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May 13, 2009 - ASCE Letter - The Water Infrastructure Financing Act (S. 1005)

May 13, 2009

The Honorable Barbara Boxer                     The Honorable James Inhofe
Chairwoman                                              Ranking Member
Committee on the Environment                  Committee on the Environment 
    And Public Works                                        and Public Works
Washington, D.C. 20510                            Washington, D.C. 20510

RE: The Water Infrastructure Financing Act

Dear Madame Chairwoman:                        Dear Senator Inhofe:

On behalf of the more than 146,000 members of the American Society of Civil Engineers
(ASCE) I am writing to support enactment of S. 1005, the Water Infrastructure Financing Act.

S. 1005 would provide $35 billion over five years for critically needed improvements to
America’s aging wastewater treatment and drinking-water infrastructure through increased
funding under the Clean Water Act and Safe Drinking Water Act State Revolving Loan Fund
(SRF) programs. The bill also would authorize new funding to address the problem of combined
sewer overflows (CSOs) and runoff from agricultural land.

In January, ASCE released its 2009 Report Card for America’s Infrastructure that gave the
nation’s wastewater and drinking water treatment systems a grade of D–. We found that the
declining federal investment for these systems over the past 20 years and the increasingly
fragile condition of many systems contributed to their near-failing grades. S. 1005 would
address the most severe funding problems with vitally needed financial support for the SRFs.
We applaud your commitment to this essential public safety program.

ASCE, however, is strongly opposed to the provision in sections 107 and 208 of S. 1005 that
would allow communities of fewer than 10,000 persons to opt out of the requirements of the
Brooks Architect-Engineers Act of 1972, the law establishing the qualifications-based selection
(QBS) process for the awarding of architectural and engineering contracts, when awarding
design contracts for SRF-funded projects.

QBS requires competitive negotiations for contracts with the highest-qualified firms. This
ensures that the best engineering solutions emerge from the process, thereby protecting public
safety. The QBS negotiations mandate price discussions, and the client may choose not to
proceed if an engineering firm seeks a fee that exceeds the client’s ability to pay. So the public
client retains control over the taxpayer-funded price of the final contract. This is extremely
important. 

Moreover, QBS ensures that every firm or engineer who is qualified in a practice area may
participate in the negotiations for every contract in that area. On a practical level, this means
that small businesses can compete on an even footing with large firms. Without QBS, large
firms can discount the cost of the design to win the contract and make up the difference
elsewhere.

Most of the nation’s major infrastructure statutes, including the Federal Aid Highway Act, apply
the federal QBS requirements to A/E contracting by small communities receiving federal
financial assistance under grant programs similar to those established under the Clean Water
Act and Safe Drinking Water Act. ASCE is not aware that these requirements have imposed
onerous obligations on either those communities or the contracting process. Creating a
separate requirement for the use of QBS under the Clean Water Act would be inconsistent with
other federal statutes and would be based on no known difference in the imagined burden.

Finally, as a general matter, policy carve-outs are a bad idea. For one thing, a precedent
limiting the application of QBS to certain communities invites other political compromises that
may be difficult to challenge on principle. Some interests could seek carve-outs from other
federal laws on the grounds that they, too, are time-consuming or difficult. For example, we can
envision an amendment to a future bill attempting to restrict the "burdensome" application of the
Clean Water Act’s water-quality standards to communities of 10,000 or more in population
based on the new criterion expressed in sections 107 and 208 of the bill before you. This leads
to endless trouble.

We recommend that the provision limiting the use of QBS to communities of more than 10,000
people be stricken from the bill.

Thank you very much for your attention to our concerns. If ASCE can be of additional
assistance to the Committee, please do not hesitate to contact Brian Pallasch, Managing
Director of Government Relations and Infrastructure Initiatives, at 202-789-7842, or Michael
Charles, Senior Manager, Government Relations, at 202-789-7844.

Sincerely yours,

D. Wayne Klotz, P.E., D.WRE
President