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.