TRANSPORTATION

Question 1:
If a Designer uses a Contractor to perform constructability reviews on a design contract, does this preclude the Contractor from pursuing the construction project?

Guidance:
This would be considered a conflict of interest.  That contractor would have had previous access to the project plans and could have provided input to help alter the plans to their own advantage.

Question 2:
The Department hires an inspector to perform verification inspections, and the same inspector will also be performing plant certification inspections for another company. If a Plant Certification Agency uses the other company to perform their plant certification inspections, is it a conflict of interest if the same inspector performs the plant verification inspection for the Department?

Guidance:
Section 8.5 (8) of the Materials Manual requires the inspectors of the plant certification agency should not be employed by or involved in any business related functions of the plant.  In this case the inspector should not be an employee of the Plant Certification Agency, perform their quality control inspections, or be involved in any business related functions of that agency. This would not be considered to be a conflict of interest.

The certification inspection is a systems based inspection and not an actual project inspection so the inspector would not be working on the same project for both the Plant Certification Agency and the Department.

Question 3:
Are consultants that perform Value Engineering (VE) on projects excluded from further work on the project?

Guidance:
This should not be considered a conflict.  Although the firm may propose recommendations for VE savings, it is up to the Department to decide to incorporate.

Since we are generally performing VE early in project development, sometimes in a planning phase or early PD&E, a participating firm may be worried that if they perform the VE that they would preclude themselves from further work on the contract. 
See Also Design-Build FAQ # 5 (RFP Review)

Question 4:
Can a Geotechnical Consultant who provides geotech design services be permitted to later provide unrelated CEI services on the same project?

Guidance:
The Geotechnical Consultants can be permitted to provide unrelated CEI services on projects which they provided different design services.  For instance, they can be allowed to work as a sub to the CEI and provide asphalt testing services or concrete testing services when they were also a sub to the Engineer of Record for completely unrelated (may have provided specific geotechnical borings, lab tests or foundation analyses) services.  This is not a conflict of interest.  The existing language in the Consultant Eligibility Procedure will be edited in the next revision to reflect these types of relationships.

Question 5:
Is it a conflict for a firm to perform preliminary pavement coring and then later perform Contractor Quality Control (CQC), Geotechnical, or engineering services?

Guidance:
Generally, once the preliminary pavement coring activities are complete, there is no more work on the cores nor will the firm make any additional recommendations. These services are also performed very early in the design process so that the Districts can provide milling thickness to the designers. Since the firm is providing raw data on cores early in the production process and the raw data is not included in the plans, the firm is also not seen to be making design decisions.

The CQC services consist of performing earthwork, concrete, and asphalt sampling/testing/reporting. In some instances, they may also provide Quality Control Manager services which also includes ensuring that the elements of the QC Plan are administered properly;
the QC Plan does not include milling. The preliminary pavement coring data is not used in any way to make CQC decisions. 
 

In summary, the preliminary pavement coring data is completely separate from CQC and never enters into a CQC decision during construction.  In this type of scenario, this is not considered to be a conflict of interest.

If the the engineering services included evaluation of shy pavement thickness as part of claim against the EOR, it could be considered a conflict of interest to which the firm would have to recuse itself.

Question 6:
On a Design/Bid/Build project, can a sub to the Engineer of Record (EOR) for survey work also become a sub to the CEI for survey work?

Guidance:
Since survey services will generally be considered very minor (les than 2 - 3% of the project fees) on the CEI contract (and likely to be utilized on only 1 of 3 projects) and survey services may not even be necessary at all, this would (by procedure) be the District Secretary's decision.

Additionally, if a firm wants to provide survey services as a sub to both the EOR and the CEI, this should be permitted by the Districts.  Since the survey work is such a minor portion of the contract fees (on a relative scale) for both Design and CEI services.

Question 7:
Can a consultant firm, or its affiliate, that is the Engineer of Record (EOR) on a project be considered eligible to compete as a prime consultant for CEI services on that same project.

Guidance:
No. 
A consultant firm, or its affiliate, that is the Engineer of Record (EOR) on a project shall not be considered eligible to compete as a prime consultant for CEI services on that same project.
 

A consultant firm, or its affiliate, that is the EOR on a project may only be considered eligible to compete as a subconsultant for CEI services upon approval of the District Secretary. 
 

A consultant firm, or its affiliate, that was a subconsultant to the EOR on a project may only be considered as a prime for CEI services on the same project, with the approval of the District Secretary. 
 

A consultant firm, or its affiliate, that was a subconsultant to the EOR on a project may only be considered as subconsultant for CEI services with the approval of the District Secretary. 
 

The District Secretary's approval shall be based on the extent of the firm's involvement in the design of the project or CEI services, as the case may be, and the potential of hindrance of any objective decision making.

Question 7a:
The same consultant firm is prohibited from performing both the design and the CEI on the same project.  Does this also apply to a Local Agency Program?

Guidance:
Yes.  This is a conflict of interest.

The FHWA consultant regulation makes no distinction for application of our consultant procedures between a state or a local agency, so the same criteria applies whether a state or local agency utilizes fed-aid for consultant work. When developing and endorsing a state policy/procedure for consultant use FHWA has always expected it to equally apply to the local agencies.

Question 8:
On a CEI contract, a proposed Project Administrator (PA) is related (by marriage) to the contractor on that job.  Is this a conflict of interest?

Guidance:
Yes.  The correct approach is to avoid creating situations where objective decision making could be hindered by a existing relationship.

Even a scenario of proposing a PA who is well known to the specific district could promote a negative perception that we need to avoid whenever possible.

Question 9:
Would a design firm pursuing a CEI Hybrid contract have a conflict of interest if the firm performed all (or part) of the design of a project on which the inspectors would be assigned?

Guidance:
No.  This would not be a conflict of interest because the administration of the construction contract would be done by the FDOT and the CEI would only be providing inspectors.