Let’s go to court

George Cho PhD

This note is about two developments in the mapping world that should be of interest to professionals in the geospatial industry. One took place in the United States where a group of surveying professionals have asked the courts for a ruling on who may be able to tender for public contracts to draw ‘maps’. This development should raise the concern of most geospatial professionals. The second took place at the opposite end of the world in Australia where the Copyright Agency representing surveyors has sought a ruling on the ownership of intellectual property rights of surveyor’s maps. While these two cases are interesting such developments are indicative both of the maturing of the geographic information (GI) profession and the willingness of professionals to assert their ‘rights’.

The MAPPS case

In February 2007 in the US the Management Association for Private Photogrammetric Surveyors (MAPPS), American Society of Civil Engineers (ASCE), National Society of Professional Engineers (NSPE), and Council on Federal Procurement of Architectural and Engineering Services (COFPAES) brought a case against the government in the Federal Court. The litigation sought to change how the Brooks Architect- Engineers Act (1972) (see 40 U.S.C. §§
1101-1104). – a law concerning how federal contractors are selected in the procurement process – is implemented with regard to ‘mapping services’.

The Brooks Act is a framework for contracting architecture and engineeringrelated work for the federal government. The award of contracts for such work isbased on ‘qualification-based selection’
(QBS) rather than on price. QBS is predicated on professional qualifications and experience, followed by negotiation with the most qualified firm of a price that is fair and reasonable to the government. With amendments, surveying and mapping has been added to QBS.

The Federal Acquisition Regulation (FAR) Council, made up of several government agency executives, implements statutory laws, like the Brooks Act for awarding contracts.

The MAPPS litigation is how the FAR Council has implemented the Brooks Act and related legislation (see Francica & Schutzberg 2007 and Respini-Irwin 2007a). The sticking point is that mapping services do not fall under the QBS part of the Brooks Act and thus may be contracted in the traditional pricebased competition. The interpretation of the Brooks Act has been variable and implemented in different ways by different agencies when contracting for mapping.

The MAPPS litigation sought to ensure the FAR Council properly implement the Brooks Act (see statements by MAPPS 2007a). If successful, mapping would be added to the list and government contracts would only be awarded to qualified professionals such as surveyors, geodesists and photogrammetrists. The implication is that all federal contract mapping would fall under the QBS provision of the Brooks Act and need to be procured through licensed architects, engineers, surveyors and cartographers. Under such a scheme, mapping would become more expensive, complex and exclusive. It also may mean that the broader mapping community andmuch of the GIS industry would be shut out of federal mapping contracts. The unintended consequences could cripple the GIS industry, damage geographic science in the US in terms of research capacity and competitiveness and shackle government agencies to only those mapping services provided by the MAPPS membership.

Several groups have prepared amicus (‘friend of the court’) briefs. The Urban and Regional Information Systems Association (URISA) released a statement in February 2007 opposing the plaintiffs’ case because of the potential harm to the professions and the industry and details a list of problems including expanding “the scope of architecturalengineering surveying and mapping far beyond the scope of any professional expertise certified by registration or licensing as a surveyor, engineer, or architect” (see Respini-Irwin 2007a).

The Association of American Geographers, the GIS Certification Institute, the Geospatial Information & Technology Association and the University Consortium for Geographic Information Science as well as the National States Geographic Information Council have joined URISA in filing the amicus brief. The brief states that “amici [filers of the brief] would suffer injury if the MAPPS plaintiffs were to win this lawsuit … [as it] would not only insulate all federal mapping contracts from price competition, but also exclude everyone else – that is, anyone and everyone other than licensed engineers and surveyors – from even being eligible to receive a federal mapping contract” (see Francica & Schutzberg 2007b and Schutzberg 2007).