IIBEC Takes Lead on Brooks Act and Reverse Auctions Wins
On Monday, December 21, 2020, when the United States Congress passed its year-end omnibus spending bill, two of IIBEC’s key legislative priorities were included in the final bill. A week later, the president signed the legislation, and they became law. As a result, the General Services Administration (GSA) will no longer be able to disregard the Brooks Act when procuring design services, and the federal government will no longer be able to use reverse auctions to acquire design and construction services.
“In an unprecedented year, it’s great to see the hard work of IIBEC members result in the passage of these two measures,” said Brian Pallasch, CEO/EVP of IIBEC. “We’d like to thank Congressman David Price, Senator Rob Portman, and Congresswoman Carolyn Maloney for working with IIBEC all the way to the end of the congressional session to get these important provisions across the finish line.”
The Brooks Act:
Qualifications-Based Selection of Design Professionals
In recent years, Congressman David Price (D-NC) has supported several IIBEC initiatives aimed at addressing procurement issues within the GSA regarding design services, but the GSA has not moved quickly to address the problems. As a result, IIBEC worked with Congressman Price to craft more specific language to address the issues regarding procurement at the GSA.
The Brooks Act (Public Law 92-582), in place since 1972, establishes the federal government’s procurement policy by which architects and engineers (A/E) are selected for design contracts with federal design and construction agencies.
This year, IIBEC worked with Congressman Price to add stronger legislative language to ensure that the GSA follows existing law. Representative Price’s language as passed requires the GSA to come into compliance with the Brooks Act. It reads:
Brooks Act. – GSA is directed to not award or facilitate the award of any contract for the provision of architectural, engineering, and related services in a manner inconsistent with the procedures in the Brooks Act (40 U.S.C. 1101 et seq.) and part 36.6 of the Federal Acquisition Regulation.
Choosing the most qualified people and firms to perform architecture, engineering, and construction (AEC) work is a key component in the ultimate success of a publicly funded construction project. A well-qualified AEC, selected through the qualifications-based selection (QBS) process, is more prone to create high-quality, best-value construction project documents that encourage fair and open bidding amongst contractors, subcontractors, suppliers, and manufacturers.
It is key for any government procurement system to be fair, transparent, and open to competition by qualified companies.
In 2020, IIBEC took the lead on a public policy priority supported by the greater construction industry coalition in Washington, DC. IIBEC worked with several industry associations to pass legislation that prohibits reverse auctions for design and construction services.
In 2019, IIBEC’s leadership team met in Washington with Senator Rob Portman’s (R-OH) staff to express IIBEC’s support for the Construction Consensus Procurement Improvement Act of 2019 which he cosponsored in bipartisan fashion with Senator Mazie Hirono (D-HI). The act prohibits federal agencies from purchasing design or construction services using reverse auctions. The Portman-Hirono bill passed the Senate in December 2019.
Unlike a traditional auction where a buyer with the highest bid wins the right to purchase a good or service, in a reverse auction a buyer seeking a good or service solicits bids, multiple sellers offer bids, and the seller with the lowest bid wins the competition. The practice of reverse auctions in construction and design procurement is ineffective public policy. It fails to properly allocate risk, makes it more difficult for small and disadvantaged businesses to be awarded a bid, and inhibits the competitive bidding process.
In early 2020, IIBEC persuaded United States Representatives Ro Khanna (D-CA) and Mark Meadows (R-NC) to introduce the Portman-Hirono bill in the House. It was designated H.R. 5644. At the same time, IIBEC worked with a construction industry coalition in support of passing the bill before the end of 2020. The coalition included IIBEC, the American Subcontractors Association (ASA), the Sheet Metal Contractors National Association (SMACNA), and Associated General Contractors (AGC), along with ten other construction-related industry associations.
As Congress was winding down for the year, IIBEC and the construction industry coalition worked with Senator Portman, Congresswoman Maloney (D-NY), Congressman James Comer (R-KY), and Senator Hirono to ensure the Construction Consensus Procurement Improvement Act was included in the omnibus legislation – the last bill of the 116th Congress.
The omnibus bill included:
Construction Consensus Procurement Improvement Act of 2020 – the prohibition on use of a reverse auction for the award of a contract for design and construction services.
“This is a huge step forward in IIBEC’s advocacy efforts, and these changes to federal law will be a great benefit to IIBEC members and the larger design and construction industry,” said Scott Hinesley, RRC, PE, IIBEC president. This demonstrates how a focused legislative effort can lead to success even during this disjointed year.”