Audit Finds FEMA Did Not Follow Brooks Act

Jan/Feb 2011

NSPE TODAY: POLICY PERSPECTIVES
Audit Finds FEMA Did Not Follow
Brooks Act

BY SARAH OGDEN

The Federal Emergency Management Agency has been failing to use qualifications-based selection to award contracts for architectural and engineering services despite a federal law that requires QBS, according to a recent audit.

In October, the Department of Homeland Security's Office of the Inspector General published an audit report critically entitled Improvements Needed in FEMA's Management of Public Assistance-Technical Assistance Contracts. The report faults FEMA for failing to follow the Brooks Act (PL 92-582), which requires federal agencies to use QBS to award contracts for A/E services. The audit found that FEMA instead awarded contracts primarily based on an equal distribution of dollars among three contractors.

The audit also found that FEMA did not establish performance standards for contractors, evaluate contractor performance, or provide contract managers with written guidance on training, evaluating contractor performance, or certifying billing invoices.

FEMA's failure to follow the Brooks Act appears to be the result of an incomplete understanding of the QBS process. FEMA did comply with the Brooks Act in 2006 when it awarded five-year, indefinite delivery, indefinite quantity contracts to the three most qualified firms that would provide assistance in the later disasters. When it came time to award task orders to those firms in 2008, however, FEMA based its awards on an equal distribution of dollars rather than selecting the most highly qualified firm to perform the services. The audit report suggests FEMA employees may have relied on a section of the Brooks Act that requires agencies to rank at least three of the most highly qualified firms and neglected the section of the law that requires them to negotiate price with the top-ranked firm.

FEMA's attorneys disagree that FEMA violated the Brooks Act, arguing that standard application of the law has been an issue across the federal government. FEMA's chief counsel is requesting an opinion on the application of the Brooks Act to individual task order awards from the Department of Justice.

If FEMA's violation of the Brooks Act was the result of confusion about the QBS process, continued outreach and education opportunities for the agencies may help. The Council on the Federal Procurement of Architectural and Engineering Services, of which NSPE is a founding member, recently sponsored a day-long QBS workshop, where Army Corps of Engineers Chief of Architect-Engineer Management Bruce Ware, P.E., taught the QBS process step by step. The workshop drew a sold-out crowd of agency representatives and private-sector practitioners.

FEMA has distributed $30 billion in disaster-recovery public assistance contracts over the last decade, but because of the agency's failure to award task orders based on qualifications, evaluate contractor performance, or certify billing invoices, it is difficult to tell how much value Americans have gotten for their money. There is more than money at stake, however. As licensed professionals who are ethically obligated to protect the public health and safety, professional engineers know the potential cost of hiring less qualified firms to perform engineering services in a disaster area. The most qualified contractor has the education, experience, and community knowledge to perform necessary services effectively. A less qualified contractor presents a risk to a community that already has experienced profound loss.

NSPE advocates the use of the Brooks Act and qualifications-based selection in the awarding of engineering services. Read NSPE's issue brief on qualifications-based selection at http://www.nspe.org/IssuesandAdvocacy/TakeAction/IssueBriefs/ib_qbs.html.
To read the Department of Homeland Security's audit report, visit
http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_11-02_Oct10.pdf.

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