Federal QBS suit moves forward

A group of professional societies and trade associations seeking to defend the Brooks Act qualifications-based selection (QBS) process for federal contracts for architectural, engineering, surveying, and mapping services won the first round in a lawsuit when U.S. District Judge T. S. Ellis, III of the Eastern District of Virginia ruled against the U.S. Government’s attempt to dismiss the case.

The Management Association for Private Photogrammetric Surveyors (MAPPS), the Council on Federal Procurement of Architectural and Engineering Services (COFPAES), the American Society of Civil Engineers, and the National Society of Professional Engineers filed a petition seeking a declaratory judgment directing the Federal Acquisition Regulation (FAR) Council to implement properly the government’s procurement regulations in FAR part 36.6 to provide for application of the Brooks Act’s selection procedures to a broad range of mapping services, and to comply with state licensing laws.

In response to the societies’ petition, the government filed a preliminary motion to dismiss, claiming that these professional organizations lacked proper standing to file its case because they are not directly affected by the FAR. In his Nov. 14, 2006, order, Judge Ellis denied the government’s motion, set an accelerated schedule for the case, and set the date for a hearing on dispositive motions for Feb. 2, 2007.

&quotWe are delighted the court has ruled in our favor,&quot said John Palatiello, administrator of COFPAES and executive director of MAPPS. &quotWe have worked for years to have this issue resolved administratively, but repeatedly found the government unwilling to address the body of law, legislative history, and intent of Congress. By granting the professional organizations our day in court, we can finally make our case and hear the government’s rationale for not acting to properly promulgate the regulations. We feel confident that when the court hears the preponderance of evidence that Congress has clearly provided that the Brooks Act applies to surveying and mapping services, it will rule in our favor.&quot

The lawsuit claims the officials responsible for writing the FAR have improperly thwarted the will of Congress as expressed in statutes and legislative history, as well as state licensing law, by limiting the types of surveying and mapping contracts procured via the QBS process by federal agencies.

The FAR currently provides that the Brooks Act applies to surveying, and to those mapping contracts &quotassociated with the research, planning, development, design, construction, or alteration of real property&quot is considered to be an architectural and engineering services and subject to the Brooks Act. However the FAR goes on to say &quotmapping 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&quot are to be procured pursuant to price competition provisions of the FAR. The last sentence is the subject of the legal action. The profession believes 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.

&quotWe are standing up for professionalism in the practice and protection of the public health, welfare, and safety so that procurement of surveying and mapping services is based on performance by qualified professionals on the basis of their competence and qualifications,&quot Palatiello said.