Management for Private Photogrammetric v. U.S.

• Decision Date: 14 June 2007
• Docket Number: Civil Action No. 1:06cv378.
• Citation: 492 F.Supp.2d 540
• Parties: MANAGEMENT ASSOCIATION FOR PRIVATE PHOTOGRAMMETRIC SURVEYORS, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

492 F.Supp.2d 540

MANAGEMENT ASSOCIATION FOR PRIVATE PHOTOGRAMMETRIC SURVEYORS, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civil Action No. 1:06cv378.

United States District Court, E.D. Virginia, Alexandria Division.

June 14, 2007.

Daniel Henry Marti, Stephen Eric Baskin, Kilpatrick Stockton LLP, Washington, DC, for Plaintiffs.

Lauren A. Wetzler, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Plaintiffs in this APA¹ and declaratory judgment² action challenge as arbitrary and capricious the federal government's failure to initiate a new rulemaking and promulgate a new regulation in response to an amendment to the Brooks Act governing federal procurement of certain architectural and engineering (A-E) services.³ The government's attack on plaintiffs' standing to mount this APA challenge could not be definitively resolved at the threshold, owing to an anemic record and the generous construction afforded complaints at the motion to dismiss stage.⁴ Now, on a more complete record, standing must be finally addressed and resolved before the merits may be engaged.

For the reasons stated herein, the government is entitled to summary judgment, as plaintiffs lack the requisite standing to maintain this action.

I.⁵

At issue on cross motions for summary judgment are both plaintiffs' standing to bring this challenge and the merits of the challenge itself. The essentially undisputed facts relating to standing and the merits are set forth here. The first subsection describes the statutory and regulatory history; the next subsection describes the evidence submitted in support of standing, and the final subsection briefly reviews the procedural history.

A. Statutory and Regulatory History

The Brooks Act, enacted in 1972, governs the federal government's method of selecting contractors to provide A-E services. See 40 U.S.C. 1101-04. Under the Act, federal agencies must "negotiate contracts for architectural and engineering services on the basis of demonstrated competence and qualification for the type of professional services required and at a fair and reasonable price." 40 U.S.C. § 1101. In other words, the Brooks Act does not allow federal agencies to award A-E contracts on the familiar lowest-bidder basis, but rather mandates a procedure for procuring these services, known as qualification-based selection (QBS), in which agencies (i) solicit statements of qualifications from licensed A-E service providers, (ii) select the most qualified respondent, and then (iii) attempt to negotiate a fair and reasonable price with the contractor. See 40 U.S.C. § 1103-04. Thus, whether a service must be procured via QBS depends on whether it is an "architectural and engineering service" within the meaning of the Brooks Act.

The original 1972 Brooks Act language defining A-E services stated that

the term "architectural and engineering services" includes those professional services of an architectural or engineering nature as well as incidental services that members of those professions and those in their employ may logically or justifiably perform.

40 U.S.C. § 541 (1972); see also Pith.L. No. 92-582, § 901(3), 86 Stat. 1278 (1972). Legislative history indicates that Congress understood the Act to focus on obtaining A-E services "in carrying out federal construction and related programs." S. Rep. 92-1219 (1972), reprinted in 1972 U.S.C.C.A.N. 4767. In other words, the enacting Congress' understanding of the Brooks Act was that it addressed the procurement of A-E services in connection with federal government construction projects. See, e.g., id. at 4772 (noting that "costs for [A-E services] in the construction of a structure ... represent a very small part of the total cost of construction, yet those services are basic and essential to the quality of the construction. ...").

The statutory definition of A-E services remained unchanged for sixteen years. Then, in 1988, the Act was amended to define A-E services, in pertinent part, as follows:

(A) professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide the services described in this paragraph; ...

(C) other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professional (and individuals in their employ) may logically or justifiably perform, including ... surveying and mapping....

40 U.S.C. § 1102(2). It is the scope and content of this language and the regulatory response to it that is at the heart of the parties' dispute in this case. Plaintiffs contend that a new regulation must be promulgated that is consistent with the 1988 amendment and hence would require all mapping contracts to be procured solely via QBS. Defendant responds that the current regulatory regime, which allows some mapping contracts to be procured via non-QBS procedures, is fully consistent with the 1988 amendment.

Nothing in the legislative history of the 1988 amendment suggests that the phrase "surveying and mapping" was intended to broaden the Brooks Act's focus from construction on federal lands to the procurement of mapping services unrelated to construction on real property. See 134 Cong. Rec. H10606-03 (daily ed. Oct. 20, 1988); 1988 WL 178065. Indeed, notwithstanding the apparent breadth of the term "mapping," the legislative history confirms that the Brooks Act amendment was not intended to expand the range of services required to be performed by QBS. Id. Instead, the amendment's drafters noted that QBS need not be used to procure, for example, mappings services of the sort typically procured by the Defense Mapping Agency, as those maps are unrelated to traditional A-E services. Id. It is also worth noting that the record unambiguously reflects that the provision of "mapping" services in the modern marketplace includes a much broader scope of work than the traditional mapping work of land surveyors. See Affidavit of Douglas Richardson, filed as Exhibit A to Brief Amicus Curiae of Association of American Geographers et al.

Following the passage of the 1988 amendment, the FAR Council — the administrative body⁶ charged with administering and overseeing the application of the Federal Acquisition Regulation, 48 C.F.R. § 1.000 et seq. — undertook in 1991 to clarify by regulation precisely what was included in A-E services. The first three subsections of the regulation — found at 48 C.F.R. § 36.601-4(a)(1)-(4) — essentially parallel the statutory language and have remained substantially unchanged since the rule was first promulgated in 1991. Yet subsection (a)(4), which provides additional guidance about when "surveying and mapping" must be procured using QBS, has changed twice. The original language of subsection (a)(4) was drawn nearly word for word from a colloquy between Rep. Brooks, author of the Brooks Act and its 1988 amendments, and another Representative during debate on the 1988 amendments. See 134 Cong. Rec. H10606-03 (daily ed. Oct. 20, 1988), 1988 WL 178065. Thus, the original version of subsection (a)(4) read as follows:

Surveying is considered to be an architectural and engineering service and shall be procured pursuant to 36.601 from registered surveyors or architects and engineers. Mapping associated with the research, planning, development, design, construction, or alteration of real property is considered to be an architectural and engineering service and is to be procured pursuant to 36.601. However, mapping services, such as those procured by the Defense Mapping Agency, that are not connected to traditionally understood or accepted architectural and engineering activities, are not incidental to such architectural and engineering activities or have not in themselves traditionally been considered architectural and engineering services shall be procured pursuant to provisions in parts 13, 14, and 15.

48 C.F.R. § 36.601-4(a)(4) (1991).

The first change to the regulation occurred in 1998, when the FAR Council substituted "National Imagery and Mapping Agency" (NIMA) for "Defense Mapping Agency" to reflect the agency's name change. The second revision occurred in 1999, when the reference to NIMA was removed as an example of the type of mapping services that need not be procured via QBS. The current provision, as promulgated in 1999, provides in pertinent part as follows:

(a) Contracting officers should consider the following services to be "architect-engineer services" subject to the procedures of this subpart:

(1) Professional services of an architectural or engineering nature, as defined by applicable state law, which the state law requires to be performed by a registered architect or engineer ...

(4) Professional surveying and mapping services on [sic] an architectural or engineering nature. [Surveying is always considered an A-E service.] Mapping associated with the research, planning," development, design construction, or alteration of real property is considered to be an architectural and engineering service and is to be procured pursuant to 36.601. However, mapping services that are not connected to traditionally understood or accepted architectural and engineering activities, are not incidental to such architectural and engineering activities or have not in themselves traditionally been considered architectural and engineering services shall be procured pursuant to provisions in parts 13, 14, and 15.

48 C.F.R. § 36.601-4 (1999). This change was precipitated by a defense appropriations bill providing that none of the appropriated funds for 1999 could be used by NIMA for mapping contracts unless such contracts were procured via QBS. See Pub.L. 105-262 § 8101, 112 Stat. 2279, 2320 (1998). While the appropriations bill itself only affected money spent in 1999,...