The University of Tennessee, Knoxville

Tennessee County Municipal Advisory Service

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Legal Requirements of Contracting for Professional Services

Reference Number: MTAS-676
Tennessee Code Annotated
Reviewed Date: March 02, 2016

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T.C.A. § 12-4-107 established requirements for procuring professional services for all state, county and municipal governments. The basic premise of this requirement is that the procurement of professional services will be based on recognized competence, not on competitive bidding. Cost is always an important consideration, but it should not be the first consideration in selecting professional services. Identifying and selecting the firm or individual best qualified to meet the city’s needs are the first considerations.

T.C.A. § 12-4-107. Contracts for professional services. 

(a) All contracts for architectural, engineering and construction services procured by any municipal corporation, county, state, development district, utility district, human resource agency, or other political subdivision created by statute shall meet the following requirements:

(1) In the procurement of architectural and engineering services, the selection committee or procurement official may seek qualifications and experience data from any firm or firms licensed in this state and interview such firm or firms. The selection committee or procurement official shall evaluate statements of qualifications and experience data regarding the procurement of architectural and engineering services, and shall conduct discussions with such firm or firms regarding the furnishing of required services and then shall select the firm deemed to be qualified to provide the services required.

(2) The selection committee or procurement official shall negotiate a contract with the qualified firm for architectural and engineering services at compensation which the selection committee or procurement official determines to be fair and reasonable to the government. In making such determination, the selection committee or procurement official shall take into account the estimated value of the services to be rendered, the scope of work, complexity and professional nature thereof.

(3) Should the selection committee or procurement official be unable to negotiate a satisfactory contract with the firm considered to be qualified, at a price determined to be fair and reasonable, negotiations will continue with other qualified firms until an agreement is reached.

(4) A city, county or utility district having a satisfactory existing working relationship for architectural or engineering services may expand the scope of the services; provided, that they are within the technical competency of the existing firm, without exercising this section.

(b) Construction of correctional facility projects of the state, a county, city, metropolitan government or town shall meet the following requirements:

(1) For construction of local correctional facility projects or additions to existing correctional facility buildings, the state, a county, city, metropolitan government or town may contract for construction management agent or advisor services. Construction management services that are provided for a fee and that involve preconstruction and construction administration and management services shall be deemed as professional services and may be performed by a qualified person licensed under the Contractors Licensing Act of 1994, compiled in title 62, chapter 6. Construction management services are to be procured for each project through a written request for proposals process through advertisement. The procurement and advertisement shall be in accordance with laws, regulations, and ordinances of the county, city, metropolitan government or town. The written request for proposals process shall invite prospective proposers to participate and shall indicate the service requirements and the factors used for evaluating the proposals. These factors shall include the construction manager's qualifications and experience on similar projects, qualifications of personnel to be assigned to the project, fees and costs or any additional factors deemed relevant by the procuring entity for procurement of the service. Cost shall not be the sole criterion for evaluation. The contract for such services shall be awarded to the best qualified and responsive responder. A construction manager is prohibited from undertaking actual construction work on a project over which the construction manager coordinates or oversees the planning, bid or construction phases of the project, except in instances when bids have been solicited twice and no bids have been submitted. If the construction manager can document that a good faith effort was made in each bid solicitation to obtain bids and no bids were received, then the construction manager may perform the construction work at a price agreed upon by the construction manager, the architect and the owner of the project. A governing body, at its own discretion, may perform work on the project with its own employees and may include the coordination and oversight of this work as part of the services of the construction manager. Sealed bids for actual construction work shall be opened at the bid opening and the names of the contractors and their bid amounts shall be announced.

(2) Construction management agent or advisor services for the construction of local correctional facility projects or additions to existing correctional facility buildings in accordance with subdivision (b)(2)(A) may be performed by:

(A) A general contractor licensed in this state pursuant to the Contractors Licensing Act of 1994, compiled in title 62, chapter 6; provided, that none of such services performed by a general contractor involve any of the services exempt from the requirements of title 62, chapter 6 as "normal architectural and engineering services" under § 62-6-102(4)(B) or (C), unless, with regard to the performance of any services defined as normal architectural and engineering services, the general contractor is also licensed as an architect or engineer under title 62, chapter 2; or

(B) An architect or an engineer licensed pursuant to title 62, chapter 2; provided, that none of such services performed by an architect or engineer involve any of the services required to be performed by a contractor within the definition of "contractor" under § 62-6-102, unless with regard to the performance of any services included within the definition of contractor, the architect or engineer is also licensed as a contractor under the Contractors Licensing Act of 1994, compiled in title 62, chapter 6.

(3) Construction work that is under the coordination and oversight of a construction manager shall be procured through competitive bids.
 

Furthermore, the U.S. Congress established the federal Administrative Services Act in 1949, mandating that the QBS process be used for all federally funded projects. In 1972, Public Law 92-582 (40 U.S.C. 11 at http://uscode.house.gov/download/pls/40C11.txt), commonly know as the Brooks Act, amended the Administrative Services Act to include the U. S. government’s selection procedures for the procurement of architectural and engineering services. The Brooks Act states

The Congress hereby declares it to be the policy of the Federal Government to publicly announce all requirements for architectural and engineering services, and to negotiate contracts for architectural and engineering services on the basis of demonstrated competence and qualification for the type of professional services required and at a fair and reasonable price.

The Brooks Act was further amended in 1988 to include land surveyors and landscape architects.

Simply put, federal law mandates that all architectural, land surveying, and engineering services required for a federally funded project be procured on the basis of competence and qualifications with fees to be discussed once the firm has been selected.

The QBS process is endorsed by a variety of national professional associations, including:

  • American Bar Association
  • American Public Works Association
  • Associated General Contractors of America
  • American Road and Transportation Builders Association
  • American Water Works Association
  • U.S. Army Corps of Engineers
  • American Consulting Engineers Council
  • American Institute of Architects
  • American Congress of Surveying and Mapping
  • American Society of Civil Engineers
  • American Society of Landscape Architects
  • National Society of Professional Engineers
  • Management Association of Private Photogrammetric Surveyors
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