July 10, 2004
Dear MAPPS Member Firm Principal:
To keep the membership fully informed about the status of the National Agriculture Imagery Program (NAIP) contracts, we are writing this letter to update you on recent events.
On May 12, an email letter was sent to the membership by our Executive Director, John Palatiello, providing the status of this matter and explaining the Board of Directors’ actions with regard to the protest filed by MAPPS. This letter was reviewed and approved by the MAPPS Board prior to being sent to the membership. In addition, it was clearly not our intent to point a finger or blame to any individual government employee and if that was taken in such a way, the MAPPS Board apologizes.
The protest filed by MAPPS was discussed by the Board at great length via many emails, and several Board conference calls, and in addition, by a number of MAPPS members. We were aware that many members strongly supported the protest, while others did not. The Board acted -- unanimously -- in a manner that we felt was in the profession’s best interest.
The Board was well aware of two factors that aided our decision. First, we carefully studied the law governing GAO bid protests and knew that the law does NOT provide for an automatic or mandatory suspension or cancellation of a contract that is under protest. If an agency makes a finding and determination that there is a compelling governmental interest to be served by moving ahead with the contract(s), the contract(s) can be awarded and work can proceed. That is what USDA did. It is what we expected. If the MAPPS Board believed that a protest would have jeopardized some $17 million in contracts, many of which would likely go to MAPPS member firms, our actions might have been quite different. The MAPPS Board was not immune to this as several Board members businesses would have been negatively affected. Second, the Board was aware that GAO might not accept a MAPPS protest. There is precedent for GAO not granting “standing” to a trade association. It had been GAO’s position in the past that protests could only be filed by interested parties, such as prospective offerors, whose direct economic interests would be affected by a contract action. Nevertheless, the MAPPS Board believed that due to the position that USDA took, it was imperative that MAPPS take such a strong stand. In fact, when MAPPS faced the same issue with NIMA, USGS, the Corps, Census, FEMA and many other agencies in the past, we were able to work it out with these agencies without filing a GAO protest.
In fact, we have been notified by GAO that MAPPS does NOT have standing, and our protest has been dismissed.
As you may know, QBS was one of the founding principles of MAPPS. Our association has been a leader on this issue. We can tell you from personal experience we are recognized as such in the White House, at OMB, in the agencies and in Congress.
QBS is not just a business issue. It is a professional and ethical issue. Long before “best value” “past performance” and other non-price factors became popular in government procurement, MAPPS was an advocate for QBS. The founding members of MAPPS, and every Board of Directors since, has believed QBS is the best way for taxpayer dollars to be expended for our services. While “best value” and “past performance” are now part of Federal procurement, they are not QBS. They apply to other, non-professional, services.
For many years, when MAPPS was fighting to get mapping and related services contracted out to the private sector, the leadership of MAPPS heard a familiar refrain from the bureaucrats – “oh, we tried to contract out, but the private sector couldn’t do the work”. When we asked how the agency contracted out, the answer was always that they used price competition.
QBS goes hand-in-hand with our efforts to create more Federal contracting opportunities for all our members – so the American taxpayer gets the best return on each dollar invested in our services.
As your representatives on matters affecting our membership, our responsibility is to look out for the long term interests of the profession. We have had QBS challenges in the past, with agencies such as the Corps of Engineers, USGS and NIMA, that were hotly contested. All these agencies now use QBS, support QBS, and have strong working relationships with MAPPS. Like the current situation, we have had members who did not want MAPPS to confront some of these Federal agencies. In each instance, the MAPPS Board has closely listened to these members’ viewpoints, and ultimately made decisions based on what was in the best long term interests of the profession.
MAPPS has always been at the intersection of profit and professionalism. Whether the issue has been QBS, contracting out, offshoring, licensing or many others, we have had some members who did not agree with the position or actions taken by the Board. The Board has always had to weigh the profit interests of individual member firms with the professional interests of our entire community. That is what MAPPS has done in the past, and that is what was done in the matter of the NAIP contracts.
The MAPPS Board once again offers to meet with, discuss and engage in a dialogue with USDA officials on the matter of QBS for the NAIP program. When we have had difficult issues with Federal agencies in the past, we have always kept the dialogue and lines of communication open. We desire to do so with USDA.
We do not take our responsibility and service lightly. Over the past year, we have strived to be, and will continue to be, more transparent by communicating with you and making this association membership driven. There are occasions when the Board must act quickly and effectively to stand up for our association’s beliefs and profession. Each Board member serves you without compensation or reimbursement. We feel it is our duty to give back to the association for what it has given us. We feel it is our responsibility as professionals to contribute to a healthy, vital and ethical geospatial community for today and in the future. It is with that goal in mind that we made decisions on the NAIP matter and others.
Respectfully,
The MAPPS Board of Directors
Ken Fleming, President
Kurt Allen, President-Elect
Marvin Miller, Scretary
Michael Bullock, Treasurer
Tim Lowe, Director
Roger Crystal, Director
Mary Potter, Director
cc: Geoffrey Gabbott, USDA
Glenn Bethel, USDA
PREVIOUS Member Correspondence:
May 12, 2004
Dear MAPPS Member:
As many members know, there are some serious issues related to the contracts in the National Agriculture Imagery Program (NAIP) of the U.S. Department of Agriculture (USDA). I wanted to take this time to update the membership on this matter.
Dating back to Kass Green’s tenure as MAPPS President (1999-2001), MAPPS has been engaged in discussions with employees of the USDA about their contracting practices. Certain programs in USDA were inconsistent with MAPPS’ goals, and more importantly, did not fully comply with Federal law, regulations and policy.
A few years ago, MAPPS helped secure several million dollars in funding for the USDA’s common land unit (CLU) program, only to find that USDA used that money to set up more than 20 cartographic centers in several states to do this work in-house rather than by contract with the private sector. USDA exploited a loophole they created in implementation of the FAIR Act by transferring the funds for these centers and employees to states, thus by-passing both the FAIR Act, OMB Circular A-76, and the Federal policy on reliance on the private sector.
USDA has acquired aerial photography of farm production areas for many years. As technology and USDA’s requirement changed, so did the services being contracted. USDA no longer contracts for services that are limited to acquisition of aerial photography. The newer USDA requirement is for a rectified digital orthophoto.
For more than 20 years, agencies such as the U.S. Army Corps of Engineers held the position, codified in Federal regulations, that once a professional value-added service was rendered to an aerial image, such services were covered under the qualifications based selection (QBS) process found in the Brooks Act and part 36 of the Federal Acquisition Regulations (FAR). This policy has been confirmed by virtually every other Federal agency. You may recall that the USGS began using QBS in the mid-1990s, for its digital orthophoto contracts, which pre-dated the current Cartographic Services Contracts (CSC).
You may also be aware that in recent years, questions about the application of the QBS law and regulations to certain types of services and contracts have arisen with other agencies, such as NIMA, Census and FEMA. In each of those instances, MAPPS worked constructively and cooperatively with the agencies to clarify the issues, resolved them, and assured proper compliance with the law and regulations.
As I indicated earlier, the leadership of MAPPS brought this matter to the attention of USDA employees more than five years ago. There has, unfortunately, been steady intransigence on the part of the agency. In August of 2002, I spent an entire morning with a USDA attorney, providing a presentation on the Federal law, regulations, GAO protest decisions, legislative history in Congress, court decisions, other agency precedents, and state licensing laws. We provided a full and comprehensive case for the application of the QBS law to USDA’s NAIP contracts.
That attorney never extended MAPPS the courtesy of a response, and stopped returning phone calls and emails.
Not only was USDA determined not to comply with the QBS law, it began a campaign to discredit the members of MAPPS and the Federal agencies that use QBS. If you were at the MAPPS Summer Meeting in Bermuda last year, you saw a presentation by Dick Kleckner of USGS in which he shared data from USDA in which USDA claimed to get lower prices through competitive bidding than USGS was getting under QBS. The MAPPS members present at that session were very upset at what USDA was saying and doing and urged action by the MAPPS Board. This USDA claim has been made at several other conferences of Federal employees, state agencies and others. USDA has been actively lobbying other agencies’ to abandon QBS.
At the MAPPS Winter Meeting in Phoenix this past January, Geoff Gabbott of USDA made a similar claim. In the spirit of cooperation and hospitality, the MAPPS leadership had agreed in advance that it would listen to Mr. Gabbott’s presentation and not challenge him at that forum and venue. Again, many of the MAPPS members present at that session were very upset at what USDA was saying and doing and urged action by the MAPPS Board.
In March, a notice, which MAPPS had been requesting for several years, was published in the Federal Register, seeking comments on a revision to the Federal Acquisition Regulations to strengthen the application of QBS to mapping. At a USDA conference on GIS, USDA employees were again lobbying the audience to oppose that rule.
For the past three years, MAPPS has engaged in Federal Agency Liaison Committees, including one with USDA. The contracting procedures issue has been on the agenda for those meetings.
At the request of the Board and the MAPPS membership, I have given numerous presentations at MAPPS meetings on QBS, to keep our members informed of issues and developments.
Prior to the current NAIP contract solicitations being released, the MAPPS Board discussed with USDA its belief that a member firm might file a protest if the contract solicitations were not complaint with the QBS law and regulations.
It was only after these exhaustive efforts on MAPPS part that a protest was filed. This has been discussed by the MAPPS Board on many occasions.
More than one protest on the NAIP solicitation was filed with the General Accounting Office (GAO). One in particular was filed by a MAPPS member firm. At the direction of the MAPPS Board, again, after discussion on several occasions over many months, I provided background and support to that member firm. After filing that protest, the firm decided to withdraw the protest, based on what we have learned was inaccurate information and advice.
At that point, the MAPPS Board considered the situation and its options, and voted unanimously to request that GAO keep that original protest alive, and to consider MAPPS the protesting entity. As of the present time, the MAPPS protest has been accepted by GAO.
There is nothing in the GAO protest process that mandates that an agency’s contracting actions be terminated due to a protest. USDA has the ability to move ahead with the NAIP contracts based on the solicitation it issued and the responses it received. USDA also has the ability to utilize existing QBS contracts of other Federal agencies – such as NGA, USACE, and USGS, for which NAIP is within the scope of those contracts. It is important to note than more than 85% of the member firms of MAPPS are prime or subcontractors on those agencies’ contract vehicles, and virtually every firm that has been competing for NAIP is available to USDA, in compliance with the QBS law, from those contract vehicles.
I have confirmed with those agencies their ability to serve USDA. In fact, some have standing agreements with USDA that would permit an efficient and timely completion of the NAIP work in full compliance with the law. USDA indeed has used these agencies’ QBS contract vehicles on previous occasions. The Aerial Photography Field Office (APFO) of USDA, the very entity which issued the NAIP solicitation, has used these other agencies’ QBS contract vehicles.
Today, I was scheduled to engage in a conference call with USDA officials to discuss win-win solutions to this matter. When the time for the conference call arrived, I was notified that USDA’s attorneys advised the USDA officials not to participate in the call.
MAPPS was founded more than 20 years ago with QBS as one of its founding principles. The association has fought long and hard for professionalism in contracting for our members’ services. We have had some contentious differences with some agencies. But we have always been able to resolve those issues. In some cases we needed legislation passed by Congress, but even in those instances, there was a mutual effort between MAPPS and an agency, and a desire to find a resolution.
Unfortunately, that has not been the case with USDA. We regret this situation has come to this. However, MAPPS strongly believes it must stand up for its members, and for the principles upon which the association was built. The fact that USDA has refused to work with MAPPS, and is “poisoning the well” by lobbying other agencies in opposition to QBS has resulted in the present situation.
To any MAPPS member who is in contact with USDA, please convey our desire to find a win-win solution to this matter. There are ways to uphold the law and make sure the NAIP work gets accomplished on time. However, USDA must join us at the table if we are to implement such a solution. The ball is clearly in USDA's court, and MAPPS is willing to participate.
We in the private sector do not have the option of ignoring the law. We cannot say, “We’ll comply next year”. USDA seems to believe it is above the law. MAPPS cannot allow a government agency to do that to our members.
Sincerely,
John M. Palatiello
MAPPS Executive Director
cc:
Geoffrey Gabbott, USDA
Glenn Bethel, USDA
