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1 Robert Alfert Jr., et al., Procurement of Airport Development and Planning Contracts 1 (2012)

handle is hein.scsl/prairpord0001 and id is 1 raw text is: Septem~ber 2012~ AIRPORT~ COOP>ERATIVE RESEACH PROGRAM Sposored by the Federal Aviation Adin is~tration ~ C 16 PROCUREMENT OF AIRPORT DEVELOPMENT AND PLANNING CONTRACTS This report was prepared under ACRP Project 11-01, Legal Aspects of Airport Programs, for which the Transportation Research Board (TRB) is the agency coordinating the research. The report was prepared by Robert Alfert, Jr., P.A., Broad and Cassel; Karen M. Ryan, Esq., Broad and Cassel; and Roy Block, RW Block Consulting, Inc. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. There are over 4,000 airports in the country and most of these airports are owned by governments. A 2003 survey conducted by Airports Council International-North Amer- ica concluded that city ownership accounts for 38 percent, followed by regional airports at 25 percent, single county at 17 percent, and multi-jurisdictional at 9 percent. Pri- mary legal services to these airports are, in most cases, provided by municipal, county, and state attorneys. Reports and summaries produced by the Airport Con- tinuing Legal Studies Project and published as ACRP Legal Research Digests are developed to assist these attorneys seeking to deal with the myriad of legal problems encoun- tered during airport development and operations. Such sub- stantive areas as eminent domain, environmental concerns, leasing, contracting, security, insurance, civil rights, and tort liability present cutting-edge legal issues where re- search is useful and indeed needed. Airport legal research, when conducted through the TRB's legal studies process, either collects primary data that usually are not available elsewhere or performs analysis of existing literature. Most airport operators, as public agencies, are subject to some type of procurement law or regulation for carrying out procurements and awarding contracts. Airports procure a variety of contracts for construction services, profes- sional services, and the purchase of equipment. Typically, some form of competitive selection is required. The vari- ous competitive procurement requirements exist to pro- mote fair and open competition and to ensure integrity and confidence in the public procurement system. Which pro- curement requirements apply to any given procurement will depend upon the type of goods and services required and the funding source. Airports receive funding from a variety of sources, including funding from the federal, state, and local governments, as well as funding from internal revenue sources, such as tenant revenue, conces- sions, and parking revenue. Each of these funding sources has its own procurement requirement and, in some in- stances, the requirements may conflict. Similarly, while the exceptions to the general requirements of competition may be available, the circumstances and conditions that must be met to quality for the exceptions may vary. When an airport receives federal funds, there are exten- sive statutes, regulations, operating guidance, and case law that will impact the procurements. Airports can receive federal funding from a number of different federal agen- cies, each with its own requirement. Because of these many procurement and contractual requirements, navigating through such a complex environment requires careful anal- ysis, especially when the requirements are ambiguous or conflicting. The multiplicity of procurement requirements can also lead to confusion regarding what set of require- ments apply to a particular airport procurement. This con- fusion can lead to delay and added cost for completing the procurement projects for airport projects and, in some cas- es, may contribute to the filing of an ill-founded bid protest. This digest provides guidance to airport operators, their counsel, and bidders on how to determine which requirements apply to any given procurement and an overview of the consequences for noncompliance so that airports can better understand the inherent risks associated with each funding source.

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