DATE: March 23, 2004

SUBJECT: Federal Acquisition Regulation (FAR); Application of the Brooks Architect-Engineers Act to Mapping Services

SOURCE: Federal Register, March 23, 2004, Vol. 69, No. 56, page 13499

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Request for Comments

SYNOPSIS: The Federal Acquisition Regulatory Council (FAR Council) is seeking comments on whether guidance in FAR Subpart 36.6, Architect-Engineer Services, addressing mapping services should be amended. FAR Subpart 36.6 currently 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.

DATES: Comments should be submitted on or before May 3, 2004.

ADDRESSES: Submit comments to General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405, or by e-mail to MappingNotice@gsa.gov. Cite "Mapping Notice" in all correspondence related to this request for comments.

FOR FURTHER INFORMATION CONTACT: Cecelia Davis, 202-219-0202.

SUPPLEMENTAL INFORMATION: The selection procedures currently prescribed by the FAR for the acquisition of mapping vary depending on the nature of the mapping service. Paragraph (a)(4) of FAR 36.601-4, Implementation, states, "Mapping associated with the research, planning, development, design, construction, or alteration of real property is considered to be an architectural and engineering service and is to be procured pursuant to [FAR] section 36.601 [Policy]. However, mapping services that are not connected to traditionally understood or accepted architectural and engineering activities, are not incidental to such architectural and engineering activities or have not in themselves traditionally been considered architectural and engineering services shall be procured pursuant to provisions in [FAR] Parts 13 [Simplified Acquisition Procedures], 14 [Sealed Bidding], and 15 [Contracting by Negotiation]."

FAR 36.601 implements the Brooks Architect-Engineers Act (Public Law 92-582), which requires that contracts for architect-engineering 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 Parts 13, 14, and 15. 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, FAR 36.601-4(a)(4) contained the following sentence: "However, mapping services such as those typically performed by the National Imagery and Mapping Agency [NIMA] 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 of the application of the Brooks Act.

The FAR Council does 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 has decided to seek public comments on the mapping policies in FAR 36.601-4(a)(4) so it may review the effectiveness of current policy in selecting quality firms to perform mapping services and consider if a FAR change should be pursued.

Commenters are encouraged to discuss advantages and drawbacks of the current regulatory coverage in FAR 36.601-4(a)(4) as it pertains to the acquisition of mapping, and to suggest alternative new provisions, if any, that they believe would be more appropriate. Any suggested FAR revisions should be accompanied by a rationale that explains the potential benefit of the revision for customers and taxpayers.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2004 by Panoptic Enterprises. All Rights Reserved.

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