70 FR 74 pgs. 20329-20333 - Federal Acquisition Regulation; Application of the Brooks Act to Mapping Services; Analysis of Comments
Type: PRORULEVolume: 70Number: 74Pages: 20329 - 20333
Docket number: [FAR Case 2004-023]
FR document: [FR Doc. 05-7734 Filed 4-18-05; 8:45 am]
Agency: National Aeronautics and Space Administration
Official PDF Version: PDF Version
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 36
[FAR Case 2004-023]
Federal Acquisition Regulation; Application of the Brooks Act to Mapping Services; Analysis of Comments
AGENCIES:
Department of Defense (DoD), General ServicesAdministration (GSA), and National Aeronautics and SpaceAdministration (NASA).
ACTION:
Notice; Analysis of Comments.
SUMMARY:
The Defense Acquisition Regulations Council and theCivilian Agency Acquisition Council (the Councils) havereviewed the public comments received in response to therequest for comments on the application of the BrooksArchitect-Engineers Act to mapping services. The Councils havedetermined that no change to the FAR is necessary. In theinterest of transparency, this notice sets forth the rationalesupporting this determination.
FOR FURTHER INFORMATION CONTACT:
Ms. Cecelia Davis, at (202) 219-0202. Please cite FAR case 2004-023.
SUPPLEMENTARY INFORMATION:
I. Background
On October 27, 1972, the Brooks Architect-Engineers Act(Pub. L. 92-582) (40 U.S.C. 541 et seq. , recodified now at 40 U.S.C. 1101 et seq. ) required that all requirements for Architect-Engineers (A-E) services be publicly announced, andbe negotiated on the basis of demonstrated competence andqualifications for the type of professional services required,at fair and reasonable prices. The Act established a specificqualification based procurement process to be used inprocurements for architect-engineer services, which the Actdefined as "those professional services of an architectural orengineering nature as well as incidental services that membersof these professions and those in their employ may logically orjustifiably perform."
Since enactment, Congress has expanded the definition ofA-E services (Pub. L. 100-656, Pub. L. 100-679, Pub. L. 101-574). Of specific note here, Section 403 of Pub. L. 101-574(SBA Reauthorization and Amendments Act of 1990) required that,pursuant to Section 742 of Public Law 100-656, modifications toFAR Part 36 shall specify that "the definition of architecturaland engineering services includes surveying and mappingservices to which the selection procedures of Subpart FAR 36.6of the Federal Acquisition Regulation apply." Some interpretthis to mean that all mapping services are subject to FARSubpart 36.6. Others interpret the phrase "to which theselection procedures of Subpart 36.6 of the Federal AcquisitionRegulation apply" as a limitation modifying "mapping services." On October 10, 1991, then OFFP Administrator issued a letter to the FAR Committee stating that "the determining factor in deciding whether mapping services should be procured throughthe A-E process or through normal competitive procedures iswhether mapping services are associated with 'traditionally understood or accepted architectural or engineering activities.'"
The FAR states concerning professional surveying andmapping services of an architectural or engineering nature:
Surveying is considered to be an architectural andengineering service and shall be procured pursuant to section36.601 from registered surveyors or architects and engineers.Mapping associated with the research, planning, development,design, construction, or alteration of real property isconsidered to be an architectural and engineering service andis to be procured pursuant to section 36.601. However, mappingservices that are not connected to traditionally understood oraccepted architectural and engineering activities, are notincidental to such architectural and engineering activities orhave not in themselves traditionally been consideredarchitectural and engineering services shall be procuredpursuant to provisions in Parts 13, 14, and 15. FAR36.601(a)(4).
During the years since enactment of the Brooks Act in1972, the mapping services industry has evolved extensively tobecome a producer of commercial data (digital) products withbroad applications-quite distinct from the practice ofarchitecture or engineering.
This case was initiated after review of comments receivedin response to FAR Case 98-023, Application of the Brooks Act.FAR case 98-023 was undertaken in response to enactment ofSection 8101 of the National Defense Appropriations Act (Pub.L. 105-262), which required the National Imagery and MappingAgency (NIMA) to procure mapping and charting services usingFiscal Year 1999 monies in accordance with the Brooks Act.Prior to enactment of Section 8101, FAR at 36.601-4(a)prescribing the use of the Brooks Act qualification-basedprocess listed NIMA mapping services as an example of servicesthat were not subject to the qualification-based process. Afterenactment of Section 8101, the listing of NIMA at FAR 36.601-4(a) was no longer appropriate. As a result, FAR case 98-023deleted the NIMA example.
That case was published as a final rule as part of FAC 97-12, at 64 FR 32740, June 17, 1999. Although there was someobjection to publication as a final rule without request forcomment, the FAR Council found that removal of an example couldnot alter the fundamental meaning of the surroundingstatements. Removal of an example did not change the FARpolicies relating to application of the Brooks Act to mappingservices.
However, at the request of the FAR Council, DoD, GSA, andNASA published a notice in the Federal Register at 69 FR 13494, March 23, 2004, requesting comments on the application of theBrooks Act to mapping services. Public comments were due May24, 2004.
II. Analysis of Comments
Fifty-two respondents submitted comments, of which morethan half were government employees.
Some of the respondents think that the Brooks Act shouldapply to all acquisition of mapping services.
More respondents agree that the Brooks Act applies only tosome mapping services. A few of the respondents in this latercategory want to clarify the FAR so that the Brooks Act is lessapplicable to the acquisition of mapping services. Most do notrecommend any change to the FAR.
1. Comments that the Brooks Act applies to the acquisitionof all mapping services.
Some respondents recommend that we amend the FAR toclearly require Brooks Act procedures for all acquisition ofmapping services. These respondents maintain that contractingofficers have no discretion to decide whether mapping servicesor surveying work requires Brooks Act procedures. Theserespondents support their position by assertions that-
a. Credentialing requirements for mapping servicesidentify these services as subject to the Brooks Actprocedures;
b. Qualification based procedures are necessary to avoid abroad range of public safety calamities;
c. Prohibitions exist at the state-level on A-Ecompetitive bidding in securing work; and
d. Legislative history clearly supports these views.
Response: The Councils believe that the Brooks A-E Act, state law, GAO cases, and accepted formal guidelines controlling the professions of architecture, engineering andsurveying do not support the views of these respondents. Thepertinent foundational guidelines authored by The NationalCouncil of Examiners for Engineering and Surveying (NCEES)explicitly exclude mapping services from the professions ofengineering and surveying.
Assertion 1. Credentialing requirements for mappingservices identify these services as subject to the Brooks Actprocedures.
To test this assertion, the Councils looked at the publicguidance authored by the professional councils that advisestates in governing the practice of architecture andengineering. These councils are National Council ofArchitectural Registration Boards (NCARB) and the NCEES. NCEESgoverns over Engineering (journeyman credential beingProfessional Engineer or PE) and Land Surveying (journeymancredential being Professional Land Surveying or PLS) as twodistinct professions. NCEES also advises in areas ofengineering not normally associated with development of realproperty ( e.g. , aerospace, automotive, industrial engineering). Moreover, NCEES and NCARB are charged with moderating the full range of professional practice rules and regulations to balanceprofessional interest with public interest. In coordinationwith industry, state regulators, and building officials, thesetwo organizations provide guidance over issues of credentialing(education, experience and exam requirements) and professionalboundaries. These councils render their opinions within thegeneral context of the law, profession and public interest.These opinions must survive public criticism from industry andnon-federal national, state and local officials charged withprotecting public interest including safety. As such, theCouncils view the guidance of these councils as decisive anddefinitive in matters relating to the practice of architectureand engineering, individually and respectively.
NCARB notes in their guidance to state governments: "Byfar the great majority of state legislatures have demonstratedtheir statutory intent to distinguish between the practice ofarchitecture and engineering." From NCEES's Model Law , (revised August 2004),( http://www.ncees.org/introduction/about_ncees/ncees_model_law.pdf ), the "practice of engineering" is defined as follows:
The term "Practice of Engineering," within theintent of this Act, shall mean any service orcreative work, the adequate performance of whichrequires engineering education, training, andexperience in the application of special knowledge ofthe mathematical, physical, and engineering sciencesto such services or creative work as consultation,investigation, expert technical testimony,evaluation, planning, design and design coordinationof engineering works and systems, planning the use ofland, air, and water, teaching of advancedengineering subjects, performing engineering surveysand studies, and the review and/or management ofconstruction for the purpose of monitoring and/orensuring compliance with drawings and specifications;any of which embraces such services or work, eitherpublic or private, in connection with any utilities,structures, buildings, machines, equipment,processes, work systems, projects, communicationsystems, transportation systems, and industrial orconsumer products, or equipment of a control systems,communications, mechanical, electrical, hydraulic,pneumatic, chemical, environmental, or thermalnature, insofar as they involve safeguarding life,health or property, and including such otherprofessional services as may be necessary to theplanning, progress, and completion of any engineeringservices. (Paragraph 110.20A.5. Definitions).
NCEES goes on to discern among the professionals involvedin the development of real property:
Design coordination includes the review andcoordination of those technical submissions preparedby others, including as appropriate and withoutlimitation, consulting engineers, architects,landscape architects, surveyors, and otherprofessionals working under the direction of theengineer. (Paragraph 110.20A.5. Definitions).
NCEES further clarifies the control hierarchy between engineersand surveyors:
Engineering surveys include all surveyactivities required to support the sound conception,planning, design, construction, maintenance, andoperation of engineered projects, but exclude thesurveying of real property for the establishment ofland boundaries, rights-of-way, easements, and thedependent or independent surveys or resurveys of thepublic land survey system. (Paragraph 110.20A.5.Definitions).
This sets context for NCEES to define the profession ofsurveying, apart from engineering. Distinct from Engineering,NCEES defines the practice of Land Surveying:
The term "Practice of Surveying," within theintent of this Act, shall mean providing, or offering to provide, professional services using such sciences as mathematics, geodesy, and photogrammetry, andinvolving both (1) the making of geometricmeasurements and gathering related informationpertaining to the physical or legal features of theearth, improvements on the earth, the space above,on, or below the earth and (2) providing, utilizing,or developing the same into survey products such asgraphics, data, maps, plans, reports, descriptions orprojects. Professional services include acts ofconsultation, investigation, testimony evaluation,expert technical testimony, planning, mapping,assembling, and interpreting gathered measurementsand information related to any one or more of thefollowing:
a. Determining by measurement the configurationor contour of the earth's surface or position offixed objects thereon.
b. Determining by performing geodetic surveysthe size and shape of the earth or the position ofany point of earth.
c. Locating, relocating, establishing,reestablishing, or retracing property lines orboundaries of any tract of land, road, right of way,or easement.
d. Making any survey for the division,subdivision, or consolidation of any tract(s) ofland.
e. Locating or laying out alignments, positions,or elevations for the construction of fixed works.
f. Determining, by the use of principles ofsurveying, the position for any survey monument(boundary or non-boundary) or reference point;establishing or replacing any such monument orreference point.
g. Creating, preparing, or modifying electronicor computerized or other data, relative to theperformance of the activities in the above describeditems a. through f.
Any person shall be construed to practice oroffer to practice surveying, within the meaning andintent of this Act, who engages in surveying or whoby verbal claim, sign, advertisement, letterhead,card, or any other way represents themselves to be aprofessional surveyor, through the use of some othertitle implies that they are able to perform, or whodoes perform any surveying service or work or anyother service designated by the practitioner which isrecognized as surveying. (Paragraph 110.20B.4.Definitions).
Despite the broadly encompassing verbiage of the NCEESdefinitions of engineering and surveying practice, NCEES makesno mention of general mapping services as produced or procuredonly by the Federal Government. NCEES provides a detailed listof "Inclusions and Exclusions of Surveying Practice." In fact, NCEES explicitly excludes any such academic, defense andpolitical administration mapping efforts. The essence of thebreakdown is that professional "surveying work" is tied to real property (boundaries, location of fixed, manmade works, andtopography). Excluded items line up consistently with the Part12 items mentioned. The Councils, therefore, note that NCEESholds surveying work to be distinct from engineering andmapping services.
NCARB defines the Practice of Architecture in its Legislative Guidelines and Model Law, Model Regulations 2004-2005 , (revised August 2004)( http://www.ncarb.org/Forms/legisgl.PDF ) as follows:
* * * consisting of providing or offering toprovide certain services, hereafter described, inconnection with the design and construction,enlargement or alteration of a building or group ofbuildings and the space within and the sitesurrounding such buildings, which have as theirprincipal purpose human occupancy or habitation. Theservices referred to include pre-design; programming;planning; providing designs, drawings, specificationsand other technical submissions; the administrationof construction contracts; and the coordination ofany elements of technical submissions prepared byothers including, as appropriate and withoutlimitation, consulting engineers and landscapearchitects. The practice of architecture shall notinclude the practice of engineering, but an architectmay perform such engineering work as is incidental tothe practice of architecture. (Legislative GuidelinesParagraph I.A.)
The NCARB control hierarchy recognizes that an architectmay do engineering, including surveying work, related andincidental to the creation of real property under their charge.Likewise, NCEES recognizes that an engineer may do surveyingwork related and incidental to the creation of real propertyunder their charge. A surveyor, however, may never practicearchitecture or engineering in any capacity.
Since professional credentialing has been used to identifyBrooks Act application, the Councils broadly consideredcredentialing of commercial activity. The Councils note thatcredentialing occurs at both the state and local levels and isestablished for reasons outside of public safety. The broadestcredentialing of individuals takes place in the broad realm ofconsumer protection. This ranges from credentialing tradesman,contractors, architects and engineers directly involved in themaking of buildings; to surveyors, certified interior designersand landscape architects indirectly involved; to medicaldoctors, boxing and wrestling promoters, hair stylists, funeraldirectors or waste-water plant operators which have no directconnection to public safety relative to real property.
Cadastral surveying work (land boundary surveying) islicensed distinct from the building design professions ofarchitecture and engineering. Whereas architecture andengineering carry degree and examination requirements relatingto theory and practical application of theory taught in anacademic setting, cadastral surveying credentialing springsfrom hands-on training in the field working for a licensedsurveyor.
Construction itself is professionally credentialed bynumerous states, yet procured under openly competitive means.When the Federal Government procures wastewater operations ormedical related services that, for example, are licensed underdire public safety concerns, it does so under Part 15 not Part36.
The Councils conclude that state credentialing, even forpublic safety reasons, is not sufficient to distinguish a taskas falling under Brooks Act procedures. The Councils alsoconclude that the credentialing that is pertinent to Brooks Actrelates to the credentialing well established outside of thenon-federal setting for the protection of public safety in thedevelopment of real property as discussed above.
In summary, the Councils find that credentialing does notclarify distinctions with regards to surveying and mappingservices. Credentialing provides meaningful distinctions onlyto the extent that the services are performed as part ofdesign, construction, alteration and repair of real property.
Assertion 2. Brooks Act qualification-based selectionprocedures are necessary to avoid a broad range of publicsafety calamities.
Numerous products and services for which safety and publicsafety are critical are not procured using Brooks Actprocedures. There is no question that the collective experiencein Federal procurement finds the government procuring some ofthe most critical systems, products and services outside Part36 selection procedures without public safety calamity orinconvenience. The Councils questioned the unstated premise ofBrooks Act-that safety concerns necessitate Part 36 selection procedures as the preferred method of selection. There arenumerous counter-examples to this presumption. Namely, complexlife saving and transportation systems (even extra-planetary),charting and disposal of unexploded ordnance, and medicalservices all are procured successfully without use of Part 36procedures.
The assertion appears to be based on the premise that"government procurement procedures properly emphasized awardingcontracts to the lowest bidder, or using price as a dominantfactor." This comment ignores a decade of procurement reform,and presents an argument that predated the Competition inContracting Act of 1984. It does not recognize currentcompetitive practices associated with negotiated procurementssuch as negotiated best value source selection procurement orstreamlined commercial items procedures.
How is public safety governed in non-federal Real Propertywork? Public safety in non-federal real property work ismaintained through layers of protection. Credentialing ofArchitects and Engineers by states is but one layer. This isaccomplished either by state-run examinations or standardizedexams provided nationally through not-for-profit organizations.Architects and engineers both have secondary school educationalrequirements and on-the-job professional experiencerequirements. National Architectural Accrediting Board (NAAB)and the Accrediting Board for Engineering and Technology (ABET)accredits degree programs for both architecture andengineering. Furthermore, NCEES and NCARB deliberations placethe architect in the lead role in the creation of habitablebuildings. Protection also derives from codified National andInternational standards of building. Zoning controls the safeand healthful disposition of structures and uses and otherplanning ordinances coordinated by architects. These codes areenforced by plan reviews (county or city building departments)and credentialing enforcement actions. At each step, the realproperty solution is checked against accepted standards. In thenon-federal setting, surveying and mapping services are notoverseen and controlled as part of the public safetyprotection, except where they involve real propertydevelopment.
In Federal procurement of A-E services, licensedprofessional civil servants perform analogous real propertypublic safety and health oversight as part of their qualityassurance functions in the acceptance of finished designsobtained under contract.
Assertion 3. Prohibitions exist at the state-level on A-Ecompetitive bidding in securing work.
The Councils note that NCARB provides the most detailedanalysis of trends and current accepted practice in area ofprofession rules of conduct. In general, NCARB guidance tostate boards notes a general professional shift towardsfavoring public interest (transparency and price competition)over rules that protect professional interests.
NCARB in its Rules of Conduct, 2004-2005 (revised August2004) ( http://www.ncarb.org/Forms/roconduct.pdf ) organizes rules of conduct into five subject areas: 1) Competence; 2)Conflict of Interest; 3) Full Disclosure; 4) Compliance withLaws; 5) Professional Conduct. NCARB states:
There are, however, various rules of conductfound in many existing state board rules which seemmore directed at protecting the profession thanadvancing the public interest. Such a rule is theprohibition against allowing one architect tosupplant another. . . . Similarly, prohibitionsagainst brokers selling architects' services, feecompetition, advertising, free sketches, and thelike, seem more appropriately included inprofessional ethical standards than in rules to beenforced by state agencies. (Rules of Conduct,Introduction.)
It appears that state restriction against A-Es competingfor work has faded as an issue for state regulation. If this istrue for states, this must influence the question whether Federal regulation should preserve non-competitive A-Eprocedures associated with real property work under the BrooksAct. The Councils could not find any guidance prohibitingEngineers and Surveyors from competing for projects. It seemslikely, therefore, that surveyors and engineers can and doroutinely compete for their non-federal assignments.
Assertion 4. Legislative history clearly supports theapplication of the Brooks Act to all mapping services.
GAO decisions do not support this assertion. For example,the GAO's leading case regarding mapping services is ForestService, Department of Agriculture-Request for AdvanceDecision , B-233987, 233987.2, July 14, 1989, 68 Comp. Gen. 555,89-2 CPD § 47, in which the GAO interpreted the 1988 Brooks Actrevision clarifying the definition of A-E services. Prior to1988, the Brooks Act defined architect and engineer serviceswere defined as "those professional services of anarchitectural or engineering nature as well as incidentalservices that members of these professions and those in theiremploy may logically or justifiably perform." 40 USC 541(3)(1982).
In 1988, the Brooks Act was amended to encompass "surveying and mapping." In Forest Service , the Comptroller General modified its previous two-part test for Brooks Act applicability and noted the legislative history to the BrooksAct amendment stated that "the amendment is intended to clarify the definition of A-E services in response to GeneralAccounting Office decisions issued since the enactment of theBrooks Act, 'which have had the effect of narrowing theapplication of the law, particularly in the field of surveyingand mapping.'"
The Forest Service case also established that the newstatutory definition clarified that "incidental services"refers to those services incidental to or part of A-E services,not, as previously held, incidental to an A-E project. As such,the Comptroller General restated its test for applicability ofthe Brooks Act as being a question of whether the service "isthe type which is incidental to professional services of anarchitectural or engineering nature, and if so, whether theservice is one which members of the architectural andengineering profession may logically or justifiably perform."GAO also stated that "The definition of A-E services includestraditional surveying and mapping services, whether or notincidental to an A-E project * * *"
The Comptroller General interpreted the FAR languageimplementing the amended statute to leave to the contractingofficer's discretion the decision whether a specificprocurement falls within the Brooks Act, considering whetherthe services, "independent of any project, are of an A-E naturewhich should logically or justifiably be performed by A-Eprofessionals." Because the applicability of Brooks Actprocedures should be determined on a case-by-case basis, theComptroller General chose not to establish a blanket rule inanticipation of future Forest Service procurements for road,trail and bridge construction, but concluded that it wouldreview any such protest under its abuse of discretion standard.
GAO reaffirmed its use of this standard in subsequentprotest decisions. See White Shield, Inc. , B-235522, Sept. 21, 1989, 68 Comp. Gen. 696, 89-2 CPD § 257 (sustaining a protestagainst use of non-Brooks Act procedures for cadastral mappingsurveying services because there was no indication that thesurveying and mapping services work involved was nottraditional A-E in nature; the CO improperly relied on outdatedcase law by using the test of whether the services wereincidental to an A-E project, instead of the test of whetherthe services were traditional A-E services) and Fodrea LandSurveys , B-236413, Oct. 19, 1989, 89-2 CPD § 364 (denying aprotest where agency planned to use Brooks Act procedures tosecure cadastral land surveying services because the record didnot indicate that the surveying and mapping services were nottraditional A-E services).
2. Comments that the Brooks Act applies to acquisition ofsome mapping services.
Most respondents (including all Government respondents)concur that the Brooks Act does not apply to acquisition of allmapping services.
A few recommend that the FAR should be modified to makethe Brooks Act procedures less applicable to the acquisition ofmapping services.
Most respondents recommend no change to the FAR. Thoughthese respondents offer different agency, mission-specificdecision criteria for using Brooks Act procedures, allGovernment respondents agreed the exercise of this discretionwas currently available in the FAR and strongly object to anychange that would reduce or remove this flexibility.
Response: The Councils have determined, based oninterpretation of the Brooks Act and decisions of theComptroller General, reaffirmed by NCEES and NCARB guidance,that the best solution is to retain FAR Part 36 withoutrevision.
Any criticism of the Brooks Act itself is outside thescope of this case.
Questions as to whether or not a specific procurement ofmapping services comes within the scope of the Act, mustcontinue to be resolved by the contracting officers and theirtechnical representatives in line with the policies andprocedures of each Federal agency.
Dated: April 12, 2005.
Julia Wise,
Director, Contract Policy Division.
[FR Doc. 05-7734 Filed 4-18-05; 8:45 am]
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