Attorney General: Emil H. Frankel , Department of Transportation , 1994-005 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

February 22, 1994

Emil H. Frankel
Commissioner
Department of Transportation
2800 Berlin Turnpike
Newington, CT

Dear Commissioner Frankel:

This is in response to your letter dated December 1, 1993, in which you request our opinion on whether the Department of Transportation's use of on-call consultants is contrary to the requirements of Sections 13b-20b through 13b-20l of the Connecticut General Statutes. In our opinion, the use of on-call consultants does not conflict with the cited statutory provisions.

I

In 1969 the legislature enacted the State Transportation Act ("Act") which established the Department of Transportation ("DOT"). See, 1969 Conn. Public Acts No. 768. Pursuant to Section 3 of the Act (now codified as Conn.Gen.Stat.  13b-3), the DOT was given the general responsibility for all aspects of the planning, development, maintenance and improvements of transportation in the State of Connecticut. The executive head of the DOT is the Commissioner of Transportation ("Commissioner"). Id.

The Commissioner has jurisdiction over the State highway system; Conn.Gen.Stat.  13b-24; aeronautics in the State; Conn.Gen.Stat.  13b-39; and, the harbors and navigable waterways of the State; Conn.Gen.Stat.  13b-51. He also has broad responsibility for railroad operations; see, Chapter 245 of the Connecticut General Statutes; and, other forms of public transportation; see, Chapters 244, 244a and 244b (motor bus, taxicab and livery service). Moreover, the Commissioner has been given the general powers, duties and responsibilities to:

(1) coordinate and develop comprehensive, integrated transportation policy and planning to include a long-range master plan of transportation for the State;

(2) coordinate and assist in the development and operation of a modern, safe, efficient and energy-conserving system of highway, mass transit, marine and aviation facilities and services;

(3) promote the coordinated and efficient use of all available and future modes of transportation;

(4) study commuter and urban travel and in cooperation with federal, regional and local agencies and persons to formulate and implement plans and programs to improve such travel;

(5) study means of providing facilities for parking motor vehicles so as to encourage travel by the combination of motor vehicle and other modes of transportation and in cooperation with federal, regional and local agencies and persons to formulate and implement plans and programs for this purpose;

(6) study means of improving transportation safety and to formulate and implement plans and programs and promulgate regulations for this purpose;

(7) study the operations of existing airports, to determine the need for changes in such airports and the need for future airports, and to formulate and implement plans and programs to improve aviation facilities and services;

(8) cooperate with federal, state, interstate and local agencies, organizations and persons performing activities relating to transportation;

(9) exercise and perform such other duties and responsibilities as may be conferred under Title 13a and Title 13b of the Connecticut General Statutes or as may otherwise be conferred by law;

(10) prepare a plan setting forth his recommendation for a restructured system of regional transit districts within the State;

(11) prepare pertinent reports, including but not limited to, detailed reports of energy use analysis by mode of transportation; and

(12) provide for the planning and construction of any capital improvements and the remodeling, alteration, repair or enlargement of any real asset that may be required for the development and operation of a safe, efficient system of highway, mass transit, marine and aviation transportation. See, Conn.Gen.Stat.  13b-4.

In short, subject to gubernatorial and legislative direction, the Commissioner has the enormous responsibility of addressing the State's current and future transportation needs.

To assist him in carrying out his duties and responsibilities, the Commissioner may employ, subject to the provisions of Chapter 67 of the Connecticut General Statutes, such agents, assistants and employees as he deems necessary, and may also "retain and employ other consultants and assistants on a contract or other bases for rendering legal, financial, technical or other assistance and advice." Conn.Gen.Stat.  13b-10. See also, Conn.Gen.Stat.  4-8

("Each department head may enter into such contractual agreements, in accordance with established procedures, as may be necessary for the discharge of his duties."). Among the various consultants retained and employed by the Commissioner to provide such assistance are so-called "on-call" consultants.

According to your letter of December 1st, on-call consultants provide services for the DOT on an as-needed basis. For example, if an unanticipated environmental problem arises during the course of the construction of a highway or bridge, the DOT can immediately procure the services of an on-call environmental consultant, already on contract with DOT, to deal with the problem. On the other hand, if no such problem ever arises, then the DOT may never have occasion to utilize the services of the on-call consultant.

It is our understanding that on-call consultants are selected and contracts awarded in accordance with the procedures set forth in Sections 13b-20b through 13b-20l of the Connecticut General Statutes (hereinafter "consultant selection statutes") and the regulations promulgated thereunder, Regs., Conn. State Agencies  13b-20a-12 through  13b-20a-25. These procedures provide that whenever the Commissioner determines that there is a need to engage a consultant, he shall publish a public notice in appropriate professional magazines, professional newsletters and newspapers indicating the general scope of the assignment and requesting responses. Conn.Gen.Stat.  13b-20g. Thereafter any consultant who desires to provide the services outlined in the published notice is to submit a letter of intent to the DOT. Conn.Gen.Stat.  13b-20e(b).1 A selection panel is responsible for the preparation of the evaluation of interested consultants and for the development of a list of prospective consultants for each work assignment. Conn.Gen.Stat.  13b-20h(a).2

In making the initial review of responses and in all other steps of the selection process, both the Commissioner and the selection panel are guided by the objective criteria listed in Conn.Gen.Stat.  13b-20i. This criteria consists of the following:

(1) Specialized design and technical competence of the consultant firm regarding the types of service required;

(2) Capacity and capability of the firm to perform the work, including any specialized services, within the time limitations;

(3) Past record of performance on contracts with the state and other clients with respect to such factors as control of costs, quality of work, conformance with program and cooperation with client;

(4) The volume of work performed by the firm within the previous three years for the department of transportation and the volume of work to be completed by such firm, if any, with the objective of effecting an equitable distribution of contracts among qualified firms and of assuring that the interest of the public in having available a substantial number of qualified firms is protected, provided, the principle of selection of the most highly qualified firms is not violated; and

(5) Where a full work proposal process is utilized, the degree to which the consultant's proposal satisfies the requirements of the department.

Once the selection panel has screened and evaluated all the responses submitted to DOT, it selects five consultants for further consideration and conducts interviews with the consultants. See, Conn.Gen.Stat.  13b-20h(c) and  13b-20j(a).3 Using the above-quoted criteria, the selection panel furnishes a list of the most qualified consultants to the Commissioner, along with a memorandum indicating how the evaluation criteria were applied to determine the most qualified consultants. Conn.Gen.Stat.  13b-20j(b). Upon receiving the list from the selection panel, the Commissioner selects a consultant for the work assignment and prepares a memorandum indicating how he applied the evaluation criteria to determine the most qualified consultant. Id.

A separate committee, established pursuant to Conn.Gen.Stat.  13b-20d, negotiates a contract with the selected consultant. Conn.Gen.Stat.  13b-20k. After the award of the contract, the negotiation committee prepares a memorandum setting forth the principal elements of the negotiations, including sufficient details to reflect the significant considerations controlling price and other terms of the contract. Conn.Gen.Stat.  13b-20k(g). It is our understanding that the entire consultant selection/negotiation process may take several weeks, if not months, before a contract is finally executed.

II

Notwithstanding the comprehensive and public process that must be followed by the Commissioner in selecting a consultant, a question has been raised as to whether the consultant selection statutes prohibit the Commissioner from making use of on-call consultants. Specifically, reference is made to the word "project", as it appears in Conn.Gen.Stat.  13b-20h(a),4 for the proposition that the legislature did not intend that the Commissioner employ on-call consultants because such consultants are not assigned to a specific "project". We believe that this interpretation of the consultant selection statutes misconstrues the basic purpose of the statutes.

"It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent." All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). See also, Fyber Properties Killingworth Limited Partnership v. Shernoff, 228 Conn. 476, 482, --- A.2d ---- (1994). "The starting point in any case involving a question of statutory construction must be the language used by the legislature." Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364, 585 A.2d 1210 (1991). "When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature." Norwich v. Housing Authority, 216 Conn. 112, 117-18, 579 A.2d 50 (1990). "When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; ... the legislative history and circumstances surrounding the enactment of the statute; ... and the purpose the statute is to serve." Id. (citations omitted). See also, West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507-08, --- A.2d ---- (1994). Moreover, it is an elementary rule of construction that statutes should be considered as a whole, with a view toward reconciling their separate parts in order to render a reasonable overall interpretation. Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985). "Legislative intent is not found in an isolated sentence or word of a statute but must be sought in the entirety of an enactment, its parts reconciled and made operative as far as possible." Tufaro v. Pepperidge Farm, Inc., 24 Conn.App. 234, 238, 587 A.2d 1044 (1991). Finally, "[i]n construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." State v. Rogue, 190 Conn. 143, 151, 460 A.2d 26 (1983); see also, Sutton v. Lopes, 201 Conn. 115, 121, 513 A.2d 139 (1986).

There is no language in the consultant selection statutes that places any restrictions on the Commissioner of Transportation's authority to determine what, if any, consultant services are needed to assist him in carrying out his statutory duties and responsibilities. Rather, the statutes in question simply establish the process by which a consultant is selected once the Commissioner has decided that he has a need for a particular consultant service. This purpose is clear in the plain and unambiguous language of the statutes when considered as a whole. Moreover, this purpose is reflected in the legislative history surrounding the enactment of the consultant selection statutes. These statutes were enacted by the legislature in 1983. See, 1983 Conn. Public Acts No. 83-521. A review of the debates on the floor of the Senate and House of Representatives discloses that the focus of the legislation was to amend and expand upon the consultant selection regulations that had been adopted by the Department of Transportation in accordance with Conn.Gen.Stat.  13b-20a (Revised to 1981)5 and make this process more public. There is no mention at all of any intention to limit the authority of the Commissioner of Transportation to decide what particular consultant services may be needed by the Department of Transportation. See, 26 Senate Proc., Pt. 8; 1983 Sess., pp. 2676-94; 26 Senate Proc., Pt. 13, 1983 Sess., pp. 4618-21; 26 H.R.Proc., Pt. 19, pp. 6881-89; and, 26 H.R.Proc., Pt. 26, pp. 9050-69. See, e.g., the remarks of Rep. Richard J. Balducci regarding the relationship between then Conn.Gen.Stat.  13b-20a and the proposed legislation:

... Yes, Mr. Speaker, this is the old regulation used for hiring consultants. The Department of Transportation shall adopt regs establishing a uniform procedure, and that's what this particular bill is doing now that we have before us. Proposing a new method of selecting consultants.

26 H.R.Proc., Pt. 19, 1983 Sess., p. 6885. See also, the remarks of Sen. William A. DiBella:

Thank you, Mr. President. I think ibviously (sic) what we're doing here in putting into statutory language the proess (sic) used by the Department of Transportation for the selection of consultants and architects, but I think we're doing much more than that. I think that the whole process now is a process that's being done in a public manner. If you look at the selection process, the selection process remains the same except to the fact that a memorandum of selection, a memorandum with specific reference to the setting forth or principle elements in the negotiations with each firm is done by the negotiating team and a memorandum is also being submitted for the final purpose of selection process by the commissioner. It rests with the commissioner the selection process of selecting the consultant. *** And again, in closing, I feel that the legislation goes a long way to developing a fair and equitable process of selection and I think in terms of the general public it instills the feeling that there is fairness and equity within the process and it's a public process and I would urge support and passage of this legislation.

26 Senate Proc., Pt. 8, 1983 Sess., pp. 2687-89.

The word "project", as used in the consultant selection statutes, is not defined. In light of the context within which the word is used and the purpose of the legislation, however, we believe that it simply refers to the particular work assignment (i.e., consultant service) that the Commissioner has determined is needed. That assignment or project could be to provide engineering services in the preparation of design plans, estimates, specifications and related activities in connection with highway and bridge construction work; it could be to provide construction management services at a construction site; or it could be to provide environmental services to assist in the clean up of toxic waste spills or similar unanticipated events that may call for rapid response. In other words, the specific work assignment designated to be performed by a consultant is the project.

This interpretation of the word "project" is also consistent with the way the word was interpreted and applied by the Department of Transportation in connection with the consultant selection statute and regulations that P.A. 83-521 expanded upon. The prior statute, Conn.Gen.Stat.  13b-20a, had specified that the consultant selection regulations adopted by DOT were to provide, inter alia, for "a listing by the consulting firm of all individuals who contribute to the work project for which such consultant is hired." Conn.Gen.Stat.  13b-20a (Revised to 1981). The DOT deemed the term "work project" to be synonymous with work assignment and has continued to interpret the consultant selection statutes in this manner. That is, the statutes have been interpreted as prescribing the procedures to be used by the Commissioner of Transportation in picking a consultant to perform services for the DOT; the statutes have not been interpreted as imposing any limitation on the Commissioner's discretion to determine what services are required to assist him in fulfilling his statutory responsibilities to address the State's transportation needs. Although the interpretation of statutes is ultimately a question of law, nevertheless it is a well established practice "to accord great deference to the construction given [a] statute by the agency charged with its enforcement." Perkins v. Freedom of Information Commission, 228 Conn. 158, 165, --- A.2d ---- (1993), quoting from Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 512 A.2d 799 (1986). Hence, the DOT's interpretation of its consultant selection statutes is entitled to considerable weight.

Based on the foregoing analysis, it is the opinion of this office that the consultant selection procedures set forth in Sections 13b-20b through 13b-20l of the Connecticut General Statutes do not prohibit the Commissioner of Transportation from employing on-call consultants.

Very Truly Yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Cornelius F. Tuohy
Assistant Attorney General

RB:CFT:cd


Footnote:

1 It should be noted that in 1989 the legislature amended the consultant selection statutes to require the prequalification of consultants on an annual basis. See, 1989 Conn. Public Acts No. 89-152,  1. In general, consultants are not eligible to receive work assignments from the DOT unless their names appear on the prequalification list. See, Conn.Gen.Stat.  13b-20e(b). At the time the consultants are prequalified, they are not selected for a specific work assignment. Instead they are notified as the need for a particular consultant service arises and they must submit to the DOT a letter of interest for the work assignment. A consultant is then selected from among the respondents in accordance with the procedures outlined in this opinion.

2 A consultant selection panel is established in accordance with the procedures set forth in Section 13b-20c of the Connecticut General Statutes.

3 If fewer than five responses are received, the selection panel conducts interviews will all the consultants who have submitted letters of intent and presents the names of all the consultants to the Commissioner with its evaluation of the relative qualifications of the consultants for the contemplated work assignment. See, Conn.Gen.Stat.  13b-20h(c) and  13b-20j.

4 Subsection (a) of Section 13b-20h reads as follows: "A selection panel shall be responsible for the preparation of the evaluation of interested consultants and for the development of a list of prospective consultants for each specific project." (emphasis added)

5 With the enactment of the consultant selection statutes, Conn.Gen.Stat.  13b-20a was repealed. See, 1983 Conn. Public Acts No. 83-521,  12.


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