DATE: April 19, 2005
SUBJECT: Federal Acquisition Regulation (FAR); Application of the Brooks Act to Mapping Services
SOURCE: Federal Register, April 19, 2005, Vol. 70, No. 74, page 20329
AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)
SYNOPSIS: The Federal Acquisition Regulatory Council (FAR Council) has decided, after review of comments, that there is no need to amend FAR Subpart 36.6, Architect-Engineer Services, which requires application of the Brooks Architect-Engineers Act's qualifications-based selection process to certain types of mapping services while precluding application in other instances.
EDITOR’S NOTE: For more on the request for comments, see the March 23, 2004, FEDERAL CONTRACTS DISPATCH “Federal Acquisition Regulation (FAR); Application of the Brooks Act to Mapping Services.”
FOR FURTHER INFORMATION CONTACT: Cecelia Davis, 202-219-0202.
SUPPLEMENTAL INFORMATION: FAR Subpart 36.6, Architect-Engineer Services, particularly FAR 36.601, Policy, implements the Brooks Architect-Engineers Act or 1972 (Public Law 92-582), which requires that contracts for architect-engineering (A-E) services be negotiated based on the demonstrated competence and qualifications of prospective contractors to perform the services at a fair and reasonable price. However, FAR 36.601-4(a)(4) exempts "mapping services that are not connected to traditionally understood or accepted architectural and engineering activities," and requires that such mapping services be procured using the procedures in FAR Part 13, Simplified Acquisition Procedures, Part 14, Sealed Bidding, and Part 15, Contracting by Negotiation. These FAR parts, which are used for the procurement of most goods and services, allow agencies to base contract award on low price or cost or both price/cost and non-cost factors, including the tradeoff of cost and non-cost factors. This policy has been in effect since 1991.
Until 1999, paragraph (a)(4) of FAR 36.601-4, Implementation, contained the following sentence: "However, mapping services such as those typically performed by the National Imagery and Mapping Agency [NIMA, which is now called the "National Geospatial-Intelligence Agency"] that are not connected to traditionally understood or accepted architectural and engineering activities...shall be procured pursuant to provisions in Parts 13, 14, and 15." However, Section 8101 of the Department of Defense Appropriations Act of 1999 (Public Law 105-262) stated that NIMA was required to use the FAR Subpart 36.6 procedures when using fiscal year 1999 funds to award contracts for mapping, charting, and geodesy activities, rather than the provisions in FAR Parts 13, 14, and 15. Therefore, effective August 16, 1999, Federal Acquisition Circular (FAC) 97-12 amended FAR 36.601-4(a)(4) to remove "such as those typically performed by the National Imagery and Mapping Agency" from the sentence.
After publication of FAC 97-12, the Office of Federal Procurement Policy (OFPP) received a series of letters from some mapping industry representatives who claimed that the revision created confusion for the federal procurement community, and that the rule actually narrowed the application of the Brooks Act.
The FAR Council did not consider the removal of the reference to NIMA in 1999 to constitute a shift in longstanding policy regarding the application of the Brooks Act to mapping services. However, the FAR Council decided to seek public comments on the mapping policies articulated in FAR 36.601-4(a)(4), so it published a request for comments on March 23, 2004. Fifty-two respondents submitted comments, more than half of whom were government employees. Some respondents thought the Brooks Act should apply to all acquisition of mapping services; more respondents agreed that the Brooks Act applies only to some mapping services; a few respondents wanted the FAR amended to clarify that the Brooks Act is less applicable to the acquisition of mapping services; but most did not recommend any change to FAR Subpart 36.6. Therefore, the FAR Council has determined that the best solution is to retain FAR Subpart 36.6 without revision.
FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.
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