[Federal Register Volume 69, Number 56 (Tuesday, March 23, 2004)]
[Proposed Rules]
[Pages 13499-13500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6418]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 36


Federal Acquisition Regulation; Application of the Brooks Act to 
Mapping Services

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Request for comments.

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SUMMARY: The Federal Acquisition Regulatory Council (FAR Council) is 
considering whether guidance in the Federal Acquisition Regulation 
(FAR) addressing the application of the Brooks Act to mapping services 
should be amended. The FAR currently requires application of the Brooks 
Act's qualifications based selection process to certain types of 
mapping services while precluding application in other instances. The 
FAR Council requests that interested parties provide comments.

DATES: Interested parties should submit comments in writing to the FAR 
Secretariat at the address shown below on or before May 24, 2004.

ADDRESSES: Submit written comments to-- General Services 
Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, 
ATTN: Laurie Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to--
[email protected].
    Please submit comments only and cite ``mapping notice'' in all 
correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. The TTY Federal Relay 
Number for further information is 1-800-877-8973. For clarification of 
content, contact Ms. Cecelia Davis, Procurement Analyst, at (202) 219-
0202. Please cite ``mapping notice.''

SUPPLEMENTARY INFORMATION:

Background

    The selection procedures currently prescribed by the FAR for the 
acquisition of mapping vary depending on the nature of the mapping 
service. In particular, FAR 36.601-4(a)(4) states that mapping 
associated with the research, planning, development, design, 
construction, or alteration of real property is considered to be an 
architectural and engineering (A&E) service and must be procured using 
the processes at FAR 36.601, which implements Public Law 92-582, as 
amended, also known as the ``Brooks Architect-Engineers Act.'' Under 
the Act, which is codified in chapter 11 of title 40 of the United 
States Code, contracts are negotiated based on the demonstrated 
competence and qualifications of prospective contractors to perform the 
services at a fair and reasonable price.
    FAR 36.601-4(a)(4) further states that mapping services that are 
not connected to traditionally understood or accepted A&E activities 
are not incidental to such A&E activities or have not, in themselves, 
traditionally been considered A&E services, shall be procured pursuant 
to provisions in FAR parts 13, 14, and 15. These FAR parts, used for 
the procurement of most goods and services, allow agencies to employ 
sealed bids or competitive negotiations (using streamlined procedures 
in certain instances) through either the consideration of only price or 
cost or both price/cost and non-cost factors, including the tradeoff of 
cost and non-cost factors.
    The policy set forth in FAR 36.601-4(a)(4) for the handling of 
mapping services has been in effect since 1991. This policy is based, 
in large part, on the 1988 statutory changes to the Brooks Act.
    FAR 36.601-4(a)(4) was most recently modified in 1999 to implement 
section 8101 of the Department of Defense Appropriations Act, 1999 
(Public Law 105-262). Section 8101 stated that the National Imagery and 
Mapping Agency (NIMA), with limited exception, must use the procedures 
in FAR subpart 36.6 when using fiscal year 1999 funds to award 
contracts for mapping, charting, and geodesy activities, rather than 
the provisions in FAR parts 13, 14, and 15. The FAR coverage in effect 
at the time section 8101 was enacted made specific reference to NIMA as 
exemplifying the type of mapping services that must not be procured 
pursuant to FAR subpart 36.6. Consistent with section 8101, the 
Civilian Agency Acquisition Council (CAAC) and the Defense Acquisition 
Regulations Council (DARC) amended FAR 36.601-4(a)(4) to remove the 
reference to NIMA. See FAR case 98-023; Item V (64 FR 32746, June 17, 
1999). Because the FAR rule only removed the reference to NIMA, as an 
example, and did not change the FAR policies relating to application of 
the Brooks Act to mapping, the CAAC and DARC determined that the rule 
did not constitute a significant FAR revision within the meaning of FAR 
1.501 and Public Law 98-577 and, therefore, publication for public 
comment was not required prior to issuing a final rule.
    After the amendment to FAR 36.601-4(a)(4) was published in the 
Federal Register, the Office of Federal Procurement Policy received a 
series of letters from interested parties. In particular, some mapping 
industry representatives stated that the revision created confusion for 
the Federal procurement community. They considered the rule to be a 
major narrowing of the application of the Brooks Act.
    At least one commenter stated that Congress intended to apply the 
Brooks Act to a wide scope of mapping services and cited to House 
Report 105-746, which called upon the FAR drafters to:

* * * define ``Surveying and mapping'' [subject to Brooks Act's 
qualifications based selection process] in such a manner as to 
include contracts and subcontracts for services for Federal agencies 
for collecting, storing, retrieving, or disseminating graphical or 
digital data depicting natural or man made physical features, 
phenomena and boundaries of the earth and any information related 
thereto including but not limited to surveys, maps, charts, remote 
sensing data and images and aerial photographic services.

The commenter requested that FAR 36.601-4(a)(4) be amended to apply the 
Brooks Act to a broader range of mapping services. At a minimum, the 
commenter asked that the public be given an opportunity to comment on 
the issue.
    The FAR Council does not consider the removal of the reference to 
NIMA in the 1999 FAR amendments to constitute a shift in longstanding 
policy regarding the application of the Brooks Act to mapping services. 
However, the FAR Council has decided to seek public comment on the 
mapping policies articulated in FAR 36.601-4(a)(4) so it, the CAAC, and 
the DARC may review the effectiveness of current policy in selecting 
quality firms to perform mapping services and consider if a FAR change 
should be pursued.
    Accordingly, respondents are encouraged to discuss advantages and 
drawbacks of the current regulatory coverage in FAR 36.601-4(a)(4) as 
it pertains to the acquisition of mapping

[[Page 13500]]

and suggest alternative new provisions, if any, that they believe would 
be more appropriate. Any suggested FAR revisions should be accompanied 
by a rationale that explains the potential benefit of the revision for 
customers and taxpayers.

    Dated: March 17, 2004.
Ralph de Stefano,
Acting Director, Acquisition Policy Division.
[FR Doc. 04-6418 Filed 3-22-04; 8:45 am]
BILLING CODE 6820-EP-P