The Department is required by Code of Ala. 1975, §41-4-124(c) to develop rules for the procuring of professional services consistent with principles that promote fairness, competition, transparency, integrity, and value in the procurement process.

1. (1) Architect/Engineer Professional Services.

   1. (a) For contracting for Architect or Engineering Services where federal funds will be used, in whole or in part, to make payment under the contract award, the Department will follow the procedures as prescribed in the Procedure for Selection of Architect and/or Engineering Services, which are procedures approved by Federal Highway Administration in compliance with 23 C.F.R. Part 172.

   2. (b) For contracting for Architect, Engineering, or Land Surveyor Services where state funds will be exclusively used to make payments under the contract award, the Department may use the procedures as prescribed in the Procedure for Selection of Architect and/or Engineering Services or, alternatively, such services shall be procured in accordance with competitive, qualification-based selection policies and procedures. Selection policies and procedures shall be based on factors to be developed by the Department which may include, among others, the following:

      1. 1. Specialized expertise, capabilities, and technical competence, as demonstrated by the proposed approach and methodology to meet project requirements.
      2. 2. Resources available to perform the work, including any specialized services within the specified time limits for the project.
      3. 3. Record of past performance, quality of work, ability to meet schedules, cost control, and contract administration.
      4. 4. Availability to and familiarity with the project locale.
      5. 5. Proposed project management techniques.

      6. 6. Ability and proven history in handling special project contracts.

         Notice of need for professional services shall be widely disseminated to the professional community in a full and open manner. The Department shall evaluate such professionals that respond to the notice of need based on the Department's qualification-based selection process criteria. The Department shall then make a good faith effort to negotiate a contract for professional services from the selected professional after first discussing and refining the scope of services for the project with such professional. The Department will develop procedures to implement this subsection, including without limitation, proposal content, selection criteria, prequalification, applicant interview, proposal evaluation, proposal negotiation, selection and award, which will be outlined in each Department notice of need, request for qualifications, or request for proposals.

   3. (c) A contract awarded under this section may include, within its scope of work, services that are not Architect, Engineering, or Land Surveyor Services so long as the work is incidental to such Architect, Engineering, or Land Surveyor Services being rendered under the contract award.
   4. (d) The Procedure for Selection of Architect and/or Engineering Service is available on the Department's website.

2. (2) Attorney Services.

   1. (a) Attorneys retained to represent the Department, or its officials or employees, in litigation shall be appointed by the Attorney General in consultation with the Governor from a list of attorneys maintained by the Attorney General. All attorneys interested in representing the Department, or its officials or employees, may apply to be included on the list. The selection of the attorney or law firm is based upon the level of skill, experience, and expertise required in the litigation and the fees charged by the attorney or law firm will be taken into consideration so that the Department receives the best representation for the funds paid. Fees will be negotiated and approved by the Governor in consultation with the Attorney General. Maximum fees paid for legal representation that does not involve a contingency fee contract may be established by executive order of the Governor.
   2. (b) Attorneys retained by the Department to render nonlitigation legal services will be selected from a list of attorneys maintained by the Legal Advisor to the Governor. All attorneys interested in representing the Department may apply and shall be included on the list. The selection of the attorney or law firm is based upon the level of skill, experience, and expertise required for the services, but the fees charged by the attorney or law firm will be taken into consideration so that the Department receives the best representation for the funds paid. Fees for such services will be negotiated by the Department and will be subject to the review and approval of the Governor or the Director of Finance when so designated by the Governor.

3. (3) Other Professional Services

   1. (a) Unless determined otherwise by the Director, professional services will be procured by competitive sealed proposals through the Department. This process is referred to as Transportation Request for Proposals (TRFP).
   2. (b) Proposals will be solicited through a request for proposals.
   3. (c) Adequate public notice of the request for proposals will be given a reasonable time prior to the date set forth in the opening the received proposals. The Director, or his/her designee, may, at his discretion, shorten the time for public notice where the shortened notice period is in the best interest of the Department.
   4. (d) Proposals will be opened so as to avoid disclosure of contents to competing offerers prior to contract award. A register of proposals will be prepared and will be open for public inspection after award of the contract.
   5. (e) A request for proposals will state the relative importance of price and other factors and subfactors, if any.
   6. (f) Discussions may be conducted with responsible offerers who submit proposals determined by the Director, or his designee, to be reasonably competitive for award to assure full understanding of, and responsiveness to, the solicitation requirements. Any determinations of the Director are not subject to review. Offerers will be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions of proposals may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there may not be disclosure of any information derived from proposals submitted by competing offerers.
   7. (g) Contracts will be awarded to the responsible offerer whose proposal conforms to the solicitation and is determined in writing to be the most advantageous to the state, taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria will be used in the evaluation. Public notice of the award of a contract will be given in the manner described in the request for sealed proposals.

   8. (h) The Director, or his/her designee, in his/her discretion may provide debriefings that furnish the basis for the source selection decision and contract award.

      1. 2. After receipt of the responses to the request for qualifications from prospective offerers, all qualified offerers, as determined by the Director, or his/her designee, will have an opportunity to submit proposals. The determination regarding which offerers are qualified is not subject to review.
      2. 3. If a professional service provider is prohibited by law or policy from submitting proposals in response to a request for proposals, the Director may utilize the request for qualifications process to determine the awardee.
      3. 4. Notwithstanding any of the procedures for procurement of professional services proscribed above, and except for engineering, architectural, and/or land surveying services where federal funds will be used, in whole or in part, the Director may procure professional services as follows:

      (i)1. Before soliciting proposals, the Director, or his/her designee, may authorize issuance of a request for qualifications from prospective offerers. The request will contain, at a minimum, a description of the scope of work to be solicited by the request for proposals, the deadline for submission of information, and how prospective offerers may apply for consideration. The request will require information concerning the prospective offerer's product specifications, qualifications, experience, and ability to perform the requirements of the contract. Adequate public notice of the request for qualifications will be given in the same manner as provided in subsection (c) of this rule.

   9. (a) A  contract may be awarded for professional services without competition when the Director determines in writing that there is only one source for the required the professional service. In any event, sole source contracts may not exceed one year unless the Director determines in writing that there continues to be only one source for the required professional service.
   10. (b) Should an emergency affecting the public health, safety, convenience, or the economic welfare of the State of Alabama arise, the professional services required to alleviate the emergency situation may be procured from any qualified professional service provider without following the process or procedure authorized by this section. The Department shall document need for the emergency procurement, the qualifications of any person(s) or firm(s) under consideration, and the reasons for selection of the person(s) or firm(s). The Department may negotiate with the selected person(s) or firm(s) the scope and fair and reasonable compensation for the work to be performed with final concurrence and approval by the Director.
   11. (c) Any procurements not exceeding the small purchase amount as defined in Alabama Administrative Code §355-4-3-.04 may be made in accordance with small purchase procedures as prescribed under that chapter. A procurement may not be artificially divided so as to constitute a small purchase under this rule. Small purchases require the solicitation of at least three (3) proposals from any entity known for supplying the needed service, and the Department may select the returned proposal for the purchase that will be of best value for the Department. Prohibition of artificial division under this subsection does not prohibit multiple awards to independent person(s) and/or firm(s) from a single solicitation.
4. (5) Any agreement entered into pursuant to this section where payment is made on a cost-plus-fixed fee basis is not a cost-plus contract as described in Code of Ala. 1975, §41-4-143 and is thus not prohibited by that provision.

Author: William F. Patty, Chief Counsel

Statutory Authority: Code of Ala. 1975, §§23-1-40, 23-1-48, 23-1-50, 23-1-50.1, 23-1-51, 23-1-53, 23-1-59, 23-1-62, 41-4-124, 41-4-126.

History: New Rule: Published November 30, 2022, effective January 14, 2023.