Raising Awareness of The Brooks Act with Younger Engineers

Most of my relatively younger engineering colleagues and I are not familiar with the Brooks Act, formally known as Public Law 92-582. So these past few weeks, a few of us researched and discussed this law and some of its influences on the engineering profession. This is what we found:

The Brooks Act, named for the former Congressman Jack Brooks, is the 1972 law that established quality-based-selection (QBS) as the procurement process to select architects and engineers for design contracts with the federal government. Under the act, A/E contracts are negotiated and awarded on the basis of demonstrated competence and qualifications, as opposed to the lowest bid. This language reads terrific. Yet, our research shows that while the Brooks Act language is exemplary, its implementation is less than ideal.

For instance, almost all states have adopted the law; however, this does not necessarily mean that local jurisdictions within these states have done the same. A study conducted in New York City (Christodoulou et al) highlights that New York continues to use competitive pricing as its primary method of selecting A/E consultants. The study concluded that "presumed cost savings in design services for existing price-dominant practices were actually insignificant and most definitely offset by escalating costs in the construction phase." In our opinion, this means that engineers have strong incentive to bid low in order to obtain federal projects in New York City even though this does not necessarily yield savings to the project, and further degrades the value of engineering services.

Another interesting aspect of the Brooks Act is that even though federal agencies are required to use QBS, federal contracting officers have ordered A/E services not included in the Federal Supply Schedule. The abuses resulted in a rule in September 2005 by the Federal Acquisition Regulation Council (FAR) that reinforced compliance for all federal agencies with the Brooks Act. The rule reiterates that "orders may not be placed under General Services Administration (GSA) multiple award schedule contracts or government-wide task and delivery order contracts unless the contracts are awarded using FAR Part 36 (Construction and Architect-Engineer Contracts)."

Upon further research, we found that the Brooks Act has been challenged several times throughout the years, particularly on interpretations of "architectural and engineering services." In 1988, Congress amended the Brooks Act and supplied a new definition of covered services. Congress later expanded the act to include surveying and mapping.

Without an enforcement mechanism, non-compliance of the Brooks Act will likely continue. Some plausible steps to avoid this have been presented by the American Institute Association to the GSA:

• Increase GSA enforcement efforts to ensure that existing multiple-award schedules are not exploited by agencies to bypass QBS procedures;
• Remove A/E services that are currently offered under multiple award schedules;
• End abuses of multi-year contracts and design-build contracts that allow agencies to circumvent the Brooks Act; and,
• Develop a program to provide advice and training about QBS for all contracting officers across the federal government.

Since 1972, QBS procurement has been extended to include highway, mass transit, airport grant programs, and prime and subcontracts under the Superfund program. This year, the American Society of Civil Engineers is seeking to incorporate QBS language into all major infrastructure legislation (e.g. RIDE-21, WATER-21, and dam rehabilitation).

From our limited study, my colleagues and I recommend strongly that younger engineers pay attention to the Brooks Act’s development and ramifications. In our opinion, this Act changes significantly our professional perception (commodity vs. professional services) and our professional compensation.

What do you think of the Brooks Act? Send your comments to civilconnection@cenews.com.

Posted in | January 29th, 2014 by

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