How are mapping services acquired?

A reader raised the following topic: A federal agency plans to buy automated mapping products and services. The agency claims the procurement is exempt from the Competition in Contracting Act's requirement to consider price or cost when selecting an offeror. Is this correct, and if so, why are the rules for mapping so unusual?

Jack Brooks, a former Congressman from Texas, fathered two laws that bore his name and pertain to government procurement. The first, which is most familiar to government information technology professionals, gave the General Services Administration oversight of government IT acquisition. That statute was repealed by the Information Technology Management Reform Act of 1996.

The second Brooks Act (40 U.S.C. : 541, et seq.), established the procedures government uses to acquire architect and engineering (A&E) services. This piece of legislation, which has not been repealed, is implemented in Federal Acquisition Regulation (FAR) subpart 36.6.

Under the Brooks Act for A&E services, companies do not compete on price, which is a rather unique situation in government contracting. For all other government procurements, the Competition in Contracting Act requires agencies to consider price or cost in all procurement decisions. However, the architects and engineers who wanted to be exempt from this requirement convinced Brooks that their professional ethics prohibited them from competing on price. Accordingly, Congress established the unique procedures, outlined below, for such special procurements.

Under the Brooks Act, A&E services are defined to include "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." They also include such logically related services as surveying, mapping, drawing preparation and the like. (See 40 U.S.C. : 541.)

GAO's Guidelines

The General Accounting Office, however, has made it clear that surveying, mapping, etc., can be acquired under the unique procedures of the Brooks Act only when they are incidental to specific construction projects. The Brooks Act does not apply to the acquisition of mapping services that are unrelated to construction projects. (See, for example, Timberland-McCullough Inc., B-208086, Sept. 24, 1982, 82-2 CPD 273.)

When the Brooks Act applies to a procurement, the acquiring agency establishes a review board to evaluate the offerors' qualifications. The evaluations are limited to six criteria:

* The professional qualifications necessary for satisfactory performance of required services.

* Any specialized experience and technical competence in the type of work required.

* The capacity to accomplish the work in the required time.

* Past performance.

* Location in the general geographical area of the project and knowledge of the locality of the project.

* Acceptability under other appropriate evaluation criteria (see FAR 36.602).

Following the selection board's identification of the most highly rated firms, the source selection official will authorize the commencement of price negotiations with the No. 1 firm. If the parties agree on an acceptable price, a contract is awarded. If an agreement on price cannot be reached, negotiations will be conducted with the No. 2-rated firm in a similar manner. However, the first company will not be given another chance to change its price.

Brooks Act in Action

In Mounts Engineering [64 Comp. Gen. 772, 85-2 CPD 181 (1985)], the GAO sustained a bid protest against an agency's deviation from the established procedures for selecting an A&E contractor under the Brooks Act. As the GAO noted, the selection board is required to recommend to the selection official, in order of preference, no less than three firms deemed most highly qualified, after which "the selection official then must make the final selection in order of preference of the firms most qualified to perform the required work," and "negotiations are held with the firm ranked first." In that case, GAO found that the procuring agency had violated the applicable law by finding two companies to be "equally preferred" despite the selection board's assignment of different point scores to the two firms.

In Asbestos Management Inc. [B-237841, March 23, 1990, 90-1 CPD 325] , GAO emphasized the importance of the documentary record in these cases.

In that case, GAO sustained a protest against an agency's failure to select the protester for the negotiation of a contract because the agency apparently did not properly consider all the relevant information. Although the agency argued generally that there were no errors—- or that any errors were nonprejudicial—- GAO found that the record was insufficient to support the agency's decision.

Clearly, the Brooks Act is an anomaly. However, as discussed, it is one that is extremely limited in scope.

-- Peckinpaugh is a member of the government contracts section of the law firm Winston & Strawn, Washington, D.C. This column addresses legal topics that arise in government acquisition and management of ADP resources. Readers are encouraged to submit topics by e-mail to carl@carl.com, or by voice mail to (703) 876-5151, Ext. 2965. This column discusses legal topics of general interest only and is not intended to provide legal advice. Should you have a specific question or legal problem, consult an attorney.