape architectural, engineering, environmental, land surveying, construction project management, or real property development services (defined in 2.2.1 as Covered Services) may qualify for an exception to this ban. The exception to the ban that the statute allows for the Covered Services only applies to the selection of consultants in accordance with the procedures described in this chapter. Facilities must be careful to navigate the statutory requirements if they wish to qualify for such an exception.
As an example, a firm providing architectural services for bridging documents on a design/build delivery method project would be precluded from participating on the design/build team because the selection of a design/build team is governed by contractor selection statutes using a competitive bid process, not the quality based consultant selection process described herein. This same firm would not, however, be precluded from consideration in a separately advertised request for a complete project design, which has no construction competitive bid element. In either case, the Facility must follow the selection process described in this section 2.2 and must comply with the notice requirements in 2.3, below.
(For questions regarding legal restrictions on consultant contracting, contact the Office of the President, Construction Services or your designated OGC Construction Counsel.)
2.3 CONTRACT NEGOTIATIONS AND APPOINTMENTS
After providing notification to the firm ranked first on the Selection Committee's list ranking the top candidate firms, the Responsible Administrator or his or her designee shall provide written instructions for the negotiations that are to follow, including an instruction to submit a cost proposal for the services required. These instructions shall provide the firm with necessary information that shall allow the negotiations to proceed in an orderly fashion. If the Facility advertised the services required for additional components of the project, but intends to enter into an initial agreement covering only the first phase or component, it must notify the consultant in writing that the negotiations will only address that first phase or component. The Facility should provide an estimate of the time frame for commencing negotiations for any additional agreement covering the remaining services. (see 2.2.8 above)
Negotiations should begin within 14 days after the successful firm has been notified of its selection or upon receipt of the cost proposal if such receipt occurs later. The consultant should be notified if additional time is necessary to begin negotiations. If the Facility estimates that it will be unable to commence negotiations within the required 14 days it must notify the consultant in writing.
Should the Facility be unable to negotiate a satisfactory contract with the firm considered to be the most qualified, at a price the Facility determines to be fair and reasonable, negotiations with that firm should be formally terminated in writing. The Facility should then undertake negotiations with the second most qualified firm, subject to the same requirements and process described above. If the Facility is unable to negotiate a satisfactory contract with the second most qualified firm, the Facility should terminate negotiations and then undertake negotiations with the third most qualified firm.
Should the Facility be unable to negotiate a satisfactory contract with any of the selected firms, it should select additional firms from the pool considered by the Selection Committee, in order of their ranked qualification based upon the Selection Criteria, and continue negotiations in accordance with the procedures herein until an agreement is reached. If no agreement is reached with any of the applicants in the pool considered by the Selection Committee, then the selection process shall begin anew.
2.4 CONSULTANT INSURANCE REQUIREMENTS
-Business and Finance Bulletin, BUS-63 Exhibit D, University of California, Office of the Executive Vice President-Chief Financial Officer, Oakland, CA.
Guidelines for minimum insurance requirements can be found in the latest edition of Insurance Requirements/Certificates of Insurance (Business and Finance Bulletin, BUS-63, Exhibit D). Levels of insurance are established based on the degree of risk and the extent of the University’s exposure in the event of a loss. The insurance limit requirements in BUS-63 Exhibit D are intended as guidelines to assist Facility Risk Managers, in conjunction with Responsible Administrators, to set appropriate limits for each project, once risk has been identified and evaluated. For this reason, it is essential that contract administrators and project managers consult with Facility Risk Managers in setting insurance limits.
2.5 AGREEMENT EXECUTION
Upon the completion of negotiations and confirmation of appropriate insurance coverage, the Facility and the consultant shall proceed to execute an agreement. The agreement shall be provided to the consultant by the Facility within 45 days after negotiations have been concluded. If the Facility estimates that it will be unable to complete the agreement within the required 45 days it shall notify the consultant. If the consultant fails to execute the Agreement within fourteen days of receipt or withdraws from the process, then the Facility may formally terminate the negotiations with that consultant and undertake negotiations with the second most qualified consultant.
2.6 PROJECT FILE RECORDS
For each consultant screening and selection process, the following must be preserved in the project file:
- Proof of publication for each public notice.
- The applicant list prepared by the Screening Committee and approved by the Responsible Administrator.
- The consultant Qualification Packet.
- The names of Screening and Selection Committee members.
- The Selection Committee's list in order of ranked qualification based upon the Selection Criteria.
- A copy of the Responsible Administrator’s written instructions for negotiation.
- A copy of each appointment letter, if applicable.
- The original executed agreement (see FM3:3).
2.7 CONSULTANT SERVICES NOT COVERED BY PCC 10510.4 - 10510.9
The Public Contract Code, Sections 10510.4 - 10510.9 requires the University to utilize the specified selection and contracting procedures described above for contracts with consultants for Covered Services (as defined in 2.2.1, above). The Public Contract Code also exempts contracts that comply with these requirements from the follow-on contracting prohibitions of PCC 10515.
The procedures in this Chapter are applicable to all consultants providing Covered Services on projects. Specific procedures for real property development services are not included in this manual but may be found on the website for the Office of the President, Real Estate Services Group at SB41 compliance. Contact Construction Services, Office of the President if consultants need to be retained to provide other than Covered Services and for those whose services are not expected to exceed $100,000 in cost but were not included in the Annual Announcement.
Consultant services that do not fall within the Covered Services and do not follow the procedures described in Public Contract Code, Section 10510.4 et seq., are not exempt from the application of the prohibition against specified contracting practices set forth in PCC 10515. Refer to section 2.2.7, above, for more information.
2.8 DESIGN PROFESSIONAL APPOINTMENT PROCEDURES
University procedures for design professional appointment apply to executive architects, executive landscape architects, and executive and consulting engineers (structural, civil, mechanical, and electrical). The authority and procedure for appointing executive design professionals (following the selection process described above) is described in 2.9 and 2.10 below. (Note: When the term "executive" is applied to design professionals, the term refers to the primary design professional on a project and the one responsible for the overall design.) An executive design professional shall be retained using an Executive Design Professional Agreement (EDPA) for all phases of project design, including schematic design.
2.9 AUTHORITY TO APPOINT EXECUTIVE DESIGN PROFESSIONALS
-Standing Orders of The Regents, 100.4(y) & (dd) , Revision 18, August 1993.
Standing Order 100.4(y) provides as follows: “The President is authorized to appoint and execute necessary agreements with executive architects, executive landscape architects, and executive and consulting engineers for approved projects.”-Standing Orders of The Regents, 100.4(y) For the purpose of exercising the authority delegated in SO 100.4(y) (and redelegated in DA 2596), “approved projects” shall mean those projects with full budget approval or approval to expend preliminary plans funds (“P” approval) from the appropriate level of authority.
Standing Order 100.4(dd) provides; “Except as otherwise specifically provided in the Bylaws and Standing Orders, the President is authorized to execute on behalf of the Corporation all contracts and other documents necessary in the exercise of the President's duties…” –Standing Orders of The Regents, 100.4(dd)
The authority delegated to the President in SO 100.4(y) and (dd) was redelegated in DA 2596 for all projects with approved budgets on property owned by the Regents or on property which will be owned by the Regents upon completion of the project:
(i) to the Executive Vice President-Business Operations who redelegated it to the Vice President for Budget and Capital Resources . The Vice President for Budget and Capital Resources redelegated it, in turn, to the Associate Vice President-Capital Resources Management; and,
(ii) to the Chancellors, Director-Lawrence Berkeley National Laboratory and the Vice President-Agriculture and Natural Resources for projects with a total individual project cost not exceeding $60,000,000, subject to design and design professional requirements set out herein.
2.10 SUBMITTING A REQUEST FOR AN EXECUTIVE DESIGN PROFESSIONAL APPOINTMENT
A Facility requesting the appointment of an executive design professional for a project in excess of $60,000,000 must submit a letter to the Office of the President, Associate Vice President-Capital Resources Management, recommending the appointment of the executive design professional. The letter must include the following components:
- project name, plant account number, and brief descriptive background;
- campus contact for related information;
- copy of the Request for Qualifications;
- a brief description of the outreach, advertising and selection process related to the project, including the number of Statements of Qualification received and the number of firms shortlisted for interview;
- name and office location of recommended executive design professional;
- copy of the recommended firm's completed Consultant Qualification Packet;
- the negotiated fee for basic services, the project construction cost, and the fee for basic services expressed as a percentage of construction cost (See Executive Design Professional Fee Guidelines available from Design Services, Capital Resources Management, Office of the President );
- comment on project conditions that justify any fee above the guideline amount;
- description of any special considerations taken into account during the selection process.
For all projects in excess of $60,000,000, the information required in this section 2.10 must be approved in writing by the Chancellor or other Responsible Administrator with delegated authority under DA 2596 as part of any request for appointment of an Executive Design Professional and execution of an Executive Design Professional Agreement.
Approval of the recommendation is contingent on either full budget approval or “P” approval and adherence to University policies and guidelines for the selection of executive design professionals. If an exception to the University guidelines is being requested, the reasons for the exception must be stated in the recommendation letter and the appropriate background materials enclosed.
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Revised May 26, 2016 (Change No. FM 16-002-P)