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December 14, 2011 - ASCE Letter - FEMA's practice of Sidestepping the Brooks Architect - Engineers Act

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December 14, 2010

W. Craig Fugate Jr.
Federal Emergency Management Agency
Federal Center Plaza
Room 828
500 C Street, S.W.
Washington, D.C. 20472

RE: OIG-11-02

Dear Mr. Administrator:

On behalf of the more than 140,000 members of the American Society of Civil engineers (ASCE) I am writing to express our deep concern with the results of the audit by the Office of Inspector General on the management of FEMA’s public assistance-technical assistance (PA-TA) contracts.

Specifically, ASCE is disturbed by the report’s conclusion that FEMA may not be adhering to the qualifications-based selection (QBS) procedures under the Brooks Architect-Engineers Act, 40 U.S.C. §§ 1101-1104, when awarding task orders for engineering services. The report, “Improvements Needed in FEMA’s Management of Public Assistance-Technical Assistance Contracts,” concludes that the agency “awarded task orders based primarily on an equal distribution of dollars among the three contractors, rather than on expertise.”

ASCE believes that the selection of Professional Engineers as prime consultants and subcontractors should be based on the qualifications of the engineer and the engineering firm. Qualifications, including education, training, experience, past-performance, capabilities, personnel and workloads, should be evaluated when selecting a Professional Engineer. 

Cost of engineering services, while important and meriting careful negotiations, is related to work to be performed which often is not clearly defined at the time the engineer is selected. Selecting consultants based on cost is not recommended. Accordingly, ASCE supports qualifications-based selection (QBS) procedures such as those specified by the Brooks Architect-Engineers Act, 46 state mini-Brooks Acts, and the American Bar Association's Model Procurement Code for State and Local Governments for the engagement of engineering services. ASCE recommends that the application of these procedures to the development of a scope of work and the selection, procurement and administration of contracts for engineering services be the responsibility of technically qualified staff of the project owner.

Often an owner may believe that the pivotal issue in the selection of a professional engineer is the cost of the necessary services. Also, an owner may perceive that accepting the low price to perform the work produces the project with the lowest total cost. In this case, the owner is of the belief that the required engineering services are completely described and the qualifications of all engineers are equal. ASCE believes that it is impossible to completely describe the required scope of engineering services in this manner. When construction, operations, and maintenance are considered, the lowest cost engineering services will generally not produce the lowest total project costs. Further, ASCE believes that the owner should have an established policy for designating individuals to serve on the selection committee. The selection committee should contain at least one Professional Engineer and others who are familiar with the project requirements.

The QBS procedure is characterized by three basic steps: (1) the owner selects the professional engineer believed best qualified to perform the required work without considering fee; (2) the owner and the selected professional engineer confer to determine and/or review the scope of work, including contract scheduling; and (3) a fee for engineering services is negotiated based upon the mutually developed scope of work. Thus, cost is addressed at the appropriate time after the scope of services has been fully defined. Pre-contract communication between the owner and engineer to jointly develop a scope of work, as called for in step 2, is critical to the success of the project and ensures a mutual understanding of the owner's expectations for the work and the specific services the engineer will provide.

A poorly defined scope of services can result in numerous change orders. Lacking specifics, each firm may be compelled to, in order to be competitive, submit a price for the least amount of work reasonably envisioned. Detailed analysis of the problem and the search for innovative and sustainable solutions, or even the comparison of the obvious alternatives is precluded. This approach is likely to result in minimal engineering work that will not properly evaluate the overall cost of construction, operation, and maintenance of the project.

QBS procedures are most effective when administered by those who best understand the unique nature of the service being sought. The procurer’s experience with engineering organizations and proposed services, coupled with appropriate training in procurement matters, provides the required knowledge, thereby enhancing the efficiency of the civil works process.

Thank you for your attention to this important matter. Please contact me at 202-789-7842 or at if you have any questions.

Sincerely yours,

Brian T. Pallasch
Managing Director
Government Relations and Infrastructure Initiatives