DAVID GIONGCO Caltrans Local Assistance Engineer

Limitations for Consultants Serving in Management Roles?

The following question was asked by a consultant who is currently under contract as an agency’s public works director:

Can my firm submit a proposal for other agency design work while I act as the engineer of record for the agency?

In general, regulations and procedures are in place to promote a fair, open, and competitive environment. Assuming that the agency can ensure that the engineer (the public works director in this situation) is not on the selection panel or involved with the selection process, the consultant’s firm may submit proposals and compete for other agency work. Additional guidance and required forms are detailed in Chapter 10 of the LAPM.

If the consultant’s firm is selected and awarded for work, the agency may want to consider oversight and approval actions in addition to their normal process. These extra measures would further demonstrate compliance in the event of a project audit or review.

FHWA has provided examples of measures to mitigate the potenital for conflicts of interests with consultants serving in a management role on their Consultant Services site:

  • Conflict of interest guidance, policies, or procedures for consulting firms serving in roles as prime or sub-consultant on projects/contracts and associated impacts to a firm’s ability to participate in other roles, project phases, or contracts;
  • Conflict of interest identification, disclosure, and mitigation plans and procedures for both contracting agency and consultant staff throughout all stages of project development and delivery;
  • Consultant errors and omissions policies and procedures;
  • Policies and procedures (provided statutory framework permits) for a contracting agency to pursue a range of civil actions and penalties including fines, suspension, or debarment associated with fraud, waste, abuse, and identified conflicts of interest which were not disclosed; and
  • Provision for Hotline Complaints to the U.S. DOT Office of Inspector General (OIG).
  • Contract documentation which clearly defines each contracting party’s roles, responsibilities, and duties for a project.
  • Providing necessary resources and guidance to support management and oversight of conflict of interest concerns at a program and project level, such as providing a full-time contracting agency employee to serve in responsible charge of a Federal-aid construction project (as specified in 23 CFR 635.105).
  • Monitoring, evaluation, and reporting on compliance with Federal and State laws and regulations and approved policies and procedures with respect to conflicts of interest. To ensure overall compliance and no conflicts of interest exist, this oversight and quality assurance should include regular sampling and evaluation of contracts and be documented by reports which identify any remedial actions to address findings.
  • Training requirements/programs for contracting agency and consultant staff on contract management, ethics, conflicts of interest, laws and regulations, and approved policies and procedures.
  • Periodic review and discussion of contracting agency conflict of interest policies with representatives of the consultant engineering industry.

For additional information, reference Chapter 10 of the LAPM and FHWA’s Consultant Services site.