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February’s Brooks Act Litigation: What Geospatial Practitioners Need to Know

Friday, January 19th 2007
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Summary:

On February 2nd of this year the Management Association for Private Photogrammetric Surveyors (MAPPS), and other organizations will face the United States of America in a lawsuit in Federal Court. The litigation seeks to change how the Brooks Act, a law concerning how federal contractors are selected in the procurement process, is implemented with regard to “mapping” services. This article attempts to lay out in plain English our best understanding of laws in question, the players, the lawsuit and the potential outcomes of the suit, which may have significant impact on geospatial practioners and businesses.

Author's Note: This article has been updated since it was first published on January 19th. Errors of fact have been corrected. Reponses to Directions Media's request for statement from professional organizations are compiled in this article.

Litigation
On February 2nd of this year 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) will face the United States of America in Federal Court. The litigation seeks to change how the Brooks Act, a law concerning how federal contractors are selected in the procurement process, is implemented with regard to “mapping” services. The outcome may change how procurements are done at some federal agencies. This article attempts to lay out in plain English our best understanding of laws in question, the players, the lawsuit and the potential outcomes of the suit.

The Brooks Act Today
The Brooks Act dates back to 1972 and puts forward a framework for contracting architecture and engineering related work for the federal government. It says, in broad stroke, that instead of selecting contractors based on price, these contracts should use what's called "Qualifications-Based Selection" or "QBS." QBS bases selection on professional qualifications and experience, followed by negotiation with the most qualified firm of a price that is fair and reasonable to the government. Amendments to the Brooks Act since 1972 have added surveying and mapping to the list, so that now, architecture, engineering, surveying and mapping activities are contracted using this QBS process from licensed individuals in accordance with the adopted state law in which the project is located, if applicable, in those professions.

The FAR Council's Role
The Federal Acquisition Regulation (FAR) Council (FAR Council) ) is made up of several government agency executives. The FAR Council implements statutory laws (ones enacted by legislatures, in this case Congress), like the Brooks Act for contracting, in the Federal Acquisition Regulation (the FAR), which is part of the Code of Federal Regulations (CFR). The court battle is a result of how the FAR Council has implemented the Brooks Act and related legislation.

The documentation of how to implement the Brooks Act, contained in the CFR (48CFR36.601-4(a)(4)), currently details which mapping related projects fall inside and outside the scope of the Brooks Act and QBS. It reads as follows:

Contracting officers should consider the following services to be "architect-engineer services" subject to the procedures of this subpart: … Professional surveying and mapping services of an architectural or engineering nature. Surveying is considered to be an architectural and engineering service and shall be procured pursuant to section 36.601 from registered surveyors or architects and engineers. Mapping associated with the research, planning, development, design, construction, or alteration of real property is considered to be an architectural and engineering service and is to be procured pursuant to section 36.601. However, 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 shall be procured pursuant to provisions in parts 13, 14, and 15.

Essentially, this exception (last sentence) states that mapping, which isn't related to architectural and engineering (A&E) work, need not fall under the QBS part of the Brooks Act and thus may be contracted in the traditional price-based competition. The FAR text as a whole has been implemented in different ways by different agencies when contracting for mapping. Some agencies use QBS for all mapping solicitations, others do not. Some awards allow unlicensed individuals to perform tasks which require a license under the laws of state where the work is performed.

MAAPS Seeks Clarification
MAAPS has worked in recent years to clarify the language related to the Act. In particular, the organization feels, this exemption is not in the spirit of, in fact conflicts with, the Brooks Act and should be clarified. It began using non-litigious attempts to make the change.

With limited success, in 2006, MAPPS, along with the American Society of Civil Engineers (ASCE), National Society of Professional Engineers (NSPE) and Council on Federal Procurement of Architectural and Engineering Services (COFPAES) sued the United States (the FAR Council) alleging it was not doing its job in enforcing the intent of the Brooks Act. In particular, the suit seeks for the FAR Council to have the Brooks Act "properly implemented in the FAR." The plaintiff has asked for summary judgment and a hearing is set for February 2. That is, the groups named above have asked the judge to rule in their favor.

What a Change to the FAR May Mean
Exactly what change the FAR Council would make to the FAR should the suit be successful is unknown. MAPPS suggests in its response to a request for input from the FAR Council in 2004 that the exemption noted above be stricken and a formal definition of mapping be added. The definition offered is "activities associated with measuring, locating and preparing maps, charts, or other graphical or digital presentations depicting natural or man made features, phenomena, and legal boundaries of the Earth, performance of which, under this provision, is provided by licensed, certified or otherwise qualified professionals, such as surveyors, geodesists and photogrammetrists, including but not limited to surveys, maps, charts, remote sensing data and images and aerial photographic services…" Removal of the exception from the FAR will mean that all federal contract mapping as defined above, would fall under the QBS provision of the Brooks Act and need to be procured through licensed architects, engineers, surveyors and mappers, pursuant to applicable state law.

Some surveyors would benefit from such a change. MAPPS points out that in some states licensed surveying and mapping professionals are prohibited from bidding on price competitive contracts. Thus, bidding on federal surveying contracts not following QBS could cost them their licenses.

Organizations that want to see no change are concerned that removal of the exception could make contracting for many kinds of mapping far more expensive, complex, and exclusive (harder for smaller or disadvantaged business to respond) specifically because it would mean contracting would have to follow state regulations about the use of licensed surveying and mapping professionals. Opinions from both sides are documented in the Public Comments on the Application of the Brooks Act to Mapping Services, from 2004. (pdf)

Moving Forward
We understand several groups are preparing Amicus ("friend of the court") briefs to be delivered to the judge by the January 24 due date. Such briefs may or may not be read or used by the judge in determining the outcome of the case.

Directions Magazine has contacted several professional organizations to share their perspective on this lawsuit and its impact on the geospatial marketplace. We share their responses here. We'd also like to hear from readers: What have you heard about this legislation? The pending lawsuit? Will it impact you or your organization? Have you spoken out? To whom? Would your organization consider signing onto an Amicus brief as part of the geospatial community?


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