Qualifications Based Selection (QBS) laws were created to provide public owners the best available design professional services for the taxpayer’s money. It is an objective and fair process, and when well documented the process lends itself to the public’s scrutiny. However, many public owners no longer subscribe to the law as it is written, choosing instead to find cleaver ways of splitting hairs to subvert the law and extract fees from responding architects and engineers .
At one time, with little exception, this straightforward and easy to implement process was the method used by public agencies for design profession selection. However, in November 2000 a statewide ballot initiative – Proposition 35 – titled: Public Works Projects. Use Of Private Contractors For Engineering And Architectural Services – was passed. Proposition 35 amended Article XXII of the California Constitution and added Government Code Section 4529.12 which states:
“All architectural and engineering services shall be procured pursuant to a fair, competitive selection process which prohibits governmental agency employees from participating in the selection process when they have a financial or business relationship with any private entity seeking the contract, and the procedure shall require compliance with all laws regarding political contributions, conflicts of interest or unlawful activities.”
Before long various public agencies, seizing on the term “competitive selection process” as found in the newly created Government Code Section 4529.12, began requiring architects and engineers responding to a Request For Proposal (RFP) to include their service fees for the project as a mandatory condition for further consideration. To do so would mean, in essence, design professionals would have to choose between bidding on the project, and to not do so would mean disqualification for failure to meet the RFP requirement criteria; a Hobson’s choice.
The obvious problem and concern with this approach to design professional selection is that unlike the construction phase of the project, which can be competitively bid because a set of plans exists on which bids are based, there are no such plans or specifications during the procurement phase on which to base design fees. At this stage, beyond the project owner’s thoughts and concepts, no one really knows what the project will entail. When design firms are required to submit time and fee proposals with little scope of work information, the proposals are not really comparable. Each proposal submitted may be based on a different set of assumptions. Additionally, once a fee is included, there is a strong tendency for the agency to look at the bottom line figure, and for the fee to have an undue and often decisive weight in the selection decision.
Not only does this approach place the client and the design professional in an adversarial relationship, it can also lead to confusion, disruption and the potential for a failed project – none of which we, as professionals, should stand-by and allow to occur.
The Council’s QBS education and enforcement efforts greatly depend on the assistance of members. Each month, the AIACC receives, and responds to, a number of RFP’s/RFQ’s that violate Qualifications Based Selection (QBS) law by illegally using fee as part of the selection process in hiring an architect for a public project. These RFP’s/RFQ’s are issued mostly by local agencies and school districts that are either unaware of QBS law, or simply choose to ignore it. Our efforts to educate and convince public agencies to repeal and correct illegal RFP’s vary in success due to a number of circumstances.
Undoubtedly, the troubled economy is encouraging this type of behavior; with the goal of reducing soft costs, agencies issuing illegal RFP’s/RFQ’s can taking advantage of the limited amount of potential projects available, forcing architects willing – and in many instances needing – to respond to remain in business. And that’s not much of a choice. How are you responding to these?