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.
“Ask 10 A&E firms to bid on the design of a particular facility and many agencies will take the easy way out and select the low bidder. Under such circumstances, we may end up with a technically capable architect or engineer, but one who, for lack of experience or because of a desire to stay within his bid reduces the time spent on field surveys or in the preparation of detailed drawings, or in providing inspection services. As a result, the government may have saved itself a half of one percent to the cost of construction, operation, or maintenance,” said Senator Jennings Randolph (D-WV) on the Senate floor during the 1972 debate on the legislation that became the Brooks Act.
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 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.
Written by John M. Palatiello, john@mwcapitol.com
This is a shortened version.
