November/December 2018

PE Report
Guam PEs Respond to QBS Challenge

The Guam Society of Professional Engineers is defending the use of qualifications-based selection for design services in response to a legal opinion that the prohibition of competitive bidding by the engineering licensing board is unenforceable.

The Office of the Attorney General issued a directive in May following a request for legal guidance from the Guam Board of Registration for Professional Engineers, Architects, and Land Surveyors on its rules of professional conduct. The licensing board’s rules of professional conduct state that design professionals should seek employment based on qualifications and competence and that the design professional shouldn’t solicit or submit proposals for professional services on the basis of competitive bidding contrary to the law. The request was made after the board was notified by a licensee that a client requested fees for a competitive-bidding process, and the licensee wanted to know how to address the issue with the client. Another licensee notified the board that a project request for proposal prepared by the Department of Public Works contained instructions to bidders to submit fees for engineering and architectural designs.

The Office of the Attorney General’s opinion stated that the board’s “blank prohibition in its Code of Ethics on competitive bidding does, indeed, violate the Sherman Act and is therefore unenforceable on its face.” The attorney general justified its opinion based on a 1978 Supreme Court case ruling that rejected NSPE’s ban on competitive bidding because it violates the Sherman Act and operates as an absolute ban that impedes the ordinary give and take of the marketplace.

GSPE responded to the attorney general’s opinion with a letter to the board to clarify the Supreme Court decision and correct misunderstandings of the ruling and the use of qualifications-based selection over competitive bidding.

The letter outlined details of an NSPE Executive Committee statement emphasizing that the Sherman Act doesn’t require competitive bidding and noted that the court decision clarified the following: (1) Engineers and firms may individually refuse to bid for engineering services; (2) Clients are not required to seek bids for engineering services; (3) Federal, state, and local laws governing procedures to procure engineering services are not affected and remain in full force and effect; (4) State societies and local chapters are free to actively and aggressively seek legislation for professional selection and negotiation procedures by public agencies; (5) State registration board rules of professional conduct, including rules prohibiting competitive bidding for engineering services, are not affected and remain in full force and effect; and (6) Nothing in the judgment prevents NSPE and its members from attempting to influence governmental action.

NSPE believes qualified professional engineers, based on design ability, experience, and integrity, should perform all engineering services. The Society supports the procurement of design professional services based on qualifications and strongly supports the Brooks A/E Act of 1972, which requires federal agencies to use qualifications-based selection procedures when obtaining design professional services. NSPE also supports the adoption of “mini-Brooks” laws at the state and local level.

According to NSPE Position Statement No. 08-131 on the procurement of engineering services, the qualifications-based selection procedure should address specialized knowledge and skill, experience in the type of project involved, assignment of qualified personnel, ability of the engineers to perform on a timely basis, recognition of the importance of total cost of the project within budgetary limitations, and such other areas of expertise as may be identified by the owner for prime consultant services, or the prime consultant for the subconsultant services.

Learn more about NSPE’s action on qualifications-based selection of engineering services and other issues.