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    The Brooks Act contains a broad definition of A/E services which states the general attitude of the design professions and federal clients as to basic A/E services. However, problems have been encountered when the agencies in some cases apply the A/E definition too narrowly; thereby, excluding the use of the Brooks Act for professional services which require A/E expertise outside of just the basic design of facilities. Accordingly, COFPAES has undertaken an effort to have adopted a more specific definition of A/E services.

    COFPAES supports and endorses the following definition of A/E design professional services as being in keeping with common industry usage:

    The term `architectural and engineering services' means:

    A. professional services of an architectural or engineering nature, as defined by State law, if applicable, which are required to be performed or approved by a person licensed, registered, or certified to provide such services as described in this paragraph;

    B. professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and

    C. such other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including: studies, investigations, surveying, mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services.

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    COFPAES opposes SBA’s proposed rule to raise the architectural, engineering and surveying and mapping small business engineering, architectural and surveying and mapping size standards to $7.5 million, $5.0 million and $3.5 million, respectively.

    The SBA should issue a new proposed rule that is based upon the North American Industry Classification System (NAICS) structure.

    The new proposal should be based on more accurate industry data. COFPAES recommends that the SBA establish a single A/E standard of $3.5 million for small businesses.

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    COFPAES supports authorizing legislation for the FAA that will increase funding for aviation infrastructure programs to ensure that taxpayers receive value based projects from the FAA.

    It is important that Congressional leaders ensure protection of the integrity of the Airport and Airways Trust Fund.

    The trust fund, collected from passenger taxes, fuel charges and other sources, was intended through the Federal Airport Improvement Program (AIP) to be returned to airport authorities to improve airport facilities. COFPAES strongly supports taking the trust fund "off budget" and designating it only for infrastructure directly related to airport facilities.

    Passenger Facility Charges (PFC) are most valuable to the larger hub airports, while the AIP is most valuable to smaller and mid-size airports. COFPAES supports reliance on both to support federal airport infrastructure financing.

    COFPAES urges the PFC to be subject to the principles of the procurement rules of the Federal Procurement Regulations with respect to procuring engineering services using QBS.

    COFPAES recommends that the FY99 FAA Reauthorization Bill include provisions to take the AIP trust fund off budget and consider an increase in the PFC to finance the infrastructure needs of the entire airport system.

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    In the early 1970's COFPAES undertook a major campaign to secure legislation which would establish a method of professional selection and negotiation for obtaining the services of A/E's for federal projects. Such legislation was enacted in 1972 and remains as the law applicable to federal agencies. P.L.. 92-582, is known as the Brooks Act, named after its primary author, Representative Jack Brooks, then Chairman of the House Committee on Government Operations, the law requires public announcement of requirements for A/E services, prescribes that federal agencies screen all interested firms for such services, select the best qualified firm, all factors considered, and enter into negotiations with the highest ranked firm for all aspects of an agreement, including compensation arrangements.


    COFPAES supports the qualifications-based selection process as enacted by P.L. 92-582 (commonly referred to as the Brooks Act) as the established and proven method of obtaining ME design professional services of the highest quality at reasonable costs, and will vigorously defend this procedure as necessary. The coalition also supports the extension of the qualifications-based selection process to all federally funded grant programs such as the highway, transit, airport, housing, environmental and other similar grant programs.

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    COFPAES has made a concentrated effort to create a system of set-asides in favor of "small" firms in tine with the mandate of Congress in that regard, but without imposing undue and unwise procedures which penalize qualified A/E design firms by disallowing their consideration under Brooks Act procedures.

    To deal with this problem in the area of military agency procurement, COFPAES supported enactment of provisions in the military agency procurement laws which require that design contracts with an estimated value of $85,000 or less, be limited to "small" firms, and that contracts with a higher amount be available to all firms, including "small" firms. This procedure has worked well and fairly for all concerned.

    With regard to civilian agencies, however, the problem remains confused under the so-called "rule of two", whereby all A/E design professional contracts may be reserved for "small" firms if it is determined that at least two "small" firms are qualified for the assignment. Congress enacted in 1987 a revised procedure for all agencies whereby each agency shall set-aside for small firms up to 30% of A/E design professional contracts. If the agency awards exceed 30% in one year, the size standard defining "small" shall be adjusted downward to bring the exclusive set-aside within the 30%.

    The dollar definition of "small" has been confusing and remains uncertain. COFPAES has worked, and will continue to work, in cooperation with the Small Business Administration toward achieving a dollar definition which will best serve the objectives outlined above.


    Ideally, there should not be any mandatory set-aside procedure for A/E design professional contracts; all firms should be considered solely on the basis of professional qualification for the particular project requirements. In recognition of the strong Congressional support for small business, however, COFPAES recognizes that some degree of preference for small firms may be necessary, and COFPAES will work closely with Congress to achieve an acceptable level of preference which will not be unfair to any firm and still permit the agencies to have the benefit of the services of the best qualified design firms.

    COFPAES objects to a set-aside procedure which has the effect of mandating that all A/E design professional contracts be awarded to "small" firms. The term "small" is not feasible or practical for A/E design professional services inasmuch as the vast majority of A/E design professional firms fall into the "small" category under any of the various proposed dollar definitions of that term.

    On the basis of the available statistics, COFPAES believes that in any event the small business size standard for A/E design professional services should not exceed $1 million, which would still represent a vast majority of firms.

    Adopted: 6/14/88

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    COFPAES believes the ABA Model Procurement Code has been an important vehicle for encouraging entities to use QBS procedures when procuring professional design services and supports its rewrite.

    COFPAES has appropriated $5,000 for donation to the ABA to support this rewrite effort.

    COFPAES believes that the procedures for selecting A/E design professionals and the administration of A/E design professional contracts, should be placed in the hands of qualified design professionals of the client agency.

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    When the Office of Federal Procurement Policy (OFPP) was first conceived, COFPAES and others endorsed and supported the creation of such a body to oversee the procurement policies of the federal government. Although COFPAES has not always agreed with OFPP or its decisions, it continues to believe that OFPP can play an important role in addressing the concerns raised by the private sector.

    COFPAES supported the creation of the Office of Federal Procurement Policy as a means to better coordinate procurement procedures and policies among the various federal agencies. COFPAES favors continuation of that office, but believes its charter should be enlarged to provide more authority to require agencies to follow established procurement policies of the government, including the authority to require agencies to adhere to the provisions of law governing the A/E design professional qualifications based selection process as well as supporting regulations and procedures established by OFPP.

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    COFPAES believes that any acceptable alternative project delivery process should contain certain basic elements:

    A registered design professional (either in-house or retained) should represent the government throughout the entire project. The design professional, if retained from the private sector, should be selected based on their qualifications and experience according to the requirements of the Brooks Act as amended.
    The design professional should prepare the project scope, description, function, standards, design criteria, analyses, reports and cost estimates for the proposed project. A sufficient level of detail should be produced to provide an adequate description of the project scope and level of quality expected by the government agency.
    The design-build team must include registered design professionals who are selected based on their qualifications and expertise.
    The selection of a design-build team should include two steps. Step one, evaluation of the teams, would be based on the qualifications and experience of the competing teams. Step two would include a detailed evaluation of the proposals from the short-listed teams. The selection of the top design-build team would be based on pre-determined criteria established for the specific project, such as technical expertise, past performance, management capabilities, design quality, approach, schedule and cost.
    Federal agencies should fully develop and disclose their overall procurement process and project decision making process, including any special contractual provisions, all totally integrated to allow participants to fully evaluate the costs, benefits, and risk aspects of their participation on individual projects. Those participants selected to submit a detailed proposal should receive a reasonable stipend for their submission. In addition, the selection process should be consistent throughout and applicable to all Federal agencies and departments.
    Adopted: 02/02/95

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    COFPAES believes that legislation similar to the Brooks Act, which applies only to federal A/E design professional contracts, should be enacted by each state for projects subject to state law. Toward that end, COFPAES works closely with the affiliated state organizations of its member societies. To date more than half of the states have adopted legislation along the lines of the Brooks Act. There are some variations in these state laws, hut in the main they follow the basic principles of the federal law.


    COFPAES will work closely with state organizations to enact state A/E design professional qualifications-based procurement laws and will provide, upon request, appropriate support to the state organizations as may be desired toward this end.

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    COFPAES is opposed to the use of "contract bundling" by federal agencies in attempting to circumvent the Brooks A/E Act.

    Contract bundling is most evident in contracts where the government consolidates two or more unrelated contract solicitations for supplies or services into a single solicitation. In such cases where A/E services are not the "dominant extent," the government typically uses competitive low-bid procedures.

    We believe that "dominant extent" language in the FAR has allowed the government to circumvent the requirements of the Brooks A/E Act, and is contrary to the original intent of the law.

    Contract bundling creates a strong bias toward very large firms or management consultant entities.

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