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QBS Litigation Update (last updated 6-15-07)
Judge's Decision
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 to bring the question of 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. 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.
However, 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. This is an important victory with regard to programs like the U.S. Department of Agriculture’s National Agriculture Imagery Program (NAIP). 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. Moreover, 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's contention that this was not an issue in the case.
The Court did not comment on the full legislative history, nor on the more than a dozen individual pieces of enacted legislation and Congressional legislative history in which Congress ordered QBS for mapping activities broadly defined, nor the various state law definitions of surveying that include mapping activities.
The game is not over. This action is tantamount to a balk being called in the top of the first inning. This is still a nine-inning game.
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. The MAPPS Board of Directors will continue to discuss this issue with the MAPPS membership, consult with legal counsel, deliberate with MAPPS partners in COFPAES, and consider the next course of action. The MAPPS Board is grateful for the support it has received from so many members, other associations, and stakeholders in the private sector and government, and looks forward to continuing to work with these parties on this important issue.
Background on the the Parties and Issue in the Lawsuit
MAPPS, has been joined by ASCE, NSPE and COFPAES in litigation against the Government of the United States to force the Federal Acquisition Regulation (FAR) Council to promulgate regulations that accurately and comprehensively provide for federal procurement of architectural and engineering services, including surveying and mapping, to follow the qualifications based selection (QBS) process in the Brooks Act (40 USC 1101 et. seq.) (see Amended Complaint) The lawsuit filed earlier this year by the professional organizations noted above in Federal District Court for the Eastern District of Virginia seeks to have the Brooks Act properly implemented in the FAR. The Management Association for Private Photogrammetric Surveyors (MAPPS), American Society of Civil Engineers (ASCE), National Society of Professional Engineers (NSPE) and Council on Federal Procurement of Architectural and Engineering Services (COFPAES) v. United States of America claims the officials responsible for writing the FAR have improperly thwarted the will of Congress, and state licensing law, by limiting the types of surveying and mapping contracts procured via the QBS by Federal agencies.
Background & Legislative History of QBS Law
When the Comptroller General of the United States (GAO) ruled in the late 1960’s that agencies lacked the statutory authority to award contracts based on factors other than price, Congress enacted the landmark Brooks Act, named for its author, then-Representative Jack Brooks (D-TX). The law, enacted as Public Law 92-582 and codified in 40 USC 1101 et. seq., provides for the selection of firms to perform architect, engineer, and related services “on the basis of demonstrated competence and qualification for the type of professional services required”. From its enactment in 1972 until two GAO protests (Ninneman Engineering – Reconsideration, B-184770, March 9, 1977 and U.S. Geological Survey, B-118678, May 6, 1977), Federal agencies used the QBS process for its surveying and mapping projects. Following those GAO decisions, the professional societies and trade associations lobbied Congress to clarify the Brooks Act’s application to surveying and mapping. More than a dozen different provisions of law clarifying QBS coverage of surveying and mapping have been enacted since Ninneman and USGS decisions, 1988 amendments authored by Jack Brooks himself specifically putting the words “surveying and mapping” in the Brooks Act’s definition of “architectural and engineering services”.
Since the Brooks Act was enacted in 1972, more than 35 states have enacted “mini-Brooks Acts” providing for QBS on state, and in some instances, local government contracts. The American Bar Association’s Model Procurement Code for State and Local Government, legislation drafted and recommended by the leading procurement lawyers in the nation, includes QBS for architecture and engineering, including surveying and mapping.
While Congress intended to broaden the application of QBS to mapping services, the regulation writers narrowed it. After several years of lobbying by MAPPS and COFPAES, a notice for public comment was finally published in 2004.
Concurrent with these actions, the National Council of Examiners for Engineers and Surveyors (NCEES) issued a new model law for surveying for consideration by the state legislatures. That model law includes photogrammetry and GIS within the definition of the practice of surveying, and MAPPS, working with an inter-society committee, has been able to get a “grandfather” provision added to the model law to permit qualified photogrammetrists and other geographic information professionals to be licensed without examination or additional education or experience.
On April 19, 2005, the Federal government’s Federal Acquisition Regulation Council, (FAR Council) issued its final determination on the public comments published in 2004. (link needed)
MAPPS and COFPAES, which has been working on this issue throughout this period, was deeply concerned about the conclusion of the FAR Council. The April 19, 2005 notice is replete with errors, misstatements of fact and inaccurate data. It misstated the legislative history of mapping in the Brooks Act, omitted major legislation that Congress enacted to broaden the application of QBS to mapping, erroneously characterized the NCEES model law, was factually incorrect about the status of state law and regulation affecting architects, engineers, surveyors and mapping professionals. This notice could have catastrophic affects on Federal agencies and the private A/E and geospatial community. Inappropriate interpretation and implementation of the FAR Council’s findings and commentary could result in recalcitrance across the Federal government with regard to Brooks Act application.
Resolution Plan Prior to Lawsuit
To respond to these events, the MAPPS Board implemented a strategy for resolution. The actions undertaken by MAPPS were as follows:
1. Legislation. MAPPS has continued to pursue legislation to provide a new, unambiguous statutory definition of surveying and mapping services subject to the Brooks Act. Such legislation, the Services Acquisition Reform Act, won House committee approval in the last (108th) Congress in H.R. 1837. However, more than 12 provisions of law have been enacted over several years to instruct agencies, and the FAR Council, to apply QBS to mapping services generally in all agencies, but these provisions have not resulted in proper implementation in the FAR.
2. FAR Appeal. MAPPS and COFPAES filed an appeal of the FAR Council ruling. This appeal outlined where the April 19, 2005 FAR notice was factually incorrect. The FAR Council rejected the appeal, and failed to address the Federal and state laws cited by MAPPS and COFPAES.
3. Education and Public Relations. MAPPS continues to educate key public officials about the benefits of QBS. MAPPS has also published articles in trade publications to espouse the virtues of QBS, including events and articles on the 30th anniversary of the enactment of the Brooks Act in 2003. MAPPS has also partnered with the U.S. Army Corps of Engineers on their education programs. The Corps has a 5-day A/E contracting course that it presents primarily to its own employees. On a space available basis, the Corps makes seats in the course available to personnel from other Federal agencies, state and local government and the private sector. MAPPS is one of a small handful of associations whom the Corps provides advance notice of its class offerings for the coming fiscal year and MAPPS then provides an invitation to its members, and the Federal, state and local government personnel with whom we interact. MAPPS, through COFPAES, is working on legislation to enhance the ability of the Corps to financially be able to present this course, particularly to private practitioners and government personnel outside the Corps.
4. Protest Support. The MAPPS staff assists members with technical assistance on GAO bid protests against agency contracts which fail to use QBS, and to remedy individual contracts that fail to properly utilize QBS.
5. Litigation. MAPPS and COFPAES consulted with a law firm about the feasibility and practicality of suing the Federal government over this matter.
Having exhausted remedies 1-4 above, the Complaint was filed in U.S. District Court in Alexandria, VA earlier this year. It alleges the U.S. Government has promulgated provisions in the Federal Acquisition Regulation (FAR) (48 CFR 36.6) that are in conflict with the Brooks Act (40 USC 1101) and seeks injunctive relief by directing the government to revise the FAR consistent with the Brooks Act as directed by Congress on numerous occasions and in several enacted provisions of enacted legislation.
The Crux of the Litigation
The FAR currently provides that the Brooks applies to surveying, and to those mapping contracts “associated with the research, planning, development, design, construction, or alteration of real property” is considered to be an architectural and engineering services and subject to the Brooks Act. However the FAR goes on to say “mapping 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” are to be procured pursuant to price competition provisions of the FAR.
That last sentence is the subject of the legal action. 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.
In a July 18 reply to the complaint, the Government stated, “... federal contracting officials must use QBS when procuring mapping services in states that define engineering or surveying to include mapping." Attorneys representing the profession have pointed out that while that is absolutely true, it is NOT practiced by the Government, and it is NOT reflected in the FAR.
The failure of the Government to follow that point of law is the crux of the litigation.
In many state licensing laws, surveying and mapping are indistinguishable. A wide variety of mapping services are part of the state licensing law definition of surveying, and require performance by a surveyor, or in some states, a surveyor or engineer. State Licensing Law Mapping Definitions This fact is not being recognized in the FAR. Moreover, more than a dozen state licensing board have ethics rules that prohibit licensed practitioners from securing work by competitive bidding. In Texas, for example, this ban even applies to private engineers who are seeking surveying services from a subcontractor. (See: http://www.txls.state.tx.us/sect01/news/ag_jc0374.html)
When the FAR Council issued its ruling that it would administratively not revise its regulations, it administratively established a new standard for determining Brooks Act application to a particular contract. It said it interprets the law to “leave to the contracting officer’s discretion the decision whether a specific procurement falls within the Brooks Act, considering whether the services, ‘independent of any project, or of an A-E nature which should logically or justifiably be performed by A-E professionals’”. What this passage fails to recognize is the fact that under the Brooks Act, a contracting officer is required to apply the QBS law to a project in which the services are “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”, including surveying and mapping.
By eliminating from the April 19 ruling in the Federal Register the requirement for adherence with state licensing law, the FAR Council has established a new and dangerous loophole in the Brooks Act. It has given contracting officers carte blanche authority to make Brooks Act application decisions.
Legal Actions & Schedule
The Government filed a motion to dismiss the complaint on the basis of the associations' lack of standing, an action our attorneys expected. Motion to Dismiss A hearing on the Government’s motion was held on July 20. A response by the Plaintiff's to the Government’s motion was filed prior to that hearing as was the Government’s reply. Plaintiff's Response to Motion to Dismiss Government's Response. The professional organizations have been victorious in the first round of its litigation with the U.S. Government regarding the Brooks Act process. The group of professional societies and trade associations won the first round in its law suit 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 on November 14.
In response to the professional organizations’ petition, the government had 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 November 14, 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 February 2, 2007, at 2:00 PM in Alexandria, Virginia.
It is interesting to note that in its July 18 reply, on page 3, the Government states, “... federal contracting officials must use QBS when procuring mapping services in states that define engineering or surveying to include mapping." Our attorneys have pointed out that while the above statement is absolutely true, it is NOT practiced by the Government, and it is NOT reflected in the FAR. This is the whole point of the litigation. Our attorneys are discussing this point with the U.S. Attorney representing the Government and offering a settlement conference. If the Government would agree to comply with the above statement, and put a provision in the FAR requiring the above statement as practice in Federal procurement, the case could be settled and the complaint withdrawn. The Government has indicated an interest in such a conference, and it is currently being negotiated.
Current Perspectives
We are delighted the court has ruled in our favor. We 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 and requires contracting officers to be guided by state licensing law, it will rule in our favor.
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LEGAL ACTIONS
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