Friday, June 15. 2007

More on MAPPS vs. US Summary Judgment

I dug through the 19 page decision (pdf) and offer up these key points in Q & A fasion. (I am not a lawyer but did my best to decipher the language.)

Did the amicus briefs help?
Yes. The judge writes on page 4: "It is also worth noting that the record unambiguously reflects that the provision of "mapping" services in the modern marketplace includes a much broader scope of work than the traditional mapping work of land surveyors. See Affidavit of Douglas Richardson, filed as Exhibit A to Brief Amicus Curiae of Association of American Geographers et al."

Which plaintiffs were not granted standing?
Council on Federal Procurement of Architectural and Engineering Services, National Society of Professional Engineers, and American Society of Civil Engineers.

Why?
They didn't show they were injured. MAPPS had the possibility of standing (ultimately it was denied standing, too) because it provided affidavits that tried to detail damages.

How did the judge understand the damages cited by MAPPS?
First off, MAPPS has only organizational members and so provided affidavits (three, two of which used the identical wording, according to official documents) from staffers of member companies of situations where ideally they were restricted from bidding and thus were "damaged."

The judge examined the two contracts in question. One was with EPA. The contracted required a national firm so small firms were basically not qualified. The job went to Lockheed Martin one of the three nationwide firms to bid. Said the judge: "It is apparent from the record that the individual surveyors, and their small to mid-sized firms, were not plausible candidates for the EPA contract given the large scope of that contract."

The other contract was NAIP (National Agricultural Imagery Program) for USDA. In that situation the representative of the firm basically could not show injury. Wrote the judge: "It [MAPPS in its documents from individual surveyors who are staffers of member firms] has not provided authoritative constructions of the pertinent state laws establishing that the services solicited by the USDA need not be performed by a licensed person. Nor has it made any showing at all that Oklahoma would discipline Blackwell or his firm for bidding on the USDA contract."

So, did they settle anything?
Not really, the heart of the case, "the merits" were not addressed. Summary judgment was made simply on the fact that none of the four plaintiffs could be granted standing. That's apparently what the law says about standing: if there's no standing you can't get to exploring the merits of the case.

Posted by Adena Schutzberg at 13:06 | Comments (3) | Trackbacks (0) |

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No injury, no cause, no standing...no kidding.

#1 Archie Belaney on 2007-06-15 21:06 (Reply)

I think that Adena Schutzberg did a pretty good job explaining what happened with the case. It is disappointing to many that the merits of the case were not addressed. I really believe that the geospatial community is best served with a consistent federal policy for geospatial services procurement.

I think that MAPPS members could have done a better job addressing the standing issue (many members have been harmed by federal agency price bidding for complex geospatial services, some state laws are clear that this is a violation of licensing law when it occurs within their state, and the taxpayer suffers), but that is water under the bridge.

However, the Court did reaffirm the fact that where an applicable state licensing law requires performance by a licensed surveyor, a Federal agency must abide by that state law and use QBS on the contract. This is an important victory with regard to programs like the U.S. Department of Agriculture’s National Aerial Imagery Program (NAIP).

I am disappointed that the Court did not comment on the full legislative history, nor on the more than one dozen individual pieces of enacted legislation and Congressional legislative history in which Congress ordered QBS for mapping activities broadly defined, nor the various state law definitions of surveying that include mapping activities.

But did the Amicus brief help? This is where I couldn't disagree more. MAPPS supports the statement made by the court that “the record unambiguously reflects that the provision of “mapping” services in the modern marketplace includes a much broader scope of work than the traditional mapping work of land surveyors”. That is a central tenant about why the case went forward. It is not about what the Amicus claimed about surveyors "taking over" the industry. It is soley about procurement and the court reaffirmed that.

Geospatial is just as complex as surveying and clarity is necessary for private sectors firms to make business model decisions as a result of procurement policy. Unfortunately, the "race to the bottom" will continue until the merits of the case are decided.

Kurt Allen
MAPPS President

#2 Kurt Allen on 2007-06-16 20:15 (Reply)

Perhaps it's more a race to market equilibrium. If the market is truly free, the best value will be returned to the Government.

There's interesting information on the free-market approach here < http://www.reason.org/index.shtml > and here < http://www.tsaugust.org/Economic%20Development.htm >, although some may disagree with these ideas.

#3 Archie Belaney on 2007-06-17 10:03 (Reply)

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