Recently the Virginia Information Technology Agency (VITA), manager of the Virginia Geographic Information Network (VGIN), issued a request for proposals (RFP) for a statewide mapping project.
The procurement raised several important issues.
In 2005, the Virginia General Assembly passed, and the governor signed, a bill that clarified that "the determination of topography, contours and/or location of planimetric features using photogrammetric methods or similar remote sensing technology” was the practice of surveying. The law, and its implementing rules, provided for a "grandfather period” during which scores of practitioners became licensed as a "surveyor photogrammetrist.” The Code of Virginia provisions are § 54.1-400, § 54.1-111. The licensing board implementing rules are in 18 VAC 10-20-310.
As the process to include photogrammetry in the surveying licensing program moved through discussions among various stakeholders, which included MAPPS, a compromise was reached in which an exception from licensing was granted for mapping "not used for the design, modification, or construction of improvements to real property or for flood plain determination.”
However, any such "exempt” service required that each map include a disclaimer stating that the data "may not be used for the design, modification, or construction of improvements to real property or for flood plain determination.”
Virginia has a "mini-Brooks Act” that requires qualifications based selection (QBS) for "professional services,” which include surveying. (Code of Virginia, § 2.2-4301). If a service is a professional service, a licensed professional is required to seal and be in responsible charge of the work. QBS is also required for government contracts. If a service is exempt, the aforementioned disclaimer is required.
VITA RFP 2012-13 was neither exempt nor compliant with QBS requirements.
Among the requirements in the price-based RFP, respondents were asked to offer 3-inch resolution orthophotos at 1” = 50’ scale mapping (see Section 5.2.5 in Appendix E of the RFP). This is a scale generally associated with preliminary design engineering. In fact, the orthoimagery product sheet for the Virginia Base Map Program (VBMP) website lists "land development" and "civil engineering" under the heading "Typical Uses" in reference to the 3-inch resolution upgrade.
The RFP also "requires" respondents to offer 2-foot contours (see Section 5.7.6 in Appendix E of the RFP). This is a product generally associated with land development planning. In fact, the contour product sheet on the VBMP website lists "land development" under the heading "Typical Uses" in reference to the 2-foot contour upgrade.
All of the above would seem to indicate that the mapping to be conducted for VBMP may be interpreted to be useful for "the design, modification, or construction of improvements to real property" and therefore not exempt from statutes or procurement procedures that are appropriate for such mapping.
On September 25, the Virginia board of licensure for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects (APELSCIDLA) of the Department of Professional and Occupational Regulation formally and unanimously determined the scope of work in the RFP is the practice of surveying.
The licensing board ruled VITA has NOT included the disclaimer required by § 54.1-402(C) of the Code of Virginia or the board’s regulations (18 VAC 10-20-310).
Given that the Code of Virginia § 2.2-4301 requires qualifications based selection for the procurement of professional services (which, by § 54.1-400 and § 54.1-111 includes photogrammetric mapping services) that are used for the design, modification, or construction of improvements to real property, the board determined that the VBMP RFP is not in compliance.
The APELSCIDLA Board will advise VITA/VGIN in writing that the scope of work in its procurement is indeed the practice of surveying in Virginia and must be sealed by and under the responsible charge of a Virginia licensed surveyor or surveyor photogrammetrist, in which case the procurement is for professional services subject to the VA mini-Brooks Act; OR the procurement, and each map produced thereunder, must include a disclaimer that such data may "NOT be used for the design, modification, or construction of improvements to real property, or for flood plain determination."
While APELSCIDLA does not have jurisdiction over procurement, in either case the current procurement is not in conformance and, from a practical standpoint, must be re-competed since adding the disclaimer as a contract requirement after proposals were submitted will materially affect the procurement.
It is significant that an assistant attorney general was present at the September 25 meeting and concurred with APELSCIDLA's interpretation.
MAPPS, the National Society of Professional Surveyors (NSPS) and Virginia Association of Surveyors (VAS) urged the APELSCIDLA board to investigate and clarify this matter. It is important that VITA be aware of its responsibilities under state law. MAPPS member firm principals particularly needed this board interpretation in order to assure their own compliance and conformance with Virginia law, particularly if one is licensed in Virginia as a surveyor or surveyor photogrammetrist. These same issues have affected MAPPS members with regard to the recent NGA and USDA procurements. There is an old adage that "ignorance of the law is no excuse.” MAPPS seeks to have the law clarified and explained so its members are fully informed and in compliance.