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May 11, 2010 - ASCE Statement - Safe Drinking Water Act State Revolving Loan Fund (SRF) program

Strengthening Public Safety in the
Assistance, Quality, and Affordability Act of 2010

May 11, 2010


TO: The Hon. Henry Waxman, Chairman
House Committee on Energy and Commerce
The Hon. Edward Markey, Chairman
Subcommittee on Energy and Environment

FROM: The American Society of Civil Engineers

RE: Strengthening Public Safety in the
Assistance, Quality, and Affordability Act of 2010

I. Introduction

The American Society of Civil Engineers1 (ASCE) supports the goals and funding authorizations for critical infrastructure in the Assistance, Quality, and Affordability Act (AQAA) of 2010. The bill would provide $14.7 billion in new funding for the Safe Drinking Water Act State Revolving Loan Fund (SRF) program over five years. It also would authorize $100 million over five years for technical assistance to small community water systems to ensure that they can comply with federal primary drinking-water standards. In addition, the bill would authorize $25 million to identify endocrinedisrupting substances in drinking-water, and it would seek to reduce the amount of lead in drinking-water.

Each of these legislative proposals is vital to the general public health, safety and welfare, and ASCE is pleased to support their passage into law. We believe, however, that the bill could provide even greater protection for public safety through the wider use of the qualifications-based selection (QBS) process for the awarding of architectural and engineering design contracts funded by the state SRFs.

II. Qualifications-Based Selection (QBS) for A/E Contracts Should Be Broadened to Protect Public Safety

Section 11 of the bill, Negotiation of Contracts, would require that contracts carried out using federal funds provided through the SRF program be negotiated in keeping with federal qualifications-based selection (QBS) requirements under the Brooks-Architect Engineers Act of 1972, or equivalent state or local requirements. This section, however, applies only to communities of 10,000 or more people. Finally, the section leaves discretion to the states to determine what state or local requirements are equivalent.

ASCE believes this provision needs to be broadened to require the application of QBS for all contracts funded through state SRFs to ensure that public safety is not compromised. We concur with the provision that defers the choice of which state law to apply to the states, however.

Enacted by Congress in 1972 for all federal agency acquisitions, the qualifications-based selection (QBS) procedure assures the selection of the best qualified firm.2 This protects public safety in the long run by ensuring that those engineers most experienced in the design and construction of unique projects are professionally and ethically responsible to the public client.

One of the more important tasks associated with any construction project is the selection of a design professional to design the project. Many people assume that all design professionals are equally qualified for all types of projects; therefore hiring the one with the lowest price is the best approach. This is far from the truth. Procuring design services is not the same as procuring road salt or paper for the office copier.3

Engineering design contracts by highly qualified professional engineers are essential to the delivery of safe projects. The safety of critically important drinking-water facilities should not be compromised by the use of budget-driven contract procedures. The design of public water treatment facilities should not be dependent on a state’s reliance on optional contracting procedures that may place cost (in the form of a low-bid design contract) on a par with public safety. Lowest cost selection is the worst way to acquire professional services when quality and professional creativity are necessary for public works projects.

Under QBS, A/E firms compete based on their professional qualifications and quality of services, which allows large and small firms alike to compete on an equal footing. In other words, small firms are able to win contracts based exclusively on the quality of their services. Without QBS, larger firms would have a distinct advantage if competitive bidding were based solely on price. Indeed, we have been told by more than one executive of major engineering firms that the larger firms would be able to win many more federal contracts without the Brooks Architect-Engineers Act simply by underbidding their smaller competitors and making up the loss elsewhere on the contract.

QBS is the preferred system for selecting A/E services because the precise scope and range of the design services which are the basis for any contract price cannot be accurately determined until specific negotiations begin. Innovative approaches and alternative designs or methods arise when a client and a design professional develop the precise scope of a project together.

QBS requires A/E firms to compete based on skills, experience and ability to perform the required services—not on the illusory economy that a low bid may seem to provide. Low bids requiring substantial change orders or resulting in high construction or high life-cycle operating or maintenance costs are not cost effective.

This process has been so successful at the federal level that it is recommended by the American Bar Association in its model procurement code for state and local government. Forty-six states—including California and Massachusetts—have enacted formal qualifications-based selection laws for architecture, engineering, surveying and mapping services based on the federal model.4 Significantly, no state has a law requiring bidding of architectural or engineering design services.

III. Congress Has Repeatedly Broadened QBS Coverage to Other Government Engineering Services

The application of QBS to government acquisitions over the past 38 years has been an unqualified success. Indeed, since 1972 Congress has clarified and extended the application of the QBS process to the awarding of architectural and engineering services contracts for:

Aviation programs project grant application (49 U.S.C. § 47107)

Mass transportation contract requirements, management and architectural engineering (49 U.S.C. § 5325).

Military construction projects (10 U.S.C. § 2855).

Engineering services as competitive procedures for procurement purposes (10 U.S.C. § 2302; 41 U.S.C. § 259).

River and harbor improvements (33 U.S.C. § 569b).

Surveying, mapping, charting and geodesy contracts of the National Imagery and Mapping Agency (NIMA).

Indeed, Congress has even tightened other laws to require stricter application of the QBS process. In November 2005, Congress enacted the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act, 2006. Section 174 of the Act amended federal law relating to the award of engineering and design services contracts that are directly related to a construction project and use federal- aid highway funding.

The amendment deleted a previous provision of law and required that these contracts to be awarded in the same manner as a contract for architectural and engineering services is negotiated under the federal QBS requirements. Under the new law, state and local agencies were no longer permitted to procure engineering and designrelated service contracts (directly relating to construction) with federal-aid highway funding using "alternative" or "equivalent" state QBS procedures that were permitted prior to the 2005 amendment.

Finally, Congress is considering legislation to reauthorize the Airport Improvement Program to expand the use of QBS to airport projects. H.R. 915, which passed the House a year ago, authorizes the Secretary of Transportation to approve an eligible agency's application for authority to impose a “passenger facility charge” to finance airside projects for airports, provided the agency gives satisfactory written assurances that each contract and subcontract for program or construction management, architectural, engineering, and related services is awarded in the same way a contract for architectural and engineering services is negotiated with respect to QBS requirements or an equivalent qualifications-based method prescribed for or by the agency.

IV. The Agency Retains Control of the Selection Process, Including the Schedule and Price Factors

The QBS process should never be burdensome or pose an obstacle to the speedy acquisition of the necessary professional design services.

To keep the process of selecting a design professional advancing smoothly, the owner establishes a time frame for completion of the selection process. Establishing the time frame communicates requirements with the firms and prevents misunderstandings and last minute “surprises” which may delay the process. The time frame for each public project differs, depending upon the nature of the project, the concerns of the owner and other factors. The suggested time frame for an average QBS project is a total of four to six weeks to allow proper planning and administration between each step of the selection process. Depending upon the status of the owner’s project, adjustments can be made to accommodate the owner’s needs.5

This is not a recent discovery. In 1985, the American Institute of Architects (AIA) analyzed procurement practices and laws in Maryland and Florida in the awarding of more than 1,200 architectural and engineering contracts. The study concluded that “the QBS selection method appears to result in about one-half the cost of selection and design and about one-half the administrative cost, while delivering projects in about three-fourths the time of the (apparently) price-dominated quality-and-price selection method.”6

V. Summary

The qualifications-based selection procedures of the Brooks-Architect Engineers Act result protect public safety by awarding design contracts for federally funded infrastructure projects to the most highly qualified architects and engineers.

Congress has repeatedly broadened QBS coverage to other government engineering services over the past 38 years. The Committee should expand the coverage of the QBS provisions in the AQAA to ensure the Safe Drinking Water Act is no less protective of public safety than other federal infrastructure laws.

Respectfully submitted,