The Brooks Act and Public Procurement: What to Know


The Brooks Act and Public Procurement: What to Know

Government agencies and authorities going out to bid for architectural and engineering (“A/E”) contracts involving federal funds are required to follow the qualifications-based selection process outlined in the Brooks Act.

The Brooks Act, passed in 1972, establishes the processes by which architects and engineers are selected for federal design and construction projects. The Act outlines a qualifications-based selection process, emphasizing competence and expertise and excluding price as an evaluation factor.

This means that A/E firms bidding on a contract must follow a two-step selection process: demonstration, then negotiation.

First, the firm must demonstrate that it is the most qualified to complete the project. Negotiations are conducted with the most qualified firm only: and if an agreement cannot be reached as to a fair and reasonable price, negotiations are terminated and the selection committee moves to the next-most-qualified candidate.

The types of services that must be procured according to the Brooks Act are defined in 49 U.S.C. Section 5325(b) as “program managemet, construction management, feasibility studies, preliminary engineering, design, architectural, engineering, surveying, mapping and related services.”

Other services may be covered by the Brooks Act, if they are:

  • Professional services requiring a license or certification
  • Professional services associated with the research, planning, development, design, construction, alteration or repair of real property
  • Other professional services which A/E employees may logically perform including studies, investigations, surveying and mapping, planning and consultation, conceptual designs, etc.

These additional services are defined in a three-part test in 40 U.S.C. 1102.

Qualifications-based selection (QBS) applies to all contracts that fall under the Brooks Act, regardless of the dollar value of the project in question. The only consideration that may circumvent application of the Brooks Act to a qualifying contract is if the grantee’s state has adopted formal procedures for A/E services. In that case, the state’s procedures will apply.

To determine if your state has a QBS regulation, the National Society of Professional Engineers has a listing of regulations by state.

Because the Brooks Act may affect the already-complicated process of public contracts procurement, it may be best to seek the assistance of a qualified partner to help your firm make the best possible presentation to a selection committee.

To learn more about the Brooks Act, or for guidance on public procurement contract submission, do not hesitate to contact The Brown Law Firm today via email – or phone (617) 489-0817. We have over 9 years’ experience advising government agencies and businesses on public procurement.

Boston Bar Assosiation