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October 27, 2020
Brooks Act Celebrates 48th Anniversary of Enactment

Tuesday, October 27, 2020 - Fairfax, VA – “Today marks the 48 anniversary of the enactment into Federal law of the ‘Brooks Act’, the law providing for qualifications based selection of firms to provide architecture, engineering, and related services, including surveying and mapping,” according to John Palatiello, Administrator of the Council on Federal Procurement of Architectural and Engineering Services (COFPAES).

On October 27, 1972, President Nixon signed Public Law 92-582. The law codified the traditional process that emphasizes the importance of quality over low price in the selection of firms to provide architecture, engineering and related services that dates back to before the Civil War. It provides for the selection of firms to perform architecture, engineering and related services on the basis of the competence, qualification, background, and track record of competing firms, not the lowest bid.

“Ask 10 A/E firms to bid on the design of a particular facility and many agencies will take the easy way out and select the low bidder. Under such circumstances, we may end up with a technically capable architect or engineer, but one who, for lack of experience or because of a desire to stay within his bid reduces the time spent on field surveys or in the preparation of detailed drawings, or in providing inspection services. As a result, the government may have saved itself a half of one percent to the cost of construction, operation or maintenance,” said Senator Jennings Randolph (D-WV) on the Senate floor during the 1972 debate on the legislation that became the Brooks Act.

The “qualifications based selection” or “QBS” process is codified for Federal agencies in title 40 of the United States Code, section 1101. Named for its author, then-Representative Jack Brooks (D-TX), the Brooks Act was passed in 1972 on a bipartisan basis and has been supported by lawmakers in both parties over the ensuing 48 years.

Long before “best value” and “past performance” became the tenet of Federal procurement, the Brooks Act was enacted to assure that quality and competence was invested in “A/E” services, so the integrity of buildings, facilities and other government activities dependent on designs, drawings, surveys, and other related services could be relied upon during construction operation and maintenance over the life of such structures. The QBS process is also endorsed by the American Bar Association in its Model Procurement Code for State and Local Government. Almost every state has enacted a “mini-Brooks Act”.

The Federal law requires an agency’s public announcement of its requirements for professional A/E-related services, interested firms compete by submitting their qualifications, usually on a standard government form, SF 330, the agency evaluates the firms’ submittals and selects a short list of most qualified firms for an interview. Based on evaluations of the firms’ qualifications, experience, past performance and other factors, the agency determines which firm is the most qualified to meet the government’s requirements. The government prepares an independent estimate of the anticipated cost, and a negotiation is held between the government and the selected firm to arrive at a price that is fair and reasonable to the government. In the process, the government holds the cards. If a fair price cannot be negotiated, the government is free to terminate the negotiation and begin discussions with the second ranked firm.

There is no law anywhere in the United States that requires competitive bidding for A/E or related services. 

There is no doubt that the United States has suffered its share of faulty buildings. After incidents such as the collapse of the Hyatt regency in Kansas City and the implosion of the roof of the Hartford Civic Center, Congress investigated these incidents and issued a report on “Structural Failures in Public Facilities” in 1984. It found, “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.” The chairman of the subcommittee conducting the study and publishing the report was then Rep. Al Gore, Jr. (D-TN). As President, Ronald Reagan said at ceremony recognizing design excellence in Federal buildings said, “Good design doesn’t cost money. Good design saves money, and you know how that warms my heart.”

When earthquakes, hurricanes, and other calamities impact foreign countries, the destruction to buildings too often results in tragic loss of life. In America, such instances are rare, due to strong building codes and excellence in A/E services employed through the QBS process. Non-construction related services also benefit from the emphasis on quality. A recent drowning in Loudoun County, Virginia was attributed to inaccurate and incomplete mapping use by the local 911 emergency response system. The Commonwealth of Virginia does not use its state QBS law for this mapping program.

When the landmark Competition in Contracting Act was enacted in 1984 in response to the scandals related to over-priced coffee pots and toilet seats bought by the Pentagon, Congress defined the QBS process as a competitive procedure in Federal law. During consideration of the original Brooks Act in 1972, Senator Edward Gurney (R-FL) explained “any Federal procurement officer … will tell you that competition based on professional-technical qualifications is every bit as hot and demanding as competition based on price, perhaps more so.”

The famous showman, P.T. Barnum is well known for saying, “There’s a sucker born every minute.” What is less known is that Barnum also observed, “The smartest way of deriving the greatest profit in the long run is to give people as much as possible for their money.” To the nineteenth century British author John Ruskin is attributed the observation, “It’s unwise to pay too much, but it’s worse to pay too little. When you pay too much, you lose a little money — that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing it was bought to do. The common law of business balance prohibits paying a little and getting a lot — it can’t be done. If you deal with the lowest bidder, it is well to add something for the risk you run, and if you do that you will have enough to pay for something better.”

There is no evidence that selecting architects, engineers, surveyors, or mapping professionals on the basis of price results in higher costs. Indeed, given that such services amount to less than 1/10th of 1 percent of the total life cycle cost of a structure or facility, but affect the operation and maintenance costs over the life of the facility, the research and data shows the investment in quality in design-related services saves money and human lives.

A study conducted jointly by the University of Colorado and Georgia Institute of Technology drew from a database of approximately 200 public and private construction projects in 23 states, including transportation, water, commercial and industrial projects, ranging in size from relatively small projects to those costing hundreds of millions dollars. Its authors compared various procurement methods, including QBS, Best Value, and Low-Bid, with such factors as total project cost, projected life-cycle cost, construction schedule, and project quality outcome. Results showed that using QBS to procure the design component of a construction project “consistently meant lower overall construction costs, reduced change orders, better project results and more highly satisfied owners than in other procurement methods”.

Competence, qualifications, and quality are important; more important than price. Just as a poorly designed dam can burst, resulting in huge claims, so too can a poorly planned or executed design, survey or map unleash a flood of problems, creating an impediment to the expeditious completion of a government project, causing substantial loss of time and money, and jeopardizing the public safety. Like a well made dam, a high quality design, survey or map will stand the test of time and will ensure that the government can proceed with its design, construction, resource planning or E-911 project based on complete, accurate, and reliable data.

The Brooks Act is a law that works. It is part of what makes the United States the envy of the world. And it may just save lives.

COFPAES is a national coalition of design professional societies and associations, including the American Institute of Architects, American Society of Civil Engineers, International Institute of Building Enclosure Consultants, and National Society of Professional Surveyors. COFPAES membership is open to associations and societies in the design field, as well as individual firms.

 

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