Celebrating the 50th Anniversary of the Brooks Act!
50 years ago on October 27, 1972, President Nixon signed into law legislation providing for qualifications-based selection (QBS) of architecture, engineering, (A&E) and related services, including surveying and mapping. At the time of its enactment, the Brooks Act was a radical departure from the norm of lowest bid in Federal procurement. It set a precedent that enabled qualitative factors to become commonplace in various contemporary acquisition procedures. In other words, A&E was for past performance and best value before it was cool.
Enacted by Public Law 92-582, the Brooks Act was named for its author, then-Representative Jack Brooks (D-TX). Although agencies had used qualifications as an evaluation and selection factor, followed by negotiation of a fee that is “fair and reasonable to the government” for A&E services for more than a century, the legislation was necessary to codify the practice. The “qualifications-based selection” or “QBS” process is codified for Federal agencies in title 40 of the United States Code, section 1101 and implemented in the Federal Acquisition Regulation (FAR) at 48 CFR 36.6. Passed on a bipartisan basis and supported by lawmakers in both parties over the ensuing 50 years, the process is also recommended by the American Bar Association in its Model Procurement Code for State and Local Government, and has subsequently been adopted by almost every state in a “mini-Brooks Act”.
The law emphasizes an investment in quality and competence 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 and program activities.
The 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.
The Brooks Act saves money. There is no evidence that selecting architects, engineers, surveyors, or mapping professionals on the basis of qualifications, competence, experience, and past performance results in higher costs. Indeed, given that such services amount to less than 1/10th of 1% 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 show 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”.
The Brooks Act is a law that has worked for 50 years. It contributes to the public health, safety, and welfare, as well as is part of what makes the United States the envy of the world.