December 09, 2013
NSPE TODAY: POLICY PERSPECTIVES
BY SARAH OGDEN
While state legislation and regulation have an indisputable impact on professional engineers, federal public policy also affects PEs. In fact, federal and state policy are rarely mutually exclusive; the federal government and states must work together (in parallel, if not collaboratively) to implement comprehensive, efficient public policy.
The clearest example of how federal and state public policy intertwines is qualifications-based selection, one of NSPE's core issues. According to NSPE's Professional Policy on the Procurement of Engineering Services, "all engineering services should be performed by qualified engineers on the basis of design ability, experience, integrity, and judgment." NSPE advocates QBS both individually and as part of the Council on the Federal Procurement of Architectural and Engineering Services (COFPAES), a coalition of A/E organizations.
The federal statute that protects QBS is the Brooks Act of 1972, which requires federal agencies to use QBS to procure architectural and engineering services. The Brooks Act is the keystone to state QBS statutes—it is the law on which state QBS laws are modeled. Without the Brooks Act, state QBS laws likely would not exist; and keeping the federal law strong is critical to the continued survival of the state laws. Over the past few years, anti-QBS legislation has popped up in states including Florida, Illinois, New Jersey, Texas, West Virginia, and Wisconsin, as governments look to cut costs, making maintaining a strong federal QBS law especially important.
NSPE is currently pursuing two federal issues related to QBS: First, the Federal Highway Administration and Federal Transit Administration are using QBS only for construction contracts due to an incomplete reading of the Brooks Act's definition of A/E services. This is a federal issue involving the U.S. Department of Transportation; however, it involves how state and local highway and transit contracts funded by the federal government are procured. NSPE commented on this issue at a March DOT meeting led by General Counsel Robert Rivkin and attended by a panel of the DOT components' general counsels and senior staff. NSPE is now collaborating with COFPAES on further action.
Second, the General Services Administration is offering A/E services on its Schedules Program, which allows federal agencies to purchase goods and services based on offerors' published pricelists—a violation of the Brooks Act. While this may sound like a red-tape issue, it's actually a serious problem for PEs. Professional engineers who respond to requests for services on the schedules would be violating some state licensure laws and the NSPE Code of Ethics. By not responding to requests for services on the schedules, however, PEs are missing significant opportunities for government work. This has been an ongoing issue for several years; and NSPE is continuing to collaborate with COFPAES to remove A/E services from the Schedules Program, develop an oversight and investigation process to ensure agencies are not purchasing A/E services through the Schedules Program, and enable contractors and members of the public to report attempted or completed purchases of A/E services through the Schedules Program.
Preventing erosion of the Brooks Act at the federal level is critical to protecting QBS at all levels of government. In addition to protecting QBS, NSPE will be working on a number of other federal issues in the coming year (see sidebar), all of which have state impact. While these issues initially will be decided on the Hill and in the agencies, the consequences will be wide-reaching—to the states and to professional engineers' front doors.
For more information on legislation NSPE is following, visit www.capwiz.com/nspe.
For more information on NSPE's positions statements and issue briefs, go to www.nspe.org/IssuesandAdvocacy and click on "TakeAction."
Questions? Want to send a letter to
the editor? Contact