Request By:
Mr. Jose Oubrerie, Dean
University of Kentucky
College of Architecture
Pence Hall
Lexington, KY 40506-0041
Opinion
Opinion By: Frederic J. Cowan, Attorney General; V. Lynne Schroering, Assistant Attorney General
You have asked this office for an opinion of the Attorney General regarding the offer of the College of Architecture at the University of Kentucky to organize and administer an architectural design competition for two buildings which will be built using state funds. You state that the college has offered this service to the state because the competition process has a long, successful history of assuring maximum quality in architectural design. Specifically, you asked whether Kentucky Revised Statute (KRS) 45A.205 would prohibit the utilization of a design competition as part of the process for awarding architectural contracts for buildings built with state funds. Specifically, you have attached a letter from John C. Rogers, of the Finance and Administration Cabinet, written to James E. Wallace of the Kentucky Historical Society, which states that a design competition "does run contrary to the statutory policy of the Commonwealth on selection of architectural and engineering services" (KRS 45A.205).
KRS 45A.205 does indeed address the procurement of architectural and engineering services. This statute is modeled upon federal law. The federal statute is commonly known as the "Brooks Bill" (named for its initial sponsor in Congress, Representative Brooks from Texas). This legislation sets up a method for selection of architects and engineers which has been widely adopted in state governments and, of course, is the law in the federal government as well.
The major implication of this approach is that contracts with architectural and engineering firms are not given on the basis of lowest bid or competitive bidding. Contracts are negotiated with qualified firms under specific statutory guidelines. Compliance with the Brooks Act is mandatory for all federally funded projects (Surface Transportation and Uniform Relocation Assistance Act of 1987, PL 100-17).
THE KENTUCKY STATUTE
In all essential aspects, KRS 45A.205, which is part of the Kentucky Model Procurement Code, contains the provisions of the "Brooks Bill" as passed by Congress. The only significant difference is the person who does the actual negotiation. Under the Kentucky Revised Statutes it is a "purchasing officer." Under the federal law, Public Law 92-582, it is the "agency head." With this exception, the substantive language in KRS 45A.205 is identical with Public Law 92-582, which was passed by Congress in 1972. The General Assembly passed KRS 45A.205 in 1978, using the federal law as a model. (A copy of both the federal and Kentucky law is attached.)
Briefly, Kentucky's law requires:
(1) annual statements of qualifications and performance data;
(2) public announcements of all architectural/ engineering (A/E) procurements;
(3) evaluation of qualifications statements and other information appropriate to performance of a proposed project;
(4) discussions with no less than three firms regarding anticipated concepts and alternative methods;
(5) ranking of the preferred firms into a "short list" ;
(6) negotiation of a fair and reasonable contract with the most qualified firm, if possible; and
(7) failing agreement with the top-ranked firm, formal termination (by the agency) of such negotiation and invitation to the second-most-qualified firm to undertake negotiations. This process may continue to the third-ranked firm, if agreement cannot be reached with the second-ranked firm.
As we understand it, the idea of a design competition is to encourage various qualified architectural firms to produce designs, within the guidelines provided to all competitors, which are then judged, using stipulated criteria, by an independent committee. The winning design is chosen and negotiations are then initiated between the state and that firm to produce the finished product.
There is nothing in KRS 45A.205 which would prohibit the use by the purchasing officer of a design competition as a method of selecting, in order of preference, the three firms deemed to be the most qualified. The statute is clear that the purchasing officer shall enter into discussions with at least three qualified architectural firms. The statute states:
The purchasing officer shall evaluate current statements of qualifications and performance data on file with the Commonwealth, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with no less than three (3) firms regarding anticipated design concepts and the relative utility of alternative methods of approach for furnishing the required services, and shall then select therefrom, in order of preference, based upon criteria established and published by him, no less than three (3) of the firms deemed to be the most highly qualified to provide the services required.
KRS 45A.205(2).
Any design competition utilizes, as the statute states, criteria and anticipated design concepts. Although the winning design would be judged by an independent committee, the criteria established and published by the purchasing officer under KRS 45A.205(2) could simply be that the participating firms have met all the criteria for the building itself, and that the purchasing officer will adopt the judgment of the design competition committee as the preferred "short list" firms, provided they have satisfactory qualifications and can perform the proposed duties.
A design competition does not require that the firm chosen be actually engaged to produce the work. As under KRS 45A.205(3), negotiation with the firm is required. This negotiation is based upon the fact that the firm winning the design competition has made the "short list, " but does not require that the contract be awarded. Of course, the state and the firm must negotiate in good faith. KRS 45A.015. Therefore, based upon the foregoing, it is clear that there is no bar to conducting a design competition under KRS 45A.205.
Other governmental agencies have utilized the federal statute and have conducted design competitions for specific projects. We have been in contact with the American Institute of Architects in Washington, D.C. in this regard. For example, the old Post Office, in Washington, D.C., was substantially modified and renovated into an entirely new use following a design competition under federal statutes identical in virtually every respect to the Kentucky statutes. This is but one example of the utilization of the approach found in the Kentucky Revised Statutes in 45A.205 which has been effectively combined with a design competition in another jurisdiction having virtually the identical statute.