04-6418. Federal Acquisition Regulation; Application of the Brooks Act to Mapping Services

AGENCIES:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Request for comments.

SUMMARY:

The Federal Acquisition Regulatory Council (FAR Council) is considering whether guidance in the Federal Acquisition Regulation (FAR) addressing the application of the Brooks Act to mapping services should be amended. The FAR currently requires application of the Brooks Act's qualifications based selection process to certain types of mapping services while precluding application in other instances. The FAR Council requests that interested parties provide comments.

DATES:

Interested parties should submit comments in writing to the FAR Secretariat at the address shown below on or before May 24, 2004.

ADDRESSES:

Submit written comments to— General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.

Submit electronic comments via the Internet to—[e-mail].

Please submit comments only and cite “mapping notice” in all correspondence related to this case.

FOR FURTHER INFORMATION CONTACT:

The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, at [phone] for information pertaining to status or publication schedules. The TTY Federal Relay Number for further information is 1-800-877-8973. For clarification of content, contact Ms. Cecelia Davis, Procurement Analyst, at [phone]. Please cite “mapping notice.”

SUPPLEMENTARY INFORMATION:

Background

The selection procedures currently prescribed by the FAR for the acquisition of mapping vary depending on the nature of the mapping service. In particular, FAR 36.601-4(a)(4) states that mapping associated with the research, planning, development, design, construction, or alteration of real property is considered to be an architectural and engineering (A&E) service and must be procured using the processes at FAR 36.601, which implements Public Law 92-582, as amended, also known as the “Brooks Architect-Engineers Act.” Under the Act, which is codified in chapter 11 of title 40 of the United States Code, contracts are negotiated based on the demonstrated competence and qualifications of prospective contractors to perform the services at a fair and reasonable price.

FAR 36.601-4(a)(4) further states that mapping services that are not connected to traditionally understood or accepted A&E activities are not incidental to such A&E activities or have not, in themselves, traditionally been considered A&E services, shall be procured pursuant to provisions in FAR parts 13, 14, and 15. These FAR parts, used for the procurement of most goods and services, allow agencies to employ sealed bids or competitive negotiations (using streamlined procedures in certain instances) through either the consideration of only price or cost or both price/cost and non-cost factors, including the tradeoff of cost and non-cost factors.

The policy set forth in FAR 36.601-4(a)(4) for the handling of mapping services has been in effect since 1991. This policy is based, in large part, on the 1988 statutory changes to the Brooks Act.

FAR 36.601-4(a)(4) was most recently modified in 1999 to implement section 8101 of the Department of Defense Appropriations Act, 1999 (Public Law 105-262). Section 8101 stated that the National Imagery and Mapping Agency (NIMA), with limited exception, must use the procedures in FAR subpart 36.6 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. The FAR coverage in effect at the time section 8101 was enacted made specific reference to NIMA as exemplifying the type of mapping services that must not be procured pursuant to FAR subpart 36.6. Consistent with section 8101, the Civilian Agency Acquisition Council (CAAC) and the Defense Acquisition Regulations Council (DARC) amended FAR 36.601-4(a)(4) to remove the reference to NIMA. See FAR case 98-023; Item V (64 FR 32746, June 17, 1999). Because the FAR rule only removed the reference to NIMA, as an example, and did not change the FAR policies relating to application of the Brooks Act to mapping, the CAAC and DARC determined that the rule did not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98-577 and, therefore, publication for public comment was not required prior to issuing a final rule.

After the amendment to FAR 36.601-4(a)(4) was published in the Federal Register, the Office of Federal Procurement Policy received a series of letters from interested parties. In particular, some mapping industry representatives stated that the revision created confusion for the Federal procurement community. They considered the rule to be a major narrowing of the application of the Brooks Act.

At least one commenter stated that Congress intended to apply the Brooks Act to a wide scope of mapping services and cited to House Report 105-746, which called upon the FAR drafters to:

* * * define “Surveying and mapping” [subject to Brooks Act's qualifications based selection process] in such a manner as to include contracts and subcontracts for services for Federal agencies for collecting, storing, retrieving, or disseminating graphical or digital data depicting natural or man made physical features, phenomena and boundaries of the earth and any information related thereto including but not limited to surveys, maps, charts, remote sensing data and images and aerial photographic services.

The commenter requested that FAR 36.601-4(a)(4) be amended to apply the Brooks Act to a broader range of mapping services. At a minimum, the commenter asked that the public be given an opportunity to comment on the issue.

The FAR Council does not consider the removal of the reference to NIMA in the 1999 FAR amendments 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 comment on the mapping policies articulated in FAR 36.601-4(a)(4) so it, the CAAC, and the DARC may review the effectiveness of current policy in selecting quality firms to perform mapping services and consider if a FAR change should be pursued.

Accordingly, respondents 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 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.

Dated: March 17, 2004.

Ralph de Stefano,

Acting Director, Acquisition Policy Division.