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The Brooks Act at 40: A Law that Works

Posted By John Palatiello, Saturday, October 27, 2012
Updated: Friday, October 26, 2012

Today marks the 40th anniversary of the enactment of the Brooks Act. On October 27, 1972, President Nixon signed into law the legislation providing for qualifications based selection (QBS) of architecture, engineering and related services, including surveying and mapping, or what we now call "geospatial” services.

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 surveying and 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 now include mapping, photogrammetry and GIS activities in such licensing laws. The high standards established by organizations like MAPPS 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 E-911 system an ambulance uses to get to your house is not related to architecture, engineering or construction, yet an accurate map can mean the difference between life and death.

The government should negotiate contracts for these services independent of other professional design, construction or information technology 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.

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.

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.

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. 

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. 

The government benefits from the mapping professional’s fiduciary obligation to their client. Emphasis on the quality of the work establishes a relationship of cooperation and trust, whereas price competition pits honest professionals against competitors who are willing to cut corners or deliver substandard services to bid low. When the low bid is the primary selection criterion, the interests of unscrupulous or inexperienced contractors are advanced over the interests of the public. The low bid map often is inaccurate or incomplete because the government will pay far more, or contract with another to complete the project begun by the low bidder who went bankrupt trying to meet an unreasonably low contract price. Rather than an adversary relationship, which is promoted in competitive bidding procedures, the mapping professional should negotiate their work, and work as a team.

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 than 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.

Then-Representative Jack Brooks (D-TX) had foresight and vision when he wrote the Brooks Act in 1972, decades before "best value” and "past performance” became part of the procurement lexicon. It is a law that works and one that should continue to promote professionalism, quality, excellence and value.


Tags:  AE  Brooks Act  Contracts  Procurement  QBS 

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