Responses on the Brooks Act Litigation

This Legal Briefing was prepared by Pillsbury Winthrop Shaw Pittman LLP, a leading and well-respected national law firm, at the request of the Association of American Geographers (AAG), to provide accurate, clear and legally-informed information regarding Claims actually asserted by the MAPPS plaintiffs in their lawsuit--and the potential consequences of these Claims--to our colleagues in the GIS Industry and in the broader Geography and Mapping Communities.

The AAG and its attorneys believe the MAPPS lawsuit is a serious threat to the GIS Industry and to the larger Mapping Community. Together with several other associations (URISA, GISCI, GITA, and UCGIS), the AAG has developed and filed an Amicus Brief and other legal documents in opposition to the litigation initiated by MAPPS. Additional information on this pending lawsuit, including the Amicus Brief and others documents related to the lawsuit, is available at www.aag.org. We encourage you to consult these documents so as to understand this issue as fully as possible.

The attached Legal Briefing statement may be printed in its entirety in Directions magazine to help provide accurate information to your many Directions magazine readers who could be negatively affected by the MAPPS litigation,

Urban and Regional Information Systems Association (URISA)
Board of Directors’ Position in MAPPS, et al. v. the United States of America

Background. The Management Association for Private Photogrammetric Surveyors (MAPPS) and three other associations filed suit in US federal court in June 2006 to compel US federal agencies to rewrite the definition of “surveying and mapping” used in federal procurement regulations for architectural and engineering services. The case was slated for a hearing on February 2 (since postponed to mid-February or later).

Specifically, the plaintiffs ask the court to order the Federal Acquisition Regulation (FAR) Council to:

…define "surveying and mapping" in such a way as to include contracts and subcontracts for services for Federal agencies for collecting, storing, retrieving, or disseminating graphical or digital data depicting natural or man made physical features, phenomena and boundaries of the earth and any information related thereto, including but not limited to surveys, maps, charts, remote sensing data and images and aerial photographic services'.

Response of the URISA Board of Directors

The URISA board opposes the plaintiffs’ claims because of their potential to harm our professions and our industry:

1. Their claims, if accepted, would expand the scope of architectural-engineering surveying and mapping far beyond the scope of any professional expertise certified by registration or licensing as a surveyor, engineer, or architect.

2. These claims are thus in fundamental conflict with the norms of professional practice across the geospatial professions.

3. The claims contradict the NCEES Model Laws and Rules, which URISA (and MAPPS, among others) have endorsed for several years.

4. The claims, if accepted by the federal courts, would not affect state licensing directly, but they would set an important precedent that would likely influence the development of state licensing and registration laws.

5. Acceptance of these claims would cause significant harm, in a variety of ways, to the majority of geospatial professionals—those who are not licensed surveyors, engineers, or architects.

6. Acceptance of these claims would place under the responsible supervision of licensed surveyors, engineers, or architects crucial federal geospatial services requiring expertise in geography, remote sensing, information science and technology, and numerous other specialties, all well outside the licensed professional competence of surveyors, engineers, or architects.

7. Placing these federal services under the control of persons lacking the professional expertise to oversee them would cause inefficiency and waste of public funds, and would risk significant harm to the public health, safety, and welfare.

8. Encouraging licensed professionals to claim competence in areas outside their professional expertise violates a fundamental tenet of professional ethics.

9. By seeking to expand via court order the scope of the surveying, engineering, and architecture professions, the plaintiffs are attempting to achieve by regulation what cannot be sustained through competition in a free market economy. Such regulation could only stifle innovation and growth in a highgrowth industry that is crucial to research, defense, and economic development.

The Board’s opposition is rooted in URISA’s core values as well as our professional interests. URISA is a non-profit professional and educational association that promotes the effective and ethical use of spatial information and information technologies for the understanding and management of urban and regional systems. It is a multidisciplinary association where professionals from all parts of the spatial data community can come together and share concerns and ideas. Such a community requires respect for the specialized expertise of the various professions that have contributed to our industry and to URISA. The plaintiffs’ claims would undermine those values by subordinating all geospatial professions to surveying and engineering, thereby disenfranchising the majority of URISA’s members and threatening the quality of spatial data available to the public.

Our opposition does not reflect in any way on the professions themselves, but simply on the plaintiffs’ claims in this court case. Likewise, while we disagree in court on this case, URISA and MAPPS will continue to find many issues where we agree and work together. And on this issue we will remain open to further discussion with the plaintiffs in alternate forums.

Contact: URISA Board of Directors, urisaboard@urisa.org

UCGIS POSITION ON MAPPS v. UNITED STATES

In June 2006, the Management Association for Private Photogrammetric Surveyors (MAPPS) and three other professional engineering societies filed suit against the United States government, on behalf of its Federal Acquisition Regulation Council (FAR Council). The lawsuit alleges that federal procurement policy conflicts with legislation known as the Brooks Act, which establishes that "surveying and mapping" are "professional services of an architectural or engineering nature," and which mandates that federal contracts for such services will be negotiated "on the basis of demonstrated competence and qualification…" (Public Law 92-582). Current federal procurement
policy exempts mapping services that are not connected to traditionally understood or accepted architectural and engineering activities from Brooks Act requirements. Nominally, the MAPPS lawsuit seeks to change the FAR such that "qualifications-based selection" will be used to contract any and all surveying and mapping services. The case will be heard on February 2, 2007, in federal district court in Alexandria, Virginia.

UCGIS believes that the intent of the MAPPS lawsuit is to ensure that federal government agencies which procure mapping services will give preference to state-licensed architects, engineers, and land surveyors. Of greater concern to UCGIS member institutions than the proposed changes to procurement policy is the implication that the practice of mapping (broadly defined), like the practice of land surveying, should be subject to state regulation.

UCGIS is committed to the advancement of geographic information science and technology (GIS&T) through multidisciplinary collaboration. UCGIS objects, therefore, to the MAPPS lawsuit insofar as it incorrectly implies that licensed architects, engineers, and land surveyors are most qualified to provide all mapping services. In fact, only a fraction of the 329 topics defined in the GIS&T Body of Knowledge pertain to architecture, engineering, or surveying. Geospatial technology professionals working in a wide range of unregulated fields demonstrate their competence on the job every day. In light of the diversity of GIS&T applications and practitioners, UCGIS believes that the current exemption in the FAR should be retained.

An important further implication for UCGIS member institutions is that state-regulated professions like architecture and engineering typically require university degree programs to be formally accredited by organizations like the Accreditation Board for Engineering and Technology (ABET). Recognizing that most of the diverse GIS&T programs offered by its member institutions are not subject to, or even amenable to such regulation, UCGIS is on record as opposed to accreditation.

UCGIS' tripartite mission includes promoting the informed and responsible use of geographic information science and geographic analysis for the benefit of society. UCGIS believes that the MAPPS lawsuit represents an attempt to disenfranchise many competent practitioners and educators. A ruling in favor of MAPPS and its co-plaintiffs has the potential to stifle multidisciplinary research, development, and applications of GIS&T, and thereby to undermine the effectiveness of public policies and programs related to GIS&T.

The National States Geographic Information Council (NSGIC) has worked for many years with other organizations to represent and educate its members on the issues surrounding Qualifications Based Selection (QBS), certification for the geospatial profession/industry, and implementation of the National Council of Examiners for Engineering and Surveying (NCEES) Model Law and Rules. Due to the diversity of our membership and the complexity of these issues it is difficult for NSGIC to support only one position. We feel the political or legal battling over these issues is not healthy for the industry that we all rely on, and that it reduces geospatial business development. Nor is it healthy for government agencies, because it causes government contracts to be delayed, government and private business reengineering to be delayed or cancelled, and significant technological solutions to be moved to secondary considerations. The cumulative effect of these impacts is that less work gets done.

We believe that the inter-relationship of these issues and their impacts should be addressed through open dialogue in a renewed and comprehensive effort by all interested organizations. The goal of any future attempts to resolve these issues should be the development of creative and amicable consensus-based solutions that lead to decisive guidance for all organizations and codification as required. NSGIC is willing to assign resources to work with the other organizations in order to make this happen.