Council Reinforces Need to Maintain Fair and Open Competition

Advocacy

March 17, 2023

Council Reinforces Need to Maintain Fair and Open Competition

This week, ACEC submitted comments to the Office of Management and Budget (OMB), which is proposing to revise title 2 of the Code of Federal Regulations (2 CFR). Specifically, ACEC shared the Council’s concerns over past interpretations of CFR 2, Section 200.319, which states, “In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurements.”

As our comments state, forcing the most qualified engineering firms to forgo either assisting with project applications or pursuing projects after they are awarded funding is inefficient, unnecessary, and inconsistent with how other federal agencies have addressed the question of how local agencies should engage engineering services for various phases of projects.

Agencies vary in their interpretation of unfair competitive advantage; some have excluded firms that have assisted in the successful application for federal grants and loans. ACEC has challenged agency interpretations previously over their reading of CFR 2, Section 200.319. This has been proven to prevent agency clients from making procurement decisions for engineering services based on the needs of specific projects. Section 200.319 provides specific examples of situations considered to be restrictive to competition, all of which involve direct actions that favor the contractors involved.

As they continue their revisions of title 2 of the CFR, ACEC recommends that OMB clarify CFR 2, Section 200.319 by stating that services provided by an engineering firm, as part of application for federal funds, does not create an unfair competitive advantage for that firm.

See our comments here.

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