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FEMA MAP MODERNIZATION PROCUREMENT PROCESS CHALLENGED
COFPAES has written the Federal Emergency Management Agency (FEMA) expressing concern about a notice appeared in FedBizOpps on November 15 (EMW-2003-MR-1115), regarding the future acquisition strategy for FEMA's flood maps.
Thomas W. Brooks, Jr., LS, Chairman of COFPAES, wrote that “as the notice reports, ‘Historically, map development of this type has been done by the Architectural and Engineering Profession under contracts awarded using the AE source selection process in the Federal Acquisition Regulation Part 36, commonly known as the Brooks Bill process.’ It goes on to say that market research is being conducted and FEMA ‘will develop an acquisition strategy to conduct this acquisition’, which may include a process other that the Brooks Act and FAR part 36.
COFPAES objected to the process, saying FEMA lacks “the authority to change its acquisition strategy. The Brooks Act is mandatory, not discretionary. There has been no change in law, (Federal or state), regulation, or in the scope of the FEMA mapping program, that would justify or authorize a process other than the Brooks Act. COFPAES does not believe that what FEMA is proposing is permitted by Federal law. There has been NO change in the Brooks Act (40 USC 541 et.seq.) nor its implementing regulations (FAR Part 36). As noted above and in the notice, FEMA has "historically" used the Brooks Act process for these services. The Brooks Act and the FAR require this process for services that have "traditionally" been considered of an architectural and engineering nature. The traditional or historical use of the Brooks Act for these services has been long established by FEMA, and to make a change now is not consistent with the law or FAR. Additionally, the services required for flood mapping fall within the state licensing law definitions or architecture, engineering and surveying. The Brooks Act and FAR require agencies to use the Brooks Act when these services require performance by a person appropriately licensed, registered or certified to perform such services.”
OMNIBUS APPROPRIATIONS PROVISION PREVENTS USACE REFORM
Contracting by the Corps of Engineers could be curtailed if a little-noticed provision in the Omnibus FY2003 Appropriations Bill is enacted. Section 110 of the Senate-passed version of H.J. Res. 2 provides, “None of the funds appropriated herein or hereafter in this Act, or any other Act, shall be used to study or implement any plans privatizing, divesting or transferring of any Civil Works missions, functions, or responsibilities for the U.S. Army Corps of Engineers to other government agencies without specific direction in a subsequent Act of Congress.” COFPAES staff is investigating the intent and affect of the provision with Congressional and OMB officials.
MIKULSKI AMENDMENT REJECTED; CONFERENCE POSSIBLE
The U.S. Senate defeated an amendment to the Omnibus FY2003 Appropriations Bill, offered by Sen.. Barbara Mikulski (D-MD), by a 50-47 vote on January 23. Earlier, by a 50-48 vote, the Senate approved an amendment by Sen. Craig Thomas (R-WY) that was intended to pre-empt the Mikulski Amendment. It would prohibit arbitrary competitive sourcing quotas, but permit such goals that are based on a reasoned method and would not in any way limit an agency's ability to contract with the private sector. That language was worked out earlier in the day on Thursday between the staff of Senator Thomas, the White House, and the staff of Senator Mikulski. Later, Senator Mikulski rejected the compromise and moved ahead with her own amendment.
The Mikulski Amendment would have reinstated the language put on the Treasury Appropriations bill last summer by Sen. Byron Dorgan (D-ND). It would have prohibited the White House from expending funds to set goals or targets for competitive sourcing of commercial positions on agency FAIR Act inventories. The anti-outsourcing language was dropped by Senate Republicans, after winning back control of the Senate in November, when they combined all 11 remaining appropriations bills into one omnibus bill, H.J. Res. 2.
Senator Mikulski called the Bush program "bounty hunters in Federal agencies", while Senator Craig Thomas (R-WY), author of the FAIR Act, said, "the goal of the FAIR Act is to spend the taxpayers' money as efficiently as possible to ensure the Federal Government does not compete with the private sector".
On the Mikulski Amendment all Republicans voted "no" except Senators Snowe (R-ME) and Specter (R-PA) and all Democrats voted "yes", except Senator Miller (D-GA). Absent were Senators Harkin (D-IA), Inouye (D-HA), and Kerry (D-MA).
The issue may arise again in the House-Senate conference committee on the remaining FY2003 funding legislation.
STATES SEEK LIMITS ON OFF-SHORE SUBCONTRACTING
At the COFPAES delegates meeting in Washington, DC in November, there was discussion of the practice of sending subcontract work to off-shore entities. Delegates agreed to explore whether there were homeland security concerns about the practice. It turns out others are concerned about this issue as well. Legislation is pending in state legislatures to address the issue.
In Connecticut, State Senator Joseph Crisco (D) introduced Proposed Senate Bill 644 on January 24. The measure will require that workers on state contracts be American citizens, legal aliens or have some specialty for which such workers cannot be found. It attempts to prohibit companies that receive state contracts from recruiting workers who live outside the United
States and are not United States citizens. The proposal can be found at: www.cga.state.ct.us/2003/tob/s/2003SB-00644-R00-SB.htm.
Maryland. Delegate Pauline Menes (D) introduced H.B. 176 on January 27, which prohibits a procurement unit from awarding a contract for services to be rendered by a contractor or subcontractor from a site that is located outside the United States. H.B. 176 provides exceptions for services to be rendered for an event or proceeding outside the United States, and when the Board of Public Works gives approval. The bill can be viewed at:
http://mlis.state.md.us/2003rs/bills/hb/hb0176f.rtf
AGRICULTURE AGENCY PROPOSES A-76 STUDY OF CIVIL ENGINEERING
Natural Resource Conservation Service, an agency of the U.S. Department of Agriculture, has issued a notice that it intends to conduct an OMB Circular A-76 public-private competition for civil engineering technician services, including a variety of services to include "field investigations and topographic surveys, inventories of soils, livestock, water resources, collection of data for planning, design and construction of soil and water conservation practices; these services include surveying (using state of art survey equipment), drafting (using CADD), conducting soils investigations, performing designs of conservation practices, providing construction quality assurance during the construction of these conservation practices; training of other staff and partner agency staff in providing these services to landowners."
It indicates it will be an A-76 "cost comparison". The solicitation is not expected until September. The A-76 document is being revised, with the final regulation expected in March. COFPAES is urging the Office of federal procurement policy (OFPP) to include in the revision an accommodation of QBS.
To keep informed of progress on the USDA competition, notify the Contracting Office by email. For information, go to: www.eps.gov/spg/USDA/NRCS/NPRO/RFP-NHQ-03-003/SynopsisR.html
BUNDLING REGULATIONS PROPOSED
The Bush Administration has proposed regulations to implement the President’s small business initiative to deter contract bundling, or the consolidation of several small contracts for which small business might be competitive into larger contracts that put small firms at a competitive disadvantage. COFPAES is drafting comments that will suggest the regulation include a long-standing COFPAES position that bundling of A/E and non-A/E services, resulting in a non-QBS procurement, should not be permitted. To view the proposed rules, go to:
http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/03-2159.htm
COFPAES Submits Comments on Bundling
Click Here to view the comment letter.
WWW.COFPAES.ORG IS UP AND RUNNING
The COFPAES web site, www.cofpaes.org, has been launched. The web site includes news and information about COFPAES and its member organizations, as well as the public policy issues and advocacy activities of the coalition.
The web site will be updated virtually daily to keep member organizations, and their individual members, as well as government officials and the interested public, informed of issues affecting public procurement of architectural-engineering and related services.
CORPORATE MEMBERSHIPS APPROVED IN COFPAES
Individual A/E firms can join a special new membership category in COFPAES. Dues are just $250 per year for “sustaining members.” Among the membership benefits, sustaining member firms can attend the biannual Washington, DC meetings with Federal officials, receive this newsletter, have a firm web page link from the COFPAES web site, and observe COFPAES delegate deliberations. For a brochure, send an email to COFPAES@AOL.COM or go to the COFPAES web site where the brochure and enrollment form will soon be available.
COFPAES OPPOSES GSA SCHEDULE FOR STATE, LOCAL A/E PROCUREMENT
A new provision of law that would permit state and local government to purchase information technology products and services from the GSA’s Federal Supply Schedule should NOT be used to circumvent the qualifications based selection (QBS) process required by the “Brooks Act” (40 USC 541 et. seq.) and its implementation in Federal Acquisition Regulation (48 CFR 36.601), COPAES told a GSA public hearing on February 4.
COFPAES Administrator John Palatiello told the GSA forum that Congress did not intend to amend existing Federal law nor supersede existing state laws, particularly the more than 35 “mini-Brooks Acts” in the various states, and state licensing law definitions which require performance of services by licensed design professionals. The current GSA Schedule 70 provides for price-based selection of firms for services which fall under the FAR and state law defined A/E services, particularly in the area of geographic information systems (GIS). COPAES has been working with GSA to revise its schedules to assure their compliance with the Brooks Act QBS process.
Section 211 of the E-Government Act of 2002 (Public Law 107-347) permits “cooperative purchasing” by state and local government of IT products and services from GSA’s Federal Supply Schedule for automated data processing equipment, software and services, as contained in Federal supply classification code group 70. The February 4 hearing was on proposed regulations to implement the new law.
WATER BILL IN HOUSE INCLUDES QBS
Legislation introduced in Congress to authorize appropriations for State water pollution control revolving funds includes a requirement that state and local entities use the qualifications based selection process when contracting for A/E services. H.R. 20, the “Clean Water Infrastructure Financing Act of 2003”, introduced by Reps. Susan Kelly (R-NY) and Ellen Tauscher (D-CA), makes funds available to each State water pollution control revolving fund and authorizes loan guarantees. Section 3(b) of the bill says each “State will require that each contract and subcontract for program management, construction management, planning studies, feasibility studies, architectural services, preliminary engineering, design, engineering, surveying, mapping, and related services entered into using amounts from the fund will be awarded in the same way that a contract for architectural and engineering services is awarded under chapter 11 of title 40, United States Code, or an equivalent qualifications-based requirement prescribed by the State”.
A-76 MUST BE QBS COMPATIBLE
The revision to Circular A-76, currently under consideration by the Office of Management and Budget’s (OMB) Office of Federal Procurement Policy (OFPP), should reflect the qualifications based selection (QBS) process in the Brooks Act and the FAR, COFPAES has suggested in comments.
COFPAES said it “strongly supports the use of the private sector for commercially available A/E services. While we believe there are important inherently governmental A/E functions that government employees should perform - such as agency needs assessment; establishment of agency priorities and projects (including acquisition plans); establishment of standards; development of scopes of work; development of government estimates for contract negotiation; and the management and award of contracts - we believe the actual performance of commercially available A/E services, as defined in 40 U.S.C. 541 et.seq. and FAR Part 36, is a commercial activity that should be carried out by the private sector. Thus, we strongly support the philosophy of OMB Circular A-76 and endorse the policy that the government should rely on the private sector to the maximum extent possible for commercially available goods and services.”
The coalition went on to note that” OMB Circular A-76, as currently written and in the draft revision, is inherently in conflict with the statute and the FAR with regard to A/E services. Federal law, known as the Brooks Architect-Engineer Act, 40 U.S.C. 541-544 provides for a qualifications based selection (QBS) process for the selection of firms for A/E services. This process, implemented in FAR Part 36, provides for private firm competition based on qualifications, past performance, and firm competence and qualifications. Price is only a factor after the most qualified firm is selected when there is a negotiation between the selected firm and the government to arrive at a fee that is fair and reasonable to the government. Inasmuch as the statute does not provide for private-private cost competition, we believe the application of the current or revised A-76 is in violation of the Brooks Act, since either would contemplate public-private price competition.” COFPAES suggested “direct conversion to the private sector of A/E services (other than those inherently governmental core competency activities listed above). A/E services should be designated for direct conversion, exempt from the public-private competition requirements of the Circular, similar to the way research and development (R&D) is treated” or “a significant re-write of Circular A-76 is required by the Brooks Act in order for the Circular to be in compliance with the law by specifying a process that is qualifications based selection (QBS), rather than one that includes price as a factor.”
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April 29, 2008
Federal A/E Forum
American Institute of Architects
1735 New York Ave., NW
Washington, DC
Time TBA
Register Here
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