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Capitol Gains

November 28, 2006
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For more than 30 years, the surveying and mapping community has been seeking recognition of its professional status in procurement by the federal government. While the battle has long been fought in Congress and with government agencies, it is now being waged on a new front--federal court.

A number of professional organizations filed a lawsuit earlier this year in Federal District Court for the Eastern District of Virginia seeking to have the Brooks Act properly implemented in the Federal Acquisition Regulation (FAR). The Management Association for Private Photogrammetric Surveyors (MAPPS), American Society of Civil Engineers (ASCE), National Society of Professional Engineers (NSPE) and Council on Federal Procurement of Architectural and Engineering Services (COFPAES) v. United States of America claims the officials responsible for writing the FAR have improperly thwarted the will of Congress and state licensing law by limiting the types of surveying and mapping contracts procured via the qualifications based selection (QBS) process by federal agencies.

Qualifications Based Selection

The case for awarding surveying contracts based on competing professionals' qualifications, rather than price, dates to the days of the Civil War. An 1861 Appropriations Act provided for the appropriation of funds for various purposes, including the compensation of civilian surveyors. Section 10 of the act directed that all contracts for supplies or services be made by advertising for proposals "except for personal services." A year later, the Attorney General of the United States ruled that a contract for surveying was a contract for personal services within the meaning of the act and, therefore, could be made without advertisement and competitive bidding. In reaching his decision, the Attorney General observed:

...although this policy [price competition] is certainly desirable in all cases, there are yet some to which it cannot well be applied. Such are contracts for services which require special skill and experience. ...In all contracts for services which presuppose trained skill and experience, the public officer who employs the service must be allowed to exercise a judicious discrimination, and to select such as, in his judgment, possesses the required qualifications.
Of this class are contracts for surveying the public lands. The service to be performed requires not only fidelity and integrity, but a certain kind of skill and knowledge, and the officer whose duty it is to let the contract, is bound to know that the person he employs possesses these qualifications. It is not half so important to have the work done cheaply as to have it done well, and the price to be paid for it, whilst it should be but fair and reasonable, ought to be far from controlling consideration [emphasis added]. (10 Op. Atty. Gen. 261-262 (1862))

In part due to this opinion, federal contracts for surveying and mapping were among those awarded on the basis of qualifications, rather than price, for the next century. When the Comptroller General of the United States--the head of the General Accounting Office (now known as the Government Accountability Office)--ruled in the late 1960s that agencies lacked the statutory authority to award contracts based on factors other than price, Congress enacted the landmark Brooks Act, named for its author, then-Representative Jack Brooks (D-TX). The law, enacted as Public Law 92-582 and codified in 40 USC 1101, provides for the selection of firms to perform architectural, engineering and related services "on the basis of demonstrated competence and qualification for the type of professional services required." From its enactment in 1972 until two GAO protests (Ninneman Engineering - Reconsideration, B-184770, March 9, 1977 and U.S. Geological Survey, B-118678, May 6, 1977), federal agencies used the QBS process for their surveying and mapping projects. Following those GAO decisions, the professional societies and trade associations lobbied Congress to clarify the application of the Brooks Act to surveying and mapping. More than a dozen different provisions of law clarifying QBS coverage of surveying and mapping have been enacted since the Ninneman and USGS decisions, including 1988 amendments authored by Jack Brooks himself specifically putting the words "surveying and mapping" in the Brooks Act's definition of "architectural and engineering services."

Since the Brooks Act was enacted in 1972, more than 35 states have enacted "mini-Brooks Acts" providing for QBS on state and, in some instances, local government contracts. The American Bar Association's Model Procurement Code for State and Local Government, legislation drafted and recommended by the leading procurement lawyers in the nation, includes QBS for architecture and engineering, including surveying and mapping.

The Federal Acquisition Regulation

The pending legal action by MAPPS and other societies alleges the U.S. government has promulgated provisions in the FAR (48 CFR 36.6) that are in conflict with the Brooks Act and seeks injunctive relief by directing the government to revise the FAR to be consistent with the Brooks Act as directed by Congress on numerous occasions and in several enacted provisions of enacted legislation.

The FAR currently provides that the Brooks Act applies to surveying, and to those mapping contracts "associated with the research, planning, development, design, construction, or alteration of real property." However, the FAR goes on to say "mapping services that are not connected to traditionally understood or accepted architectural and engineering activities, are not incidental to such architectural and engineering activities or have not in themselves traditionally been considered architectural and engineering services" are to be procured pursuant to price competition provisions of the FAR.

That last sentence is the subject of the legal action. The Brooks Act unequivocally applies to surveying, and requires QBS for services defined in the applicable state licensing law. Over several years, many states have revised surveying licensure laws to include a variety of mapping services, including many that were not considered architectural and engineering services prior to the enactment of the new licensing law. Not only does the legal complaint argue that Congress never enacted the limitation on mapping contracts spelled out in the FAR, but the FAR language is in conflict with itself. In a July 18 reply to the complaint, the government stated, "federal contracting officials must use QBS when procuring mapping services in states that define engineering or surveying to include mapping." Attorneys representing the profession have pointed out that while that is absolutely true, it is NOT practiced by the government, and it is NOT reflected in the FAR.

The failure of the government to follow that point of law is the crux of the litigation. Attorneys for the profession are discussing this point with the U.S. attorney representing the government and offering a settlement conference. If the government would agree to comply with the above statement, and put a provision in the FAR requiring the above statement as practice in federal procurement, the case could be settled, the complaint withdrawn and the public health, welfare and safety once again protected by the procurement of surveying and mapping services performed by qualified professionals on the basis of their competence and qualifications.

The judge's ruling on accepting the complaint, and the government's response to the profession's attorney's offer, are currently pending.

Editor's Note: We are pleased to bring you the perspective of a new columnist in this issue. John Palatiello has been involved in public policy issues affecting the surveying and mapping profession for almost 25 years. He currently serves as the executive director of the Management Association of Private Photogrammetric Surveyors (MAPPS) and the administrator of the Council on Federal Procurement of Architectural and Engineering Services (COFPAES).The focus of John's columns in POB will be on policy and professional issues, including those affecting surveying, mapping, GIS and related disciplines. Look for more "Capitol Gains" columns in 2007.

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