Why the HELL l did I just tell that guy that I can’t give him a price on $25,000 to $30,000 worth of work? He said “are you kidding me?” “I know it sounds idiotic sir but that’s the law here in Alabama. Our Board of Licensure says it is illegal for an Engineer and/or Land Surveyor in the State of Alabama to bid work. We would be putting our license at jeopardy. “ WTH?
In Alabama the Board of Licensure (BOL) regulates the practice of land surveying and engineering. All states have a similar entity for that state. I’m not sure about the Qualification Based Selection (QBS) regulations in each one though, but I suspect at least some are similar.
The 1992 Brooks Act
I first heard of QBS in the early 90’s – 1992 to be exact. It was introduced as a procurement process by the US Congress as a part of the Brooks Act, Public Law 92-582, according to Wikipedia. This was to be used by the federal government in the selection of Architects and Engineers. Land Surveyors were identified under the Engineering field at the time. After that, many States adopted their own version of the Brooks Act for themselves.
Having recognized that the “lowest cost” is NOT the best way to obtain professional services, this was done as a means to cut out this aspect of the selection process. This is often compared to you selecting a doctor. You wouldn’t necessarily choose a doctor based on what he/she charges for their services, would you?
Aren’t ALL Land Surveyors the Same?
A part of this, to me, is that the public ASSUMES that ALL land surveyors (or engineers, or architects, or lawyers) are generally of the same competency level, or quality level. This is related to the Time-Quality-Cost Triangle that I mentioned in a previous article. The problem is that ALL professionals are NOT the same, some are better, or more qualified than others for certain jobs. Now, we can’t CLAIM to be better than someone else, but it is obvious that there are differing competency levels among all the members of a profession. One of my favorite jokes is “What do you call a guy who graduates last in Medical School?” “A doctor.” Same goes for land surveyors, engineers, architects, and lawyers.
The Alabama Law Reference
Here is the direct law reference for professionals in Alabama: (emphasis added)
330-x-14-.05(f) The engineer or land surveyor,shall not participate in or implement procurement practices (bid submittals) which do not first determine the qualifications of the engineer or land surveyor prior to entering into fee negotiations for services being sought. An engineer or land surveyor having submitted a statement of qualification and performance data, and having first been judged as the qualified individual or firm to provide the services required for the proposed project, may proceed to negotiate a contract with a client and establish compensation or fees for the required services.
330-x-14-.06 (a) The engineer or land surveyor shall not:
14. Participate in procurement procedures for engineering or land surveying services either by providing the bids or in requesting bids from other professional engineers or land surveyors where bidding is the primary consideration.
No Limits Before Law Applies to Professionals
Now, the most significant difference in the Federal and State Brooks Act and these references from the Law governing land surveyors and engineers is that there is NO LIMIT on when this law applies to Professionals under the Board of Licensure’s Law. The federal limit is $150,000 before the law applies. For the State of Alabama, the limit is $15,000 before the law applies. So, the Board of Licensure in Alabama has put the limit at $1 effectively by not giving a bottom limit.
This means that for ANY call that comes into our office WE, the professionals must explain the Brooks Act and QBS as it applies. Now, understand, it is NOT illegal for our potential clients to ask for Bids, just us to provide a bid. Again, unlike the Federal and State statutes, the one procuring the services is NOT responsible.
If you think that this is an undue burden on us as professionals, many agree with you. If you also think that having no bottom limit is idiotic, many agree with that also.
BUT, this is the law for Professionals in Alabama. Therefore, we must adhere to it or face consequences from our BOL who told us that they will “aggressively seek out and discipline” practitioners who may violate the “letter or spirit” of the BOL rules.
Our professional society, the Alabama Society of Professional Land Surveyors (ASPLS) has responded that they “see serious flaws with the concept at the workaday level and it is time for adjustments to be made.” But that has yet to be done. Hopefully the BOL will take this up at their next meeting.