Editor’s Note: Directions Magazine continues coverage of the suit brought by the Management Association for Private Photogrammetric Surveyors (MAPPS). A ruling was handed down by the U.S. District Court of Eastern Virginia on June 15th. MAPPS, as the plaintiff, and others issuing amicus briefs, such as the American Association of Geographers, have issued subsequent statements. This article reviews the judge’s ruling and what might be expected in the next round of litigation.
After reading the judge's decision and the statements provided by AAG et al. and MAPPS on that decision, I found my head spinning a bit. Like most of you, I'm caught in the crossfire of legal documents and the statements intended to "explain" those documents.
How to proceed? I went back to what I learned in school: go to primary sources and read with care. So, I've arranged some quotes (plaintiff first) to help compare the statements/positions and highlight some common ground in the recent litigation.
Both MAPPS and AAG were provided with drafts of this document for review on June 22. MAPPS provided input; AAG was unable to provide input before press time.
Sources:
Memorandum Opinion (issued 6/14/07) – noted as "Judge" below
Geography, GIS, and Mapping Communities Support Court Ruling in MAPPS Lawsuit - Joint Press Release Issued By: Association of American Geographers (AAG), GIS Certification Institute (GISCI), Geospatial Information & Technology Association (GITA), University Consortium for Geographic Information Science (UCGIS), Urban and Regional Information Systems Association (URISA) - noted as "AAG" below.
MAPPS Releases Statement on QBS Litigation Ruling – noted as "MAPPS" below:
What the suit is about:
… [the suit questions] whether the Federal Acquisition Regulations (FAR) properly implement the Federal “Brooks Act” and its application to a broad scope of surveying and mapping, as repeatedly prescribed by Congress on numerous occasions and under numerous provisions of enacted law. (MAPPS)
The U.S. District Court in Alexandria, Virginia last week ruled against special interest groups seeking to strictly limit government contracting for mapping and GIS activities. (AAG)
The "Management Association for Private Photogrammetric Surveyors" (MAPPS) filed the lawsuit earlier this year seeking to limit competition for federal mapping contracts of nearly every type, including GIS services, to firms of licensed architects, engineers and surveyors. (AAG)
[Plaintiffs] challenge as arbitrary and capricious the federal government’s failure to initiate a new rulemaking and promulgate a new regulation in response to an amendment to the Brooks Act governing federal procurement of certain architectural and engineering (A-E) services. (Judge)
[The] plaintiff’s complaint challenges not a regulation, but instead the agency’s failure to initiate a new rulemaking. (Judge)
…in 1988, the [Brooks] Act was amended to define A-E services, in pertinent part, as follows:
(A) professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide the services described in this paragraph; . . .
(C) other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professional (and individuals in their employ) may logically or justifiably perform, including . . . surveying and mapping... .
40 U.S.C. § 1102(2). It is the scope and content of this language and the regulatory response to it that is at the heart of the parties’ dispute in this case. Plaintiffs contend that a new regulation must be promulgated that is consistent with the 1988 amendment and hence would require all mapping contracts to be procured solely via QBS. Defendant responds that the current regulatory regime, which allows some mapping contracts to be procured via non-QBS procedures, is fully consistent with the 1988 amendment. (Judge)
Commentary: There is currently disagreement about the nature and potential outcome of the case. I see no evidence in the ruling that the case concerns limiting competition for mapping contracts.
Decision:
In the matter of MAPPS, et al., v. United States of America, Judge T.S. Ellis III issued a summary judgment in favor of the government based on the MAPPS plaintiffs' failure to "establish that an injury in fact was suffered by the individual surveyors or their firms." (AAG)
In a decision based entirely on process, the Federal District Court for the Eastern District of Virginia has ruled that MAPPS and its co-plaintiffs do not have standing… (MAPPS)
For these reasons, the affidavits do not establish that an injury in fact was suffered by the individual surveyors or their firms, and accordingly, no standing exists. Accordingly, summary judgment must be granted in favor of the government. (Judge)
Commentary: There is agreement that the judge ruled the plaintiffs did not have standing to bring the challenge.
Rulings:
…the Court did reaffirm the fact that where an applicable state licensing law requires performance by a licensed surveyor, a Federal agency must abide by that state law and use QBS on the contract. (MAPPS)
…the Court did not accept the claim of the amicus parties, that only licensed architects, engineers or surveyors would be able to do Federal mapping contract work if the Court ordered QBS. The Court’s ruling reaffirms MAPPS contention that this was not an issue in the case. (MAPPS)
"The government argues … the [Brooks] Act and the [Federal Acquisition] regulations make clear that when state law requires QBS, so does the Brooks Act.7" (Judge)
7This conclusion allegedly follows because 48 C.F.R. § 36.601-4(a)(1) requires QBS procurement of services required by state law to be performed by a registered architect or engineer.
Commentary: I do not find a specific statement in the decision to support the first statement (reaffirming QBS is to be used where state law requires licensed service providers). I understand the statements from the judge on the topic (paragraphs 3 and 4 above) as reiterating the defendant's position, not the judge's legal opinion.
The only support for the second statement (the claim of the amicus parties, that only licensed architects, engineers or surveyors would be able to do Federal mapping contract work if the Court ordered QBS) is that the topic was not covered in the decision. I am uncertain if this omission confirms that such an outcome is not possible.
Future:
By ruling on process, the Court did not address the legal merits and policy issues of the case as presented by MAPPS and its co-plaintiffs, which means the question of QBS applicability to mapping is unresolved and leaves the door open to further litigation. (MAPPS)
MAPPS remains committed to professionalism and the ability of our members and others to fully and openly compete for Federal contracts based on competence and qualifications, rather than on price. MAPPS remains committed to protecting the public health, welfare and safety. (MAPPS)
Commentary: Further legal action from MAPPS or others may occur. MAPPS' counsel is currently looking into the options available.
Mapping:
MAPPS is also heartened by the fact that the court noted, “the record unambiguously reflects that the provision of ‘mapping’ services in the modern marketplace includes a much broader scope of work than the traditional mapping work of land surveyors.” MAPPS strongly agrees with this statement. It is the essence of the substance in the case. (MAPPS)
It is also worth noting that the record unambiguously reflects that the provision of "mapping" services in the modern marketplace includes a much broader scope of work than the traditional mapping work of land surveyors. See Affidavit of Douglas Richardson, filed as Exhibit A to Brief Amicus Curiae of Association of American Geographers et al. (Judge)
Commentary: There is agreement that modern mapping includes far more than traditional land surveying.
After reading the judge's decision and the statements provided by AAG et al. and MAPPS on that decision, I found my head spinning a bit. Like most of you, I'm caught in the crossfire of legal documents and the statements intended to "explain" those documents.
How to proceed? I went back to what I learned in school: go to primary sources and read with care. So, I've arranged some quotes (plaintiff first) to help compare the statements/positions and highlight some common ground in the recent litigation.
Both MAPPS and AAG were provided with drafts of this document for review on June 22. MAPPS provided input; AAG was unable to provide input before press time.
Sources:
Memorandum Opinion (issued 6/14/07) – noted as "Judge" below
Geography, GIS, and Mapping Communities Support Court Ruling in MAPPS Lawsuit - Joint Press Release Issued By: Association of American Geographers (AAG), GIS Certification Institute (GISCI), Geospatial Information & Technology Association (GITA), University Consortium for Geographic Information Science (UCGIS), Urban and Regional Information Systems Association (URISA) - noted as "AAG" below.
MAPPS Releases Statement on QBS Litigation Ruling – noted as "MAPPS" below:
What the suit is about:
… [the suit questions] whether the Federal Acquisition Regulations (FAR) properly implement the Federal “Brooks Act” and its application to a broad scope of surveying and mapping, as repeatedly prescribed by Congress on numerous occasions and under numerous provisions of enacted law. (MAPPS)
The U.S. District Court in Alexandria, Virginia last week ruled against special interest groups seeking to strictly limit government contracting for mapping and GIS activities. (AAG)
The "Management Association for Private Photogrammetric Surveyors" (MAPPS) filed the lawsuit earlier this year seeking to limit competition for federal mapping contracts of nearly every type, including GIS services, to firms of licensed architects, engineers and surveyors. (AAG)
[Plaintiffs] challenge as arbitrary and capricious the federal government’s failure to initiate a new rulemaking and promulgate a new regulation in response to an amendment to the Brooks Act governing federal procurement of certain architectural and engineering (A-E) services. (Judge)
[The] plaintiff’s complaint challenges not a regulation, but instead the agency’s failure to initiate a new rulemaking. (Judge)
…in 1988, the [Brooks] Act was amended to define A-E services, in pertinent part, as follows:
(A) professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide the services described in this paragraph; . . .
(C) other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professional (and individuals in their employ) may logically or justifiably perform, including . . . surveying and mapping... .
40 U.S.C. § 1102(2). It is the scope and content of this language and the regulatory response to it that is at the heart of the parties’ dispute in this case. Plaintiffs contend that a new regulation must be promulgated that is consistent with the 1988 amendment and hence would require all mapping contracts to be procured solely via QBS. Defendant responds that the current regulatory regime, which allows some mapping contracts to be procured via non-QBS procedures, is fully consistent with the 1988 amendment. (Judge)
Commentary: There is currently disagreement about the nature and potential outcome of the case. I see no evidence in the ruling that the case concerns limiting competition for mapping contracts.
Decision:
In the matter of MAPPS, et al., v. United States of America, Judge T.S. Ellis III issued a summary judgment in favor of the government based on the MAPPS plaintiffs' failure to "establish that an injury in fact was suffered by the individual surveyors or their firms." (AAG)
In a decision based entirely on process, the Federal District Court for the Eastern District of Virginia has ruled that MAPPS and its co-plaintiffs do not have standing… (MAPPS)
For these reasons, the affidavits do not establish that an injury in fact was suffered by the individual surveyors or their firms, and accordingly, no standing exists. Accordingly, summary judgment must be granted in favor of the government. (Judge)
Commentary: There is agreement that the judge ruled the plaintiffs did not have standing to bring the challenge.
Rulings:
…the Court did reaffirm the fact that where an applicable state licensing law requires performance by a licensed surveyor, a Federal agency must abide by that state law and use QBS on the contract. (MAPPS)
…the Court did not accept the claim of the amicus parties, that only licensed architects, engineers or surveyors would be able to do Federal mapping contract work if the Court ordered QBS. The Court’s ruling reaffirms MAPPS contention that this was not an issue in the case. (MAPPS)
"The government argues … the [Brooks] Act and the [Federal Acquisition] regulations make clear that when state law requires QBS, so does the Brooks Act.7" (Judge)
7This conclusion allegedly follows because 48 C.F.R. § 36.601-4(a)(1) requires QBS procurement of services required by state law to be performed by a registered architect or engineer.
Commentary: I do not find a specific statement in the decision to support the first statement (reaffirming QBS is to be used where state law requires licensed service providers). I understand the statements from the judge on the topic (paragraphs 3 and 4 above) as reiterating the defendant's position, not the judge's legal opinion.
The only support for the second statement (the claim of the amicus parties, that only licensed architects, engineers or surveyors would be able to do Federal mapping contract work if the Court ordered QBS) is that the topic was not covered in the decision. I am uncertain if this omission confirms that such an outcome is not possible.
Future:
By ruling on process, the Court did not address the legal merits and policy issues of the case as presented by MAPPS and its co-plaintiffs, which means the question of QBS applicability to mapping is unresolved and leaves the door open to further litigation. (MAPPS)
MAPPS remains committed to professionalism and the ability of our members and others to fully and openly compete for Federal contracts based on competence and qualifications, rather than on price. MAPPS remains committed to protecting the public health, welfare and safety. (MAPPS)
Commentary: Further legal action from MAPPS or others may occur. MAPPS' counsel is currently looking into the options available.
Mapping:
MAPPS is also heartened by the fact that the court noted, “the record unambiguously reflects that the provision of ‘mapping’ services in the modern marketplace includes a much broader scope of work than the traditional mapping work of land surveyors.” MAPPS strongly agrees with this statement. It is the essence of the substance in the case. (MAPPS)
It is also worth noting that the record unambiguously reflects that the provision of "mapping" services in the modern marketplace includes a much broader scope of work than the traditional mapping work of land surveyors. See Affidavit of Douglas Richardson, filed as Exhibit A to Brief Amicus Curiae of Association of American Geographers et al. (Judge)
Commentary: There is agreement that modern mapping includes far more than traditional land surveying.
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