Consultant Coordinator’s Meeting

November 5, 2013

12:30–2:30PM

Water’s Edge – Conferences Rooms A & C

MEETING MINUTES/NOTES

Item 1 – TTAA Estimates

Presented by: Lynn Poirier

The Taxpayers’ Transportation Accountability Act (TTAA) has been in law since 2008. This law requires MnDOT to compare in-house estimate costs, vs. outsourcing costs, when considering utilizing a consultant for work. This is required on projects over $100K, but only for certain types of work (excluded work types include Design-Build, hydraulic, geotechnical, contaminated soils investigations and remediation services). If a contract exceeds $250K, MnDOT can ONLY enter into the contract if the outsourcing costs are lower than the in-house estimated costs (while still required if a contract falls between $100-250K, there is more flexibility).

In FY12, MnDOT processed the most TTAA requests, at 49. So far in FY14, there have already been 24 (while in FY13, there were only 19). MnDOT staffs for an “average” construction program, so needs for outsourcing and TTAA requests generally increase if MnDOT receives additional sources of funding (Better Roads, etc.).

The TTAA reporting is discussed with AFSME on a quarterly basis, with ACEC on an annual basis, and by September 1st of every year an annual report is due to the legislature to report on the comparisons and the end results. Sue Mulvihill and Mike Barnes are heavily involved in the TTAA program and handle any issues that come out of the reporting/overall program.

For FY14, the TTAA form has been updated, and will be going out next week for use. Additionally, rates have been updated as a result of FY13 salary increases and overhead percentages.

The finance office is always open to suggestions on the form and process, and Lynn welcomes that information.

Item 2 – TTAA Process

Presented by: Brad Hamilton - See Handout

The TTAA process instructions are available on consultant services website, under the training and reference document section. By statute, consultant services is required to track everything, and ensure that the process is being followed. The process instructions are a great tool to follow as you process your contract. Brad is always available to help through the process, and Lynn is a great contact for in-house estimate assistance.

Please note; we MUST post apparent successful responder information as soon as section is approved. By law, it must be posted within 24 hours – so it is vital administrators are e-mailing their successful responder information to Brad ASAP once they receive approval of the selection.

Also note, the ONLY people that can sign off on the commissioner’s determination for TTAA project are the Commissioner, and the Deputy Commissioner(s), so this process can take longer than anticipated, depending on their availability. You should not route your contract until the commissioner’s determination is received. However, in valid rush circumstances, you may write your contract, and obtain the consultants signature – however, you CANNOT send that contract to consultant services until the determination is received.

Item 3 – Master Contracts

Presented by: Brad Hamilton, Dawn Thompson, Kelly Arneson

Pre-Letting GEC Master Contract Program

Process instructions for the new GEC Pre-Letting Master Contract Program are available online. The process checklist included is very helpful in guiding districts along the process. This program is ONLY for fast-paced projects, which need to be completed in order to meet a letting date. Otherwise, you must use programs and processes already in place (pre-qualification program, solicitations, etc.). This process is only for projects over $100K, as there is no time saved under that level.

Note that the Consultants’ assigned districts are NOT set in stone, but they are the ideal. Chris Roy has been tasked with serving as the Program Manager for this program in order to ensure work is distributed as evenly as possible, and use of the program is appropriate. Kelly Arneson in Consultants Services will write any and all Work Order Contracts under this program so that they are all done centrally. Also, Pre-Award Audits are required for all primes and subcontractors utilized on the program. The Prime Contractors have already completed their audits; however, subcontractors can be added to the program at any time, so there is no guarantee that a subcontractors audit has been completed at this time. DBE participation is being highly encouraged on the program.

The program is still fairly new, and suggestions are always welcomed.

Construction Administration and Related Services

Discussions have started regarding the development of a new Master Contract program, for construction administration and related services. This potential program is in the very beginning stages of development, but it is expected that the program will closely mirror the GEC Pre-Letting program. However; while Consultant Services would set up the program and Master Contracts, Work Order Contracts will NOT be written centrally – districts will prepare and process those Work Order Contracts. Some initial suggestions for the program include: having set Fixed Fee percentages for each firm/work type and processing most, if not all, contracts as Fixed Hourly Rate.

Chris Roy will most likely aid in managing this program as well, with Joel Williams included as a technical expert. It is important to remember that, even under this program, a consultant who acted as a final designer on a project, cannot do the construction administration piece. So, rotation and distribution of work under this program would be a much different process.

Item 4 – Contract Management Updates

Affirmative Action/Human Rights

Presented by: Jim Cownie

In regards to the Affirmative Action Certification Form (closely related to the Human Rights Certificate) – the Minnesota Department of Human Rights is working to update the Affirmative Action Certification Form. Consultants are required to have a current Human Rights Certificate on file with MMB before a Contract is executed (and, SWIFT helps with that process, as encumbrances will not go through without that on file).

However, when it comes to solicitations, submission of this form is required for any project over $100K. Administrators need to ensure they are not only checking for the form, but making sure that the following box is NOT checked on the form, as this results in immediate disqualification of the responder:

We do not have a Certification of Compliance, nor has the MDHR received an Affirmative Action Plan from our company. We acknowledge that our proposal will be rejected. Proceed to Box C. Contact the MDHR for assistance. (See below for contact information)

Also note, the commissioner of the Department of Human Rights is working hard to get agencies to increase their use of DBE’s, Vets, SBE’s, etc., so utilization/inclusion of these types of companies will be more and more encouraged as time goes on, and MnDOT will be working to ensure their programs are more inclusive these type of companies.

Updates

Presented by: Ryan Gaulke

Data Management Agreement

A fairly new initiative of the department is the use of Data Management Agreement, which has evolved from the greater use of “cloud computing” on projects. Essentially, issues can arise when MnDOT data is stored by a third-party, outside of MnDOT. Data Management Agreements are now being put in place, to ensure that data is safe, not used outside of the formal agreement, and certifies that the consultant will destroy any data housed on their servers and transfer data back to MnDOT, as applicable, upon completion of a contract. This is basically a supplemental agreement, which is processed along with the P/T contract. If you ever think a Data Management Agreement would be appropriate for your project, contact Contract Management or Peter Zuniga for guidance.

Jobs Reporting Requirement

Recently, solicitations and contract templates were updated to include articles and provisions regarding new State Jobs Reporting Requirement information. MMB has been charged with gathering and reporting on data regarding the use of State Bond Money. The process and requirements are still being worked out, and MMB is working with MnDOT’s finance office to essentially echo the ARRA reporting process. They are working to develop a spreadsheet, a formal process, and contract language – which will replace the temporary process and language we are using at this time, so requirements will most likely change in time. One that that was not clear previously, is that the reporting is ONLY for Legislatively Appropriated Bond Money from 2012 forward, nothing prior to that.

Admin Issues

-  Scopes Attached to Certification Forms: Previously, a summarized scope was “good enough” to process a Cert Form for approval. That is no longer the case. You must now attach a scope of work that is as close to the final version as possible. Additionally, if you use a portion of your scope of work as your “Nature of Contract” on the Cert Form, make sure it matches the Scope of Work identically.

-  Amendments: Your revision preambles must be precise. If you are only amending a portion of an Article (for example, out of Subarticles 8.1-8.4, you are ONLY amending Subarticle 8.1), you MUST clearly identify that in your preamble. You cannot state “REVISION 1: Article 8 is amended as follows” – it must state “REVISION 1. Article 8.1 is amended as follows”.

-  Single Source Contracts: These contracts are being highly scrutinized at Admin, as it eliminates the competitive nature of contracting. While “proprietary rights” was at one time a pretty solid justification for a single source, that’s no longer the case. While it may be true, it must still be detailed and clearly justified, and information must be provided to back up that fact, ensuring that they are indeed the sole source for the work.

-  Cost Caps: Note that cost caps on the different type of contracting processes are FIRM, NO EXCEPTIONS. Under no circumstances may a:

o  Direct Select or Annual Plan contracts exceed $5K

o  Pre-Qual Direct Select contract, Certified List contract or contract awarded under an Informal Sonication exceed $100K

o  Pre-Qual contract awarded in the $100-800K level exceed $800K

Transparency

Presented by: Ryan Gaulke

Transparency is not just INTENT, but appearance. MnDOT must ensure that our contracting processes allow for fair and open competition. Some recently issues of transparency, that everybody must be aware of, include:

-  RFP Scope: When creating your RFP scope of work, ensure that the scope and needs are general and open, and not too specific, to where it looks like a specific vendor might be targeted for the project, or appearance of favoritism is at risk.

-  Solicitation Reponses Modifications: Responses (proposals, letters of interest, etc.), including supplemental/forgotten information, CANNOT be accepted after the acceptance deadline has passed. The only exception to this rule would be items that are not rated, distributed to committee members and are incidental to the selection (for example, an Affidavit of Noncollusion Form).

-  Rejection of Responses: There is a fine line to walk when it comes to rejecting responses – whether it be one, or all responses. You must ALWAYS be able to justify this action, and explain why it was done without risk of repercussions. A recent issue, that all administrators should be aware of is: if you receive 3 responses, and 1 responder “got it”, submitting everything necessary and responding appropriately, while the other 2 appear to have missed the boat, you CANNOT just reject all response and start over/redo the solicitation. This is NOT fair to the responder(s) that took the time to respond, on time, and gives an unfair advantage to responders that did not respond in time. Also, note, if a responder blames SWIFT for submission issues, it is not going to fly as a valid reason for missing a deadline.

-  Direct Selects under $5K: A series of contracts, for the same type of work, being directly selected over and over again does not allow for fair an open competition. If a need (training, facilitation, etc.) may be potentially ongoing, the option of doing an RFP process, for a longer period of time, must be explored.

-  Contracts Under $100K: Along the lines of the above issue, you cannot split one project into two, just to avoid doing a solicitation and attempt multiple direct select contracts with the same vendor. The work must be distributed, or a competitive selection must be done for the entire project amount.

-  Amendments: There has been a history of “spin cycle” amendments in the contracting world. For example, you have money left on a contract, but the expiration date is approaching, so you amend for more time to use up the budget. Then, down the road, you are now running out of money, but need more time to finish up work, so you amend the contract for additional compensation. If allowed, this could be an endless cycle of amendments for some projects. Remember, a contract MUST come to an end, otherwise lack of competition exists.

Item 5 – Audit Reminders

Presented by: Bruce Kalland

-  Subcontractor Agreements: GET YOUR SUBCONTRACTOR AGREEMENTS. As always, they are required, and a contract closeout process cannot exceed without it/them. As a first line of defense, make sure you are using the current “notice to proceed” language, which includes a reminder to submit these.