May 21, 2004

Comment to: General Services Administration
FAR Secretariat (MVA)
1800 F Street, NW., Room 4035
Washington, DC 20405
Attn: Laurie Duarte

Re: Federal Register
March 23, 2004
Volume 69, Number 56
Page 13499-13500
Proposed Rules
48 CFR Part 36 - Mapping in FAR Part 36

From: MAPPS

Traditionally, government procurement procedures properly have emphasized awarding contracts to the lowest bidder, or using price as a dominant factor. For many goods which government purchases paper, office equipment, desks, even construction services this process serves the government and the taxpayer well. Specifications can be written, products can be inspected and tested and safeguards can be built in to assure saving money.

Sometimes, however, agencies mistakenly assume professional mapping services fall into this category.

Unfortunately, the assumption ignores the increase in costs to administer the preparation of detailed scopes of work and bid specifications, evaluation of numerous bids, and to remedy serious consequences of unprofessional surveying and mapping. Quality, therefore, should always be the primary focus in the competition for surveying and mapping procurements. Only after high quality performance is ensured should the focus turn to the contract price.

Fifty states impose strict educational and registration or licensing requirements for surveying professionals, and many including mapping in such licensing laws. The high standards established by organizations for their members exemplify the professional nature of their work.

State licensing standards and government procurement regulations for professional services should be designed to protect the public health and safety during and after contract performance. Indeed, some state licensing boards prohibit licensed professionals under their jurisdiction from engaging in competitive bidding to secure work.

If inaccurate, a map could cloud land titles or jeopardize subsequent construction designs, planning activities or program management that must rely on accurate mapping data. Just as a poorly designed dam can burst, subjecting the state to huge claims, so too can a poorly planned or executed map unleash a flood of problems, creating an impediment to the expeditious completion of a government project, causing substantial loss of time and money, and jeopardizing the public safety. Like a well made dam, a high quality map will stand the test of time and will ensure that the government can proceed with its design, construction or resource planning project based on complete and precise groundwork.

In addition to the direct cost of the contract, the government must be concerned about such consequent indirect costs as physical destruction of property or clouded claims that could result from poor quality workmanship.

The government should negotiate contracts for these services independent of other professional design or construction services to ensure that specialized mapping skills and technologies are evaluated properly and not overlooked. In this manner, the government will benefit from direct control of both the quality of the services and the map's development.

The use of negotiated procedures directs the focus of procurement activity where it should be, on the quality of the mapping services specifically suited to a given contract. All competitors must submit their qualifications to the procuring agency; the agency assesses the relative expertise of the competing firms; and the one most qualified firm is selected for the particular procurement. Such procedures produce a more cost effective survey than can be achieved under price bidding or best value procedures. Several reasons for this are as follows:

1. Negotiated procedures afford built-in protection, since either the selection process eliminates unqualified firms, or the negotiations reveal a firm's comparative lack of expertise. In either case, the problem is discovered before the contract is awarded, not after the job is done. Under price bidding procedures, however, the low bidder wins, regardless of the marginal capabilities it may have demonstrated previously.

2. The extreme difficulty of defining adequately, in advance of negotiations, the quantity and quality of the mapping and photogrammetric services to be secured is likely to lead to misunderstandings as to the scope of the services to be rendered and the expectations of the government concerning the services and the desired project. The negotiating process allows the government to work as a team with qualified professionals to refine the government's contract requirements and develop more tailored, economical mapping. Thus, in the pre-contract stage, the agency benefits from the professional's years of experience and demonstrated competence.

3. The government saves substantial administrative costs of preparing detailed specifications that would be required under price bidding procedures to avoid widely varying interpretations by competing bidder. The government also saves significant personnel costs if it can employ a few specialists to review qualifications, negotiate contracts and specialists to review qualifications, negotiate contracts and monitor or inspect performance -- rather than maintain the large staff needed to process numerous bids received on each procurement and evaluate the qualifications of each of those bidders, as well as execute and monitor contract performance.

4. Negotiated procedures ultimately result in more efficient, economical procurements for the competing professional firms as well as the government, because of the very nature of surveying and mapping. Since only the top ranked firms need to prepare boundary analyses and detailed estimates on the work, other competitors are free to pursue other contract opportunities without wasting money on a contract they will not win.

6. The government must be mindful of the indirect or hidden costs, such as legal fees, court expenses and insurance claims that it can incur when boundary, trespass and other property disputes are caused by outdated or erroneous maps. By negotiating contracts with private mapping professionals, the government can save in-house costs and increase mapping outputs significantly. Historically, more firms compete, and thus the government gets a better service at a fairer price, when QBS is used. Government inspection or quality control of a mapping project to monitor contract compliance is much more difficult than inspection of manufactured products or other professional services. The map's geographic scope is often immense, and the only effective way the government can check for accuracy is to retrace the entire map. Even a trained eye cannot find a map's critical flaws that could threaten the public's safety and its pocketbook in future years. Unlike materials, a map cannot be adequately sampled before and thoroughly tested after production. The client or owner is totally dependent upon the integrity of his mapping professional -- you might say he is at his mercy -- for even a bad mapping plan can look good. It often takes months or years before errors and problems are discovered. Maps are tied to existing control points on the ground, the location and condition of which are uncertain until a survey is performed. Legal descriptions of boundaries may, or may not, indicate physical monuments. These physical monuments may or may not be still in existence on the ground. If they do exist, they may or may not be the original monuments, and they may or may not fit other physical evidence in the area. One cannot price the unknown. Mapping is usually dependent on other exiting surveys and recorded documents. The evaluation of such surveys or documents is a matter of judgment which cannot be made until the professional has researched the project, both in the field and in the repository of deeds. He may find that as the result of his new work, the existing survey may have to be rerun to achieve the accuracy required by the client, even though the records of the existing survey indicated otherwise beforehand. He may find deeds or other documents that will affect the interpretation of the client's land description. These conditions may not be known, nor even suspected, until the survey is substantially started. Mapping is weather dependent. Cloud cover, storms, excessively hot weather, floods, rain, wind and other inclement conditions can delay or prolong an aerial photography and mapping project for indefinite periods of time. Precise leveling is extremely sensitive to the vagaries of weather. Fog affects sighting lengths. Wind affects instrumentation and measurement. Cloud cover prevents collection of data on project areas. Delays cost money. The decision to stop or delay the operation should be based on a determination that the quality of the result will suffer, rather than on a profit-loss motive. The accuracy of a map depends upon the manner and the conditions under which the work is performed and not just on the accuracy of closures. A map could close within specified tolerances, but the work could be unacceptable because of the methods used. By requesting bids, a client assumes the responsibility for defining the scope of the services required and, thus, does not take any advantage of the knowledge and background of qualified professional engaged in providing such services. All too few administrators and even engineers are knowledgeable in mapping, and their inadequacy in this regard is apparent in their requests for bids. The knowledgeable person is aware of the indeterminate nature of mapping. The reputable professional, if he is to bid, must either attempt to anticipate the many possible problems, determine which problems he feels will occur, and bid accordingly, or bid so high that he can include every possible condition (in which case he undoubtedly will not be the successful bidder). If an honest attempt is made and unforeseen conditions occur, the mapper faces the decision to adhere to the specifications, thereby producing an inferior product (which he cannot ethically do) or perform the work to the best of his ability, thereby operating at a loss. Either way, the client/taxpayer is the ultimate loser.

Numerous cases can be cited to prove that the lowest bid does not necessarily result in the lowest overall cost. The old cry, "Bid as low as you dare, but make your money on the extras," is inevitable and the resulting relationship between the government client and his surveyor assumes an arms length status which is not only not conducive to the completion of professional assignments, but in fact, effectively eliminates any exercise of professional judgment on the part of the mapper.

A broad coalition of design-related organizations supports qualifications-based selection procedures for surveying and mapping services. The Federal competence and qualifications-based selection law was codified in 1972 to protect the interest of taxpayers. It is Federal law because over the life of a project, the engineering and related design services account for less than one-half of one percent of total costs. Yet, these important services play a major role in determining the other 99.5 percent of the project's "life cycle costs", such as construction, operation, and maintenance. The same is true of the associated mapping or geographic information systems (GIS) project.

This process has been so successful at the Federal level that it is recommended by the American Bar Association in its model procurement code for State and local government. The ABA model code specifically includes surveying and mapping. More that half the States have enacted their own competence and qualifications-based selection laws for architecture, engineering, surveying and mapping services. Others use it as a standard procedure. No state has a specific law requiring bidding of these services.

LEGISLATIVE HISTORY The basis for present statutory authority for procurement of personal and professional services, such as surveying and mapping, can be traced back to an 1861 Appropriations Act. 12 Stat. 214 (1861). This Act provided for the appropriation of funds for various purposes, including the compensation of civilian surveyors. Section 10 directed that all contract for supplies or services be made by advertising for proposals "except for personal services." Id. at 220. A year later, the Attorney General ruled that a contract for surveying was a contract for personal services within the meaning of the Act and, therefore, could be made without advertisement and competitive bidding. 10 Op. Atty. Gen. 261 (1862). In reaching his decision, the Attorney General observed: “...although this policy (price competition) is certainly desirable in all cases, there are yet some to which it cannot well be applied. Such are contracts for services which require special skill and experience... In all contracts for services which presuppose trained skill and experience, the public officer who employs the service must be allowed to exercise a judicious discrimination, and to select such as, in his judgment, possesses the required qualifications. ”Of this class are contracts for surveying the public lands. The service to be performed requires not only fidelity and integrity, but a certain kind of skill and knowledge, and the officer whose duty it is to let the contract, is bound to know that the person he employs possesses these qualifications. It is not half so important to have the work done cheaply as to have it done well, and the price to be paid for it, whilst it should be but fair and reasonable, out to be far from controlling consideration•. (Id. at 262 (emphasis added). From 1939 until 1972, the Congress enacted a number of statutes whose provisions and legislative history referenced selection of A/E and other professional consultant's services by traditional negotiation -- rather than competitive bidding -- procedures. The common thread in all of these various enactments was that procurement of professional personnel, such as architects, engineers, surveyors and mappers, should be exempt from the various statutory requirements for military procurement by competitive price bids. The rationale for this policy decision, which the Congress made repeatedly from 1861 on, was that contracts from such services should be negotiated on the basis of demonstrated competence and qualifications for the type of professional services required and at fair and reasonable prices. In 1972, the Congress responded by enacting Public Law 92-582, the Brooks Act. 86 Stat. 1278 (codified at 40 U.S.C. 541-544 (1976)). The purpose of the Act was: "to establish Federal policy concerning the selection of firms and individuals to perform architectural, engineering, “and related services” for the Federal government." See Preamble to Pub. L. No. 92-582, 86 Stat. 1278; H. Rep. No.188, 92nd Cong., 2d Sess. 1 (1972). This government-wide policy reflected the traditional approach used by both military and civilian agencies for many years. As the Senate Report explains: “Congress has made it clear on several occasions (e.g., H. Rept. 90-1869) that the traditional method of selecting architects and engineers is to be followed by the military agencies.” Since the military agencies are currently following the architect-engineer selection procedures as set forth in H.R. 12807, and “would be expected to continue such procedures in accordance with the statement of policy contained in H.R. 12807, further amendment to the military procurement law is not deemed necessary.” S. Rep. No. 1219, 92d Cong., 2d Sess., reprinted in• (1972) U.S. Code Cong. & Ad. News 4771.2. The Brooks Act defined "architectural and engineering services" as including, “Those professional services of an architectural or engineering nature as well as incidental services that members of these professions and those in their employ may logically or justifiably perform.” 40 U.S.C. 541(3)(1976). According to the Senate Report, the definition requires the utilization of the method of selecting provided in the bill for the procurement of architectural or engineering services, or also when the scope and nature of the proposal, to a substantial or dominant extent, logically falls within the unique expertise of these professions ... The purpose of this definition is to encompass all of the services which architects and engineers might logically or justifiably perform. S. Rept. No. 1219, 92d Cong., 2d Sess., reprinted in (1972) U.S. Code Cong. & Ad. News 4773. The terms "related," "incidental" and "ancillary" services were used throughout the Brooks Act and its legislative history to include other professional services that historically have been related to A/E services, such as surveying and landscape architecture. The Preamble, as well as the legislative history, of the Brooks Act reinforced an expansive reading of the term "incidental services." These sources stated as the express purpose of the legislation: “to establish Federal policy concerning the selection of firms and individuals to perform architectural, engineering and related services for the Federal Government,...” H. Rep. No. 1188, 92d Cong., 2d Sess. 1 (1972); S. Rep. No. 1219, 92d Cong., 2d Sess., reprinted in (1972) U.S. Code Cong. & Ad. News 4773. The reports went on to define "professional services as those of an architectural or engineering nature,"...as well as “ancillary services”, that member of these professions and those in their employ may logically or justifiably perform. The purpose of this definition is to encompass all of the services architects or engineers might logically or justifiably perform.”Id From the statutory language and legislative history of the Brooks Act it is evident that the Congress intended to ”include• in the term "architectural and engineering services" other directly related services, such as surveying and mapping, that traditionally have been considered professional services, whether or not they actually constitute services "of architectural or engineering nature" (to use the words of the Brooks Act). The professional stature accorded to the surveying and mapping professions ranks them equal or at least incidental to A/E services, because they require similar professional skills, experience, educational and licensing qualifications.

Further indication that the definition of A/E services was broad in scope and the provisions of the bill were intended to cover other related licensed professionals is found in the following comments made during the Senate debate: Mr. Jackson: This legislation would not establish any new policy regarding the procurement of architect-engineer services by Federal agencies, but it would confirm long-established existing practices whereby such professional services are secured by a professional selection and negotiation process under which the emphasis is on professional qualification and expertise for the specialized services which are needed from time to time for the Federal agencies to carry out their missions...we have over the years excluded professional services from the normal competitive bidding requirements for government purchase of services (41 U.S.C. 252(c), 10 U.S.C. 2304(a), 41 U.S.C. 5). Id. at 36182. Mr. Randolph: Ask 10 A/E firms to bid on the design of a particular facility and many agencies will take the easy way out and select the low bidder. Under such circumstances, we may end up with a technically capable architect or engineer, but one who, for lack of experience or because of a desire to stay within his bid reduces the time spent on field surveys or in the preparation of detailed drawings, or in providing inspection services. As a result, the government may have saved itself a half of one percent to the cost of construction, operation or maintenance. Id. at 36188.

Senator Jackson's statement was useful in highlighting much of the precedents and statutory directives to the military and civilian agencies to use traditional negotiation procedures to procure personal professional services on the basis of professional qualifications and expertise.

For purpose of these comments and the instant rule-making notice, however, Senator Randolph's view of the importance of the Brooks Act's procedures is far more significant. Senator Randolph's support for the Brooks Act was based in part of his concern that corners would be cut in conducting field surveys, which, of course, includes topographic surveys, which are delivered to clients on maps. The Senator's statement would have made little sense if the Brooks Act procedures did not cover procurement of field surveys, including mapping.

Interpretation of the Brooks Act

Federal agencies continued to use the negotiation procedure for surveying and mapping procurements after enactment of the Brooks Bill, just as they had previously. In 1977, however, the Comptroller General issued what has become a landmark decision in the field of architecture, engineering, surveying and mapping. The matter of Ninneman Engineering - reconsideration (B-184770)(March 9, 1977) is significant not only for what the Comptroller said, but more importantly for what was not said, and how it has since been interpreted by federal agencies and subsequent GAO opinions.

In the initial Ninneman decision, 85-year old Jack Ninneman represented himself in his bid protest without knowledge of the legal precedents for surveying procurement by negotiation. After Mr. Ninneman prevailed, and without his knowledge, the Forest Service requested reconsideration. On reconsideration, the GAO adopted the Forest Service's arguments. A later GAO ruling followed with regard to mapping for the USGS.

The GAO and the Forest Service concluded that because the cadastral survey (boundary survey of national Forest System lands) involved in “Ninneman” was not related or "incidental" to any potential construction project, the survey properly could have been (but was not required to be) procured under competitive statutes and regulations. The GAO and the Forest Service interpretation that "incidental" meant a service incidental to a particular construction project was a departure from the long-standing administrative practice that was codified by the Brooks Act. Neither the GAO not the Forest Service, however, questioned the applicability of traditional procedures to construction-related surveying and mapping services. For purposes of this comment and the instant rule-making notice, it is also important to note that the Comptroller General in “Ninneman”, upheld the Forest Service's authority to follow the procedures used. No decisions have been found in which the Comptroller General has concluded that no agency lacked the authority to follow traditional (or Brooks Act) procedures in selecting professionals. Indeed, in a 1966 opinion, the Comptroller General set forth a list of "the types of A/E services" which included "(s)urveys: Topographic, boundary utilities" among the services excluded by the General Services Administration from the six percent limitation.

See: U.S. Comp. Gen., B-152306, ”Government-wide Review of the Administration of Certain Statutory and Regulatory Requirements relating to Architect-Engineer Fees•, Report to the Congress 67 (Apr. 20, 1967) (reprinting the 1966 opinion).

Since 1977, some federal agencies determined that the “Ninneman” decision prohibited the use of Brooks Act procedures for surveying and mapping procurements, and A/E procurements not incidental to construction.

The Comptroller General has since ruled, however, that "the language of the (Brooks) statute does not limit the scope of the selection procedures to construction-related A/E services." The decision went on to point out that

"it is reasonable to assert that Congress intended the military to adhere to those traditional methods of A/E selection embodied in the Brooks Act to the same extent as the civilian agencies of the Federal Government. It is reasonable to read the exception for A/E contractor selection...as applying to A/E contract generally, rather that to construction only."

See: U.S. Comp. Gen., B-199548.2, Association of Soil and Foundation Engineers -- Reconsideration, August 13, 1982.

Since the date of that decision, Congress has codified the A/E selection procedures of 40 U.S.C. 541 et. seq. for use by military agencies. Congress included language in the Military Construction Codification Act (Pub. L. No. 97-214) to codify (a) the Comptroller General's decision (b) the military agencies' authority to use the "traditional" method of awarding architect-engineer contracts (as provided in annual Military Construction Authorization Act from 1970 through 1982) and (c) the original intention that surveying and mapping services were to be covered by the Brooks Act. The Act added a new Section 2855 to 10 U.S.C. to read as follows:

"2855. Law applicable to contracts for architectural and engineering services and construction design

Contracts for architectural and engineering services and construction design in connection with a military construction project or a military family housing project shall be awarded in accordance with title IX of the Federal Property and Administration Services Act of 1949 (40 U.S.C. 541 et. seq.)."

The reports of the House and Senate Committees on Armed Services (H. Rept. 97-612, S. Rept. 97-474) provide (at 19) that

"Architectural and engineering services and construction design include all engineering services and design required for a proposed military construction project -- site investigations, surveys and maps ... .

As of October 1, 1982, the effective date of Pub. L. No. 97-214, all military agencies have been using Brooks Act procedures for surveying and mapping contracts.

Congress provided clear an unambiguous statutory authority in Public Law 98-63, a bill making supplemental appropriations for FY 1983.

"Contracts for architect and engineering services, and surveying and mapping services, shall be awarded in accordance with title IX of the Federal Property and Administration Services Act of 1949 (40 U.S.C. 541) et. seq.)." (H.R. 3069, page 11, 98th Congress, 1st Session) As a result of that language, the Corps of Engineers (civil work division, which is not a title 10 agency) returned to the Brooks Act procedure for surveying and mapping procurements. The Corps also promulgated a broad and expansive definition of surveying and mapping subject to Brooks Act procedures (SEE EFARS 36.601-4), which is the basis for the language in the instant Federal Register notice. In providing explanation of the provision, Congress appeared to have intended to make the authority both permanent and government-wide. Although the relevant language is provided in the Corps of Engineers section of the bill’s accompanying report, (H. Rept. No. 98-207, 98th Congress, 1st Session. (at pp. 40 & 100)), the language is repeated under a section entitled "Changes in the Application of Existing Law" (at p. 111) without qualification or limitation of its application. This fact was underscored by the Congress when the Competition In Contracting Act first passed the Senate. Prior to its inclusion in the Budget Deficit Reduction Act, (P.L. 98-369), the Senate considered and passed S. 338, the original Competition in Contracting Act, on November 11, 1983. During Senate debate on the bill, Senator Cohen, the bill's sponsor, and Senator Percy, a Senate manager of the Brooks Act in 1972, engaged in a colloquy to clarify the intent of Congress with regard to the application of the Brooks Act to surveying and mapping services.

Mr. Percy. Mr. President. I rise with an inquiry. The Competition In Contracting Act would revise the Federal Property and Administrative Services Act to broaden the requirements for competition, but the language of section 303 contains the words "...except as ...otherwise authorized by law...," carrying forward a very important distinction made in the Brooks Act, 40 U.S.C. 541. The distinction provides that architect and engineering services, defined as "those professional services of an architectural or engineering nature as well as incidental services that members of these professions and those in their employ may logically or justifiably perform," may be procured by competitive negotiation -- a time-tested method for acquiring professional services of this kind. Am I correct that this important distinction will be preserved under the language of section 303?

Mr. Cohen. Yes; it would be preserved.

Mr. Percy. I thank the Senator. I have also been concerned that the Comptroller General has given an overly restrictive interpretation to this definition of architecture and engineering services, and has decided on several occasions that surveying and mapping services are not included. However, the issue has been more recently addressed in the Supplemental Appropriations Act for 1983. The section of that act appropriating funds for the Corps of Engineers of the Department of the Army provides that "contracts for architect and engineering services, and surveying and mapping services, shall be awarded in accordance with title IX of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 541 et seq.)..." Under this language, the Corps of Engineers will award contracts for mapping and surveying in accordance with the Brooks Act.

Mr. Cohen. That is a positive step. I think it is important to note, moreover, that this language does not only apply to the Corps of Engineers, but to all Government procuring agencies.

Mr. Percy. Would the Competition in Contracting Act then carry forward the construction of the Brooks Act contained in that language from the Supplemental Appropriations Act?

Mr. Cohen. That is correct.

Mr. Percy. I thank the Senator from Maine for his most helpful clarification.

[See: Cong. Rec. (Daily Edition) Vol. 129, No.155, November 11, 1983, p. S.16007]

It is apparent Congress intended to make application of the Brooks Act to surveying and mapping services permanent and government-wide. This is not only evident by the aforementioned colloquy between Senators Percy and Cohen, but also by the construction of the provision in the 1983 Supplemental Appropriation Public Law 98-63).

If Congress had intended for the appropriation language to be limited to the balance of FY 1983, the provision would have been prefaced by "None of the funds appropriated by this Act..." If Congress had intended for the language to be limited to the Corps of Engineers, the provision would have been prefaced by "The Secretary of the Army, acting through the Chief of Engineers is hereby authorized..." or similar qualifications and limitations.

During the 99th Congress, several actions were taken on pending legislation to once again clarify the intent of Congress that surveying and mapping services should be procured by the Brooks Act process.

Legislation reauthorizing Superfund, the Comprehensive Emergency Response, Compensation and Liability Act (CERCLA) (also known as “Superfund”)to clean up hazardous waste sites includes a provision requiring use of the Brooks Act for Federal, State and private surveying and mapping contracts and subcontracts. The language provides

Sec. 118 (e) "...Response action contractors and subcontractors for program management, construction management, architectural and engineering, surveying and mapping and related services shall be selected in accordance with title IX of the Federal Property and Administrative Services Act of 1949.

See: 42 U.S.C. 9619(f)

Language to require the Defense Mapping Agency to use the Brooks Act for its surveying and mapping contracts was included in the Fiscal Year 1986 Department of Defense Appropriations Bill, H.R. 3629. It provided

“Sec. 8088. None of the funds appropriated in this Act shall be used for professional surveying and mapping services performed by contract for the Defense Mapping Agency unless those contracts are awarded in accordance with the selection procedures outlined pursuant to section 2855 of title 10, United States Code.”

See: Public Law 99-190 The report of the Committee on Appropriations provided further clarification of the intent of the provision "A new general provision (section 8088) has been added that directs the Defense Mapping Agency (DMA) to evaluate contractors for professional mapping, charting and geodetic services on the basis of demonstrated competence and qualifications. This general provision clarifies these professional mapping, charting and geodetic services as architecture, engineering and related services, requiring the services to be procured in accordance with 10 United States Code 2855 for military agencies and 40 United States Code 541 et. seq. for civilian agencies." See: H. Rept. 99-253 Part I at pgs. 24, 93 Congress then followed that action the enactment of a number of additional pieces of legislation – all with the same intent; to provide for application of the Brooks Act to a broad, government-wide family of mapping services. The Brooks Act itself was amended in 1988 (section 742 of PL 100-656 and section 8 of PL 100-679. The definition of A/E services was modified to provide: (1) The term ``architectural and engineering services'' means— (A) professional services of an architectural or engineering nature, as defined by State law, if applicable, which are required to be performed or approved by a person licensed, registered, or certified to provide such services as described in this paragraph; (B) professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and (C) such other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services. (emphasis added). Congress provided no limitation to this provision. The legislative history shows Congress intended a broad, government wide application of the provision. In debate in the Senate, Senator Breaux said: “By surveying and mapping, I am referring to the many professional services the Government obtains from private surveying and mapping firms. This includes 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 oaf which, under this provision, is provided by licensed, certified or otherwise qualified professionals, such as surveyors, geodesists and photogrammetrists. Under this provision, if there is an applicable State licensing law, it shall be followed.” SEE: Congressional Record, Daily Edition, October 18, 1988, p. S16672-3. In the House, Rep. Myers commented: (s)ince the measure known as the Brooks Act was enacted in 1972, there have been a number of Comptroller General decisions which have had the effect of narrowing the application of the law, particularly in the field of surveying and mapping. The purpose of the new definition in the bill before us is to recognize the realities of current professional practice and new technology in engineering and related disciplines. It also clarifies the intent of Congress with regard to those relevant GAO decisions … It is the intent of the new definition and an identical provision in the House-passed OFPP Act … to clarify and make permanent the application of the Brooks A/E Act to the services of surveying and mapping firms and other appropriate services for all Federal agencies.

SEE: Congressional Record, Daily Edition, October 12, 1988, p. H10058-9.

Also in the House, Rep. Livingston commented:

The provision in title VII will clarify and make permanent the application of the Brooks A/E law to services of surveying and mapping firms and other appropriate services to all Federal agencies …

SEE: Congressional Record, Daily Edition, October 12, 1988, p. H10056.

When the House gave final approval to on e the bills amending the Brooks Act, Rep. Mavroules raised questions concerning the new definition’s applicability to the Defense Mapping Agency (later named the National Imagery and Mapping Agency and then the National Geospatial-Intelligence Agency). As a result of that colloquy (SEE: Congressional Record, Daily Edition, October 12, 1988, p. H10613), DMA viewed certain of its contracts for services as exempt.

That single-agency exemption was later reflected in the FAR in 36.60-1. It read:

“However, mapping services such as those performed by the Defense Mapping Agency that are not connected to traditionally understood or accepted architectural and engineering activities or have not themselves traditionally been considered architectural and engineering services shall be procured pursuant to provisions in parts 13, 14 and 15.” SEE FAR 36.601-4(a)(4), Federal Register, Daily Edition, June 25, 1991, p. 29129.

Since the time that FAR provision was promulgated, Congress again repeatedly sought to change the provision and obviate the Marvoules colloquy.

Congress clarified the aforementioned FAR provision when it enacted section 403 of Public Law 101-574. It provided:

“Pursuant to section 742 of Public Law 100-656, modifications to Part 36 of the Federal Acquisition Regulation (48 CFR Part 36) shall specify that the definition of architectural and engineering services includes surveying and mapping services to which the section procedures of Subpart 36.6 of the Federal Acquisition Regulations apply.”

Again, Congress did not exempt any agency, did not limit this provision to certain agencies and did not limit it to certain types of mapping services. This call for a revision to the FAR is what has finally been published in the instant matter.

The application of the Brooks Act qualification based selection (QBS) process to DMA, and other agencies, was again reinforced by Congress in 1992: “Solicitations for the award of contracts for architectural and engineering services issued by a Military Department or a Defense agency shall comply with the requirements of subsections (a) and (b) of section 2855 of title 10, United States Code.” SEE Section 202(d) of Public Law 102-366. Congress again addressed the single agency exempted (Defense Mapping Agency) in FAR 36.601-4(a)(4), when it included language in the appropriations for that agency. SEE H. Rept. 104-617, to accompany H.R. 3610, 104th Congress, the fiscal year 1997 Defense Appropriations bill and H. Rept. 104-863, to accompany H.R. 3610, Public Law 104-208; and H. Rept. 105-265 (H.R. 2266, PL 105-56, 105th Congress, the fiscal year 1998 Defense Appropriations bill. Moreover, the 1999 Defense Appropriations bill clearly and unambiguously settled the matter. It provided: “None of the fund in this Act may be used by the National Imagery and Mapping Agency for mapping, charting and geodesy activities unless contracts for such services are awarded in accordance with the qualifications based selection process in 40 U.S.C. 541 et. seq. and 10 U.S.C. 2855: Provided, that such agency may continue to fund existing contracts for such services for not more than 180 days from the date of enactment of this Act; Provided further, that an exception shall be provided for such services that are critical to national security after a written notification has been submitted by the Deputy Secretary of Defense to the Committee on Appropriations of the House of Representatives and the Senate.” SEE section 8101, Public Law 105-262 Finally, in House Report 105-746, to accompany this language the Appropriations Conferees said: “The conferees included a general provision (Section 8101) to provide permanent clarification of the application of the "Brooks Act" qualifications based selection (QBS) process to surveying, mapping, charting and geodesy contracts of the National Imagery and Mapping Agency (NIMA). The conferees expect the officials responsible for the Federal Acquisition Regulations (FAR) to strike and revise the last sentence of section 36.601-4(a)(4) of the FAR (48CFR 36.601-4(a)(4)) to define "Surveying and mapping" in such a manner 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.” It should be noted that DMA/NIMA/NGA now uses the FAR part 36 process for its contracting for these services. It is also noted that the matter of application of this provision of law and regulation to surveying and mapping services has also been consistently upheld by the Comptroller General (SEE Forest Service, Department of Agriculture, Request for Advance Decision, B-233987, July 14, 1989; White Shield, Inc., B-235522, September 21, 1989; and White Shield, Inc., B-235967, October 30, 1989). Therefore, MAPPS believes OFPP and the FAR Council is not only authorized and justified, but indeed is required by law to revised the FAR in 36.601-4(a)(4) to read 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 36.601 from registered surveyors or architects or engineers. Mapping associated with the research, planning, development, design, construction or alteration of real property is considered to be an architectural or engineering service and is to be procured pursuant to 36.601. However, mapping services such as those performed by the Defense Mapping Agency 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. Contracts and subcontracts for surveying and mapping including 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, shall be awarded pursuant to 36.601.” John M. Palatiello MAPPS Executive Director 1760 Reston Parkway, Suite 515 Reston, VA 20190 p-(703) 787-6996 f-(703) 787-7550 e-john@mapps.org w-www.mapps.org