Federal Acquisition Regulation; Application of the Brooks Act to Mapping Services; Analysis of Comments, 20329-20333 [05-7734]

Agencies

• General Services Administration
• National Aeronautics and Space Administration
• DEPARTMENT OF DEFENSE

[Federal Register Volume 70, Number 74 (Tuesday, April 19, 2005)]
[Proposed Rules]
[Pages 20329-20333]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7734]


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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 Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION:  Notice; Analysis of Comments.

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SUMMARY:  The Defense Acquisition Regulations Council and the Civilian 
Agency Acquisition Council (the Councils) have reviewed the public 
comments received in response to the request for comments on the 
application of the Brooks Architect-Engineers Act to mapping services. 
The Councils have determined that no change to the FAR is necessary. In 
the interest of transparency, this notice sets forth the rationale 
supporting 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, and be negotiated on the basis of 
demonstrated competence and qualifications for the type of professional 
services required, at fair and reasonable prices. The Act established a 
specific qualification based procurement process to be used in 
procurements for architect-engineer services, which the Act defined as 
``those professional services of an architectural or engineering nature 
as well as incidental services that members of these professions and 
those in their employ may logically or justifiably perform.''
    Since enactment, Congress has expanded the definition of A-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 to FAR Part 36 shall specify that 
``the definition of architectural and engineering services includes 
surveying and mapping services to which the selection procedures of 
Subpart FAR 36.6 of the Federal Acquisition Regulation apply.'' Some 
interpret this to mean that all mapping services are subject to FAR 
Subpart 36.6. Others interpret the phrase ``to which the selection 
procedures of Subpart 36.6 of the Federal Acquisition Regulation 
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 through the A-E process or through normal 
competitive procedures is whether mapping services are associated with 
`traditionally understood or accepted architectural or engineering 
activities.'''
    The FAR states concerning professional surveying and mapping 
services of an architectural or engineering nature:
    Surveying is considered to be an architectural and engineering 
service and shall be procured pursuant to section 36.601 from 
registered surveyors or architects and engineers. Mapping associated 
with the research, planning, development, design, construction, or 
alteration of real property is considered to be an architectural and 
engineering service and is to be procured pursuant to section 
36.601. However, 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 shall be procured pursuant to 
provisions in Parts 13, 14, and 15. FAR 36.601(a)(4).
    During the years since enactment of the Brooks Act in 1972, the 
mapping

[[Page 20330]]

services industry has evolved extensively to become a producer of 
commercial data (digital) products with broad applications--quite 
distinct from the practice of architecture or engineering.
    This case was initiated after review of comments received in 
response to FAR Case 98-023, Application of the Brooks Act. FAR case 
98-023 was undertaken in response to enactment of Section 8101 of the 
National Defense Appropriations Act (Pub. L. 105-262), which required 
the National Imagery and Mapping Agency (NIMA) to procure mapping and 
charting services using Fiscal 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-based process 
listed NIMA mapping services as an example of services that were not 
subject to the qualification-based process. After enactment of Section 
8101, the listing of NIMA at FAR 36.601- 4(a) was no longer 
appropriate. As a result, FAR case 98-023 deleted 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 some objection to 
publication as a final rule without request for comment, the FAR 
Council found that removal of an example could not alter the 
fundamental meaning of the surrounding statements. Removal of an 
example did not change the FAR policies relating to application of the 
Brooks Act to mapping services.
    However, at the request of the FAR Council, DoD, GSA, and NASA 
published a notice in the Federal Register at 69 FR 13494, March 23, 
2004, requesting comments on the application of the Brooks Act to 
mapping services. Public comments were due May 24, 2004.

II. Analysis of Comments

    Fifty-two respondents submitted comments, of which more than half 
were government employees.
    Some of the respondents think that the Brooks Act should apply to 
all acquisition of mapping services.
    More respondents agree that the Brooks Act applies only to some 
mapping services. A few of the respondents in this later category want 
to clarify the FAR so that the Brooks Act is less applicable to the 
acquisition of mapping services. Most do not recommend any change to 
the FAR.
    1. Comments that the Brooks Act applies to the acquisition of all 
mapping services.
    Some respondents recommend that we amend the FAR to clearly require 
Brooks Act procedures for all acquisition of mapping services. These 
respondents maintain that contracting officers have no discretion to 
decide whether mapping services or surveying work requires Brooks Act 
procedures. These respondents support their position by assertions 
that--
    a. Credentialing requirements for mapping services identify these 
services as subject to the Brooks Act procedures;
    b. Qualification based procedures are necessary to avoid a broad 
range of public safety calamities;
    c. Prohibitions exist at the state-level on A-E competitive 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 and surveying do not support the views of 
these respondents. The pertinent foundational guidelines authored by 
The National Council of Examiners for Engineering and Surveying (NCEES) 
explicitly exclude mapping services from the professions of engineering 
and surveying.
    Assertion 1. Credentialing requirements for mapping services 
identify these services as subject to the Brooks Act procedures.
    To test this assertion, the Councils looked at the public guidance 
authored by the professional councils that advise states in governing 
the practice of architecture and engineering. These councils are 
National Council of Architectural Registration Boards (NCARB) and the 
NCEES. NCEES governs over Engineering (journeyman credential being 
Professional Engineer or PE) and Land Surveying (journeyman credential 
being Professional Land Surveying or PLS) as two distinct professions. 
NCEES also advises in areas of engineering not normally associated with 
development of real property (e.g., aerospace, automotive, industrial 
engineering). Moreover, NCEES and NCARB are charged with moderating the 
full range of professional practice rules and regulations to balance 
professional interest with public interest. In coordination with 
industry, state regulators, and building officials, these two 
organizations provide guidance over issues of credentialing (education, 
experience and exam requirements) and professional boundaries. These 
councils render their opinions within the general context of the law, 
profession and public interest. These opinions must survive public 
criticism from industry and non-federal national, state and local 
officials charged with protecting public interest including safety. As 
such, the Councils view the guidance of these councils as decisive and 
definitive in matters relating to the practice of architecture and 
engineering, individually and respectively.
    NCARB notes in their guidance to state governments: ``By far the 
great majority of state legislatures have demonstrated their statutory 
intent to distinguish between the practice of architecture and 
engineering.'' From NCEES's Model Law, (revised August 2004), (https://
www.ncees.org/introduction/about_ncees/ncees_model_law. pdf), the 
``practice of engineering'' is defined as follows:
    The term ``Practice of Engineering,'' within the intent of this 
Act, shall mean any service or creative work, the adequate 
performance of which requires engineering education, training, and 
experience in the application of special knowledge of the 
mathematical, physical, and engineering sciences to such services or 
creative work as consultation, investigation, expert technical 
testimony, evaluation, planning, design and design coordination of 
engineering works and systems, planning the use of land, air, and 
water, teaching of advanced engineering subjects, performing 
engineering surveys and studies, and the review and/or management of 
construction for the purpose of monitoring and/or ensuring 
compliance with drawings and specifications; any of which embraces 
such services or work, either public or private, in connection with 
any utilities, structures, buildings, machines, equipment, 
processes, work systems, projects, communication systems, 
transportation systems, and industrial or consumer products, or 
equipment of a control systems, communications, mechanical, 
electrical, hydraulic, pneumatic, chemical, environmental, or 
thermal nature, insofar as they involve safeguarding life, health or 
property, and including such other professional services as may be 
necessary to the planning, progress, and completion of any 
engineering services. (Paragraph 110.20A.5. Definitions).
    NCEES goes on to discern among the professionals involved in the 
development of real property:
    Design coordination includes the review and coordination of 
those technical submissions prepared by others, including as 
appropriate and without limitation, consulting engineers, 
architects, landscape architects, surveyors, and other professionals 
working under the direction of the engineer. (Paragraph 110.20A.5. 
Definitions).
    NCEES further clarifies the control hierarchy between engineers and 
surveyors:
    Engineering surveys include all survey activities required to 
support the sound conception, planning, design, construction, 
maintenance, and operation of engineered projects, but exclude the 
surveying of real property for the establishment of land

[[Page 20331]]

boundaries, rights-of-way, easements, and the dependent or 
independent surveys or resurveys of the public land survey system. 
(Paragraph 110.20A.5. Definitions).
    This sets context for NCEES to define the profession of surveying, 
apart from engineering. Distinct from Engineering, NCEES defines the 
practice of Land Surveying:
    The term ``Practice of Surveying,'' within the intent of this Act, 
shall mean providing, or offering to provide, professional services 
using such sciences as mathematics, geodesy, and photogrammetry, and 
involving both (1) the making of geometric measurements and gathering 
related information pertaining to the physical or legal features of the 
earth, improvements on the earth, the space above, on, or below the 
earth and (2) providing, utilizing, or developing the same into survey 
products such as graphics, data, maps, plans, reports, descriptions or 
projects. Professional services include acts of consultation, 
investigation, testimony evaluation, expert technical testimony, 
planning, mapping, assembling, and interpreting gathered measurements 
and information related to any one or more of the following:

    a. Determining by measurement the configuration or contour of 
the earth's surface or position of fixed objects thereon.
    b. Determining by performing geodetic surveys the size and shape 
of the earth or the position of any point of earth.
    c. Locating, relocating, establishing, reestablishing, or 
retracing property lines or boundaries 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) of land.
    e. Locating or laying out alignments, positions, or elevations 
for the construction of fixed works.
    f. Determining, by the use of principles of surveying, the 
position for any survey monument (boundary or non-boundary) or 
reference point; establishing or replacing any such monument or 
reference point.
    g. Creating, preparing, or modifying electronic or computerized 
or other data, relative to the performance of the activities in the 
above described items a. through f.
    Any person shall be construed to practice or offer to practice 
surveying, within the meaning and intent of this Act, who engages in 
surveying or who by verbal claim, sign, advertisement, letterhead, 
card, or any other way represents themselves to be a professional 
surveyor, through the use of some other title implies that they are 
able to perform, or who does perform any surveying service or work 
or any other service designated by the practitioner which is 
recognized as surveying. (Paragraph 110.20B.4. Definitions).

    Despite the broadly encompassing verbiage of the NCEES definitions 
of engineering and surveying practice, NCEES makes no mention of 
general mapping services as produced or procured only by the Federal 
Government. NCEES provides a detailed list of ``Inclusions and 
Exclusions of Surveying Practice.'' In fact, NCEES explicitly excludes 
any such academic, defense and political administration mapping 
efforts. The essence of the breakdown is that professional ``surveying 
work'' is tied to real property (boundaries, location of fixed, manmade 
works, and topography). Excluded items line up consistently with the 
Part 12 items mentioned. The Councils, therefore, note that NCEES holds 
surveying work to be distinct from engineering and mapping services.
    NCARB defines the Practice of Architecture in its Legislative 
Guidelines and Model Law, Model Regulations 2004- 2005, (revised August 
2004) (https://www.ncarb.org/Forms/legisgl.PDF) as follows:

    * * * consisting of providing or offering to provide certain 
services, hereafter described, in connection with the design and 
construction, enlargement or alteration of a building or group of 
buildings and the space within and the site surrounding such 
buildings, which have as their principal purpose human occupancy or 
habitation. The services referred to include pre-design; 
programming; planning; providing designs, drawings, specifications 
and other technical submissions; the administration of construction 
contracts; and the coordination of any elements of technical 
submissions prepared by others including, as appropriate and without 
limitation, consulting engineers and landscape architects. The 
practice of architecture shall not include the practice of 
engineering, but an architect may perform such engineering work as 
is incidental to the practice of architecture. (Legislative 
Guidelines Paragraph I.A.)

    The NCARB control hierarchy recognizes that an architect may do 
engineering, including surveying work, related and incidental to the 
creation of real property under their charge. Likewise, NCEES 
recognizes that an engineer may do surveying work related and 
incidental to the creation of real property under their charge. A 
surveyor, however, may never practice architecture or engineering in 
any capacity.
    Since professional credentialing has been used to identify Brooks 
Act application, the Councils broadly considered credentialing of 
commercial activity. The Councils note that credentialing occurs at 
both the state and local levels and is established for reasons outside 
of public safety. The broadest credentialing of individuals takes place 
in the broad realm of consumer protection. This ranges from 
credentialing tradesman, contractors, architects and engineers directly 
involved in the making of buildings; to surveyors, certified interior 
designers and landscape architects indirectly involved; to medical 
doctors, boxing and wrestling promoters, hair stylists, funeral 
directors or waste-water plant operators which have no direct 
connection to public safety relative to real property.
    Cadastral surveying work (land boundary surveying) is licensed 
distinct from the building design professions of architecture and 
engineering. Whereas architecture and engineering carry degree and 
examination requirements relating to theory and practical application 
of theory taught in an academic setting, cadastral surveying 
credentialing springs from hands-on training in the field working for a 
licensed surveyor.
    Construction itself is professionally credentialed by numerous 
states, yet procured under openly competitive means. When the Federal 
Government procures wastewater operations or medical related services 
that, for example, are licensed under dire public safety concerns, it 
does so under Part 15 not Part 36.
    The Councils conclude that state credentialing, even for public 
safety reasons, is not sufficient to distinguish a task as falling 
under Brooks Act procedures. The Councils also conclude that the 
credentialing that is pertinent to Brooks Act relates to the 
credentialing well established outside of the non-federal setting for 
the protection of public safety in the development of real property as 
discussed above.
    In summary, the Councils find that credentialing does not clarify 
distinctions with regards to surveying and mapping services. 
Credentialing provides meaningful distinctions only to the extent that 
the services are performed as part of design, construction, alteration 
and repair of real property.
    Assertion 2. Brooks Act qualification-based selection procedures 
are necessary to avoid a broad range of public safety calamities.
    Numerous products and services for which safety and public safety 
are critical are not procured using Brooks Act procedures. There is no 
question that the collective experience in Federal procurement finds 
the government procuring some of the most critical systems, products 
and services outside Part 36 selection procedures without public safety 
calamity or inconvenience. The Councils questioned the unstated premise 
of Brooks Act--that safety concerns necessitate Part 36 selection

[[Page 20332]]

procedures as the preferred method of selection. There are numerous 
counter-examples to this presumption. Namely, complex life saving and 
transportation systems (even extra-planetary), charting and disposal of 
unexploded ordnance, and medical services all are procured successfully 
without use of Part 36 procedures.
    The assertion appears to be based on the premise that ``government 
procurement procedures properly emphasized awarding contracts to the 
lowest bidder, or using price as a dominant factor.'' This comment 
ignores a decade of procurement reform, and presents an argument that 
predated the Competition in Contracting Act of 1984. It does not 
recognize current competitive practices associated with negotiated 
procurements such as negotiated best value source selection procurement 
or streamlined commercial items procedures.
    How is public safety governed in non-federal Real Property work? 
Public safety in non-federal real property work is maintained through 
layers of protection. Credentialing of Architects and Engineers by 
states is but one layer. This is accomplished either by state-run 
examinations or standardized exams provided nationally through not-for-
profit organizations. Architects and engineers both have secondary 
school educational requirements and on-the-job professional experience 
requirements. National Architectural Accrediting Board (NAAB) and the 
Accrediting Board for Engineering and Technology (ABET) accredits 
degree programs for both architecture and engineering. Furthermore, 
NCEES and NCARB deliberations place the architect in the lead role in 
the creation of habitable buildings. Protection also derives from 
codified National and International standards of building. Zoning 
controls the safe and healthful disposition of structures and uses and 
other planning ordinances coordinated by architects. These codes are 
enforced by plan reviews (county or city building departments) and 
credentialing enforcement actions. At each step, the real property 
solution is checked against accepted standards. In the non-federal 
setting, surveying and mapping services are not overseen and controlled 
as part of the public safety protection, except where they involve real 
property development.
    In Federal procurement of A-E services, licensed professional civil 
servants perform analogous real property public safety and health 
oversight as part of their quality assurance functions in the 
acceptance of finished designs obtained under contract.
    Assertion 3. Prohibitions exist at the state-level on A-E 
competitive bidding in securing work.
    The Councils note that NCARB provides the most detailed analysis of 
trends and current accepted practice in area of profession rules of 
conduct. In general, NCARB guidance to state boards notes a general 
professional shift towards favoring public interest (transparency and 
price competition) over rules that protect professional interests.
    NCARB in its Rules of Conduct, 2004-2005 (revised August 2004) 
(https://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 with Laws; 5) Professional Conduct. 
NCARB states:
    There are, however, various rules of conduct found in many 
existing state board rules which seem more directed at protecting 
the profession than advancing the public interest. Such a rule is 
the prohibition against allowing one architect to supplant another. 
. . . Similarly, prohibitions against brokers selling architects' 
services, fee competition, advertising, free sketches, and the like, 
seem more appropriately included in professional ethical standards 
than in rules to be enforced by state agencies. (Rules of Conduct, 
Introduction.)
    It appears that state restriction against A-Es competing for work 
has faded as an issue for state regulation. If this is true for states, 
this must influence the question whether Federal regulation should 
preserve non-competitive A-E procedures associated with real property 
work under the Brooks Act. The Councils could not find any guidance 
prohibiting Engineers and Surveyors from competing for projects. It 
seems likely, therefore, that surveyors and engineers can and do 
routinely compete for their non-federal assignments.
    Assertion 4. Legislative history clearly supports the application 
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 Forest Service, Department 
of Agriculture--Request for Advance Decision, B-233987, 233987.2, July 
14, 1989, 68 Comp. Gen. 555, 89-2 CPD Sec.  47, in which the GAO 
interpreted the 1988 Brooks Act revision clarifying the definition of 
A-E services. Prior to 1988, the Brooks Act defined architect and 
engineer services were defined as ``those professional services of an 
architectural or engineering nature as well as incidental services that 
members of these professions and those in their employ 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 Brooks Act amendment stated that ``the 
amendment is intended to clarify the definition of A-E services in 
response to General Accounting Office decisions issued since the 
enactment of the Brooks Act, `which have had the effect of narrowing 
the application of the law, particularly in the field of surveying and 
mapping.'''
    The Forest Service case also established that the new statutory 
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 of the Brooks Act as being a 
question of whether the service ``is the type which is incidental to 
professional services of an architectural or engineering nature, and if 
so, whether the service is one which members of the architectural and 
engineering profession may logically or justifiably perform.'' GAO also 
stated that ``The definition of A-E services includes traditional 
surveying and mapping services, whether or not incidental to an A-E 
project * * *''
    The Comptroller General interpreted the FAR language implementing 
the amended statute 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, 
are of an A-E nature which should logically or justifiably be performed 
by A-E professionals.'' Because the applicability of Brooks Act 
procedures should be determined on a case-by-case basis, the 
Comptroller General chose not to establish a blanket rule in 
anticipation of future Forest Service procurements for road, trail and 
bridge construction, but concluded that it would review any such 
protest under its abuse of discretion standard.
    GAO reaffirmed its use of this standard in subsequent protest 
decisions. See White Shield, Inc., B-235522, Sept. 21, 1989, 68 Comp. 
Gen. 696, 89-2 CPD Sec.  257 (sustaining a protest against use of non-
Brooks Act procedures for cadastral mapping surveying services because 
there was no indication that the surveying and mapping services work 
involved was not traditional A-E in nature; the CO improperly relied on 
outdated case law

[[Page 20333]]

by using the test of whether the services were incidental to an A-E 
project, instead of the test of whether the services were traditional 
A-E services) and Fodrea Land Surveys, B-236413, Oct. 19, 1989, 89-2 
CPD Sec.  364 (denying a protest where agency planned to use Brooks Act 
procedures to secure cadastral land surveying services because the 
record did not indicate that the surveying and mapping services were 
not traditional A-E services).
    2. Comments that the Brooks Act applies to acquisition of some 
mapping services.
    Most respondents (including all Government respondents) concur that 
the Brooks Act does not apply to acquisition of all mapping services.
    A few recommend that the FAR should be modified to make the Brooks 
Act procedures less applicable to the acquisition of mapping services.
    Most respondents recommend no change to the FAR. Though these 
respondents offer different agency, mission-specific decision criteria 
for using Brooks Act procedures, all Government respondents agreed the 
exercise of this discretion was currently available in the FAR and 
strongly object to any change that would reduce or remove this 
flexibility.
    Response: The Councils have determined, based on interpretation of 
the Brooks Act and decisions of the Comptroller General, reaffirmed by 
NCEES and NCARB guidance, that the best solution is to retain FAR Part 
36 without revision.
    Any criticism of the Brooks Act itself is outside the scope of this 
case.
    Questions as to whether or not a specific procurement of mapping 
services comes within the scope of the Act, must continue to be 
resolved by the contracting officers and their technical 
representatives in line with the policies and procedures 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]
BILLING CODE 6820-EP-S