Public Testimonies

“Are New Procurement Methods Beneficial to Small Business Contractors?” 

Testimony of John M. Palatiello
Council on Federal Procurement of Architectural & Engineering Services (COFPAES)
before the
House Committee on Small Business
March 6, 2008

Madam Chairman, members of the Subcommittee, I am John Palatiello and I serve as Administrator of the Council on Federal Procurement of Architectural and Engineering Services (COFPAES). COFPAES was formed in the 1960s to serve as the unified voice of the architectural, engineering and related (A/E) services profession on issues related to Federal contracting. Our member organizations are the American Congress on Surveying and Mapping (ACSM), American Institute of Architects (AIA), American Society of Civil Engineers (ASCE), Management Association for Private Photogrammetric Surveyors (MAPPS) and National Society of Professional Engineers (NSPE). Throughout its history, COFPAES has focused on ensuring quality and competence in procuring professional A/E services.  COFPAES serves the American public by assisting Congress and Federal agencies in ensuring that projects to satisfy the building, infrastructure, resource, defense, and security needs of our Nation are conducted in an efficient and quality manner. The Council is the major policy advocate for the “Brooks Act” (40 U.S. Code 1101 et. seq. and part 36.6 of the Federal Acquisition Regulation (FAR)), the qualifications based selection (QBS) process that governs Federal procurement of A/E services. While acting as a sounding board on federal procurement procedures, policies, and regulations, COFPAES has stimulated the development of SF254 and SF255 questionnaires, and their successor, the SF330, and published guides to contracting with the federal government. COFPAES also hosts a forum for the exchange of information between public servants and private practitioners on issues affecting A/E procurement.

Thank you for this opportunity to share our views on “Are New Procurement Methods Beneficial to Small Business Contractors?”

The Federal Government has an annual construction budget (direct and grant-in-aid) of more than $55 billion and contracts for A/E services of more than $5 billion. America’s architects, engineers, surveyors and mapping professionals, in large business and small, are the world’s leaders and they contribute to the health, welfare and safety of the American people.

Brooks Act Qualifications Based Selection (QBS)

The basis for present statutory authority for procurement of personal and professional services, and the use of QBS, can be traced back to an 1861 Appropriations Act. 12 Stat. 214 (1861). This Act provided for the appropriation of funds for various purposes, including the compensation of civilian surveyors. Section 10 directed that all contract for supplies or services be made by advertising for proposals “except for personal services.” Id. at 220. A year later, the
Attorney General ruled that a contract for surveying was a contract for personal services within the meaning of the Act and, therefore, could be made without advertisement and competitive bidding. 10 Op. Atty. Gen. 261 (1862). In reaching his decision, the Attorney General observed:

“…although this policy (price competition) is certainly desirable in all cases, there are yet some to which it cannot well be applied. Such are contracts for services which require special skill and experience… In all contracts for services which presuppose trained skill and experience, the public officer who employs the service must be allowed to exercise a judicious discrimination, and to select such as, in his judgment, possesses the required qualifications.

Of this class are contracts for surveying the public lands. The service to be performed requires not only fidelity and integrity, but a certain kind of skill and knowledge, and the officer whose duty it is to let the contract, is bound to know that the person he employs possesses these qualifications. It is not half so important to have the work done cheaply as to have it done well, and the price to be paid for it, whilst it should be but fair and reasonable, ought to be far from controlling consideration”. (Id. at 262 (emphasis added)).

The process was codified in 1972 in Public Law 92-582 and amendments to the Brooks Act were enacted in 1988 in section 724 of Public Law 100-656 and section 8 Public Law 100-679. Congress has clarified or applied the Brooks Act to Federal agency activities, or Federal grant programs, in a variety of laws, including the 1982 Military Construction Codification Act, 1983 Supplemental Appropriations Act, 1983 Competition in Contracting Act, 1986 Superfund Amendments, Section 119(f), 1986 Water Resources Act, Section 918, 1986 Defense Appropriations Act, Section 8087, 1987 Defense Appropriations Act, 1987 Highway Act, Section 111(2)(A), 1987 Airport and Airway Safety and Capacity Expansion Act, Section 109(g), 1988 Energy and Water Development Appropriations Act, Section 377(b), 1997 Omnibus Consolidated Appropriations Act, and the 1999 Department of Defense Appropriations Act.

This time-tested and proven process is also codified in more than 40 state “mini-Brooks Acts,” and is recommended in the American Bar Association’s Model Procurement Code for State and Local Government.

The need for the Brooks Act was articulated by then-Representative Albert Gore, Jr., as Chairman of the Subcommittee on Investigations and Oversight of the House Committee on Science and Technology –

“Federal procurement practices that lead to or promote the selection of architects and engineers on a “low-bid” basis should be changed to require prequalification of bidders, with greater consideration given to prior related experience and past performance of the parties seeking the contract award…The government should also ensure that all necessary architectural and engineering design and on-site services in public construction projects are furnished by licensed professionals who are qualified and experienced to assure the construction of safe structures.” (“Structural Failures in Public Facilities,” March 15, 1984)

When the Brooks Act was being debated in the Congress in 1972, the rationale for qualifications-based selection was articulated by several members.

Mr. Jackson: This legislation would not establish any new policy regarding the procurement of architect-engineer services by Federal agencies, but it would confirm long-established existing practices whereby such professional services are secured by a professional selection and negotiation process under which the emphasis is on professional qualification and expertise for the specialized services which are needed from time to time for the Federal agencies to carry out their missions … we have over the years excluded professional services from the normal competitive bidding requirements for government purchase of services (41 U.S.C. 252(c), 10 U.S.C. 2304(a), 41 U.S.C. 5). 118 Cong. Rec. 36182 (1972).

Read the full testimony…

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