The Brooks Act sets the federal process for selecting architects and engineers for covered design and related professional services. It applies to federal agencies and requires them to choose firms based on qualifications. The agency negotiates the contract price only after it has ranked the firms and selected the most qualified one. Price is not a factor in the initial ranking.
What the law requires
The Brooks Act, at 40 U.S.C. 1101 to 1104, covers federal procurement of architectural and engineering services. The agency publicly announces its need, reviews firms' qualifications, and ranks them. It then negotiates a fair and reasonable contract with the highest-ranked firm. If the agency and firm cannot agree on terms, the agency ends those negotiations and moves to the next firm in rank order.
For state transportation departments, the process often comes through federal-aid highway funding. Under 23 CFR 172, a state DOT or other recipient procuring engineering and design-related services for a federally funded project must use qualifications-based selection. The regulation sets requirements for consultant selection, contracting, and administration. A state DOT's own procurement rules also apply, as long as they meet the federal requirements.
Many states have "mini-Brooks Acts" that apply QBS to state or local procurement, whether or not federal funds are involved. The scope and details vary by state. Some laws cover a broader set of professional services; others apply only to certain public agencies or projects. Check the state statute and the owner's procurement rules before responding to a solicitation.
How a QBS selection works
- Public announcement. The owner describes the project, the services needed, the selection criteria, and how firms should respond. For federally funded highway work, the announcement and process must meet 23 CFR 172 and applicable state procedures.
- Statements of qualifications. Firms submit information that addresses the stated criteria. The submission is often called a statement of qualifications, or SOQ. For federal procurements, the standard form may be SF 330. See the SF 330 guide.
- Shortlist. The owner evaluates the SOQs against the announced criteria and identifies the firms that merit further consideration. The shortlist should be based on qualifications, not proposed price.
- Interviews. The owner may interview shortlisted firms to assess their understanding of the work, proposed team, approach, and ability to manage project risks. The interview should follow the announced criteria.
- Ranking. The owner ranks the firms in order of their qualifications. Price does not determine this ranking under QBS.
- Negotiation with the top firm. The owner negotiates scope and compensation with the highest-ranked firm. If the parties cannot reach agreement on a fair and reasonable price, the owner ends negotiations and proceeds to the next firm.
Writing a clear SOQ
Owners get better responses when the request is specific. Describe the project purpose, known constraints, expected services, deliverables, schedule assumptions, and the owner's role. Identify the experience and capabilities that matter for this project. State how the evaluation will work, including criteria and any interview stage.
Avoid criteria that are vague or unrelated to performance. If the work needs local permitting experience, say what kind of permitting experience matters. If coordination with utilities or railroad operators is likely, describe that need. Give firms enough project information to explain how their experience and team fit the assignment. Do not ask for a price proposal as part of the qualifications ranking.
Preparing for interviews
Use the same core questions and time expectations for each shortlisted firm. Tell firms who will attend, what topics to address, and whether presentation materials are allowed. Focus questions on the project's real challenges: technical approach, key staff roles, coordination, quality control, risk, and communication with the owner.
Include evaluators who understand the work and can apply the criteria consistently. Take notes tied to those criteria. Ask follow-up questions when an answer is unclear, and give each firm a comparable chance to explain its approach. The interview should help the owner judge qualifications, not invite firms to compete on fee.
Negotiating scope and compensation
After ranking, negotiation starts with the top firm. First confirm the scope. Resolve gaps or duplicated responsibilities before agreeing to compensation. A fee is only meaningful against a defined scope.
Review the firm's proposed labor categories, hours, and direct costs in relation to the work. Discuss the overhead rate and the basis for it, along with the fee or profit component. Ask for supporting cost information consistent with the owner's procedures and applicable federal requirements. Overhead, fee, and scope all affect whether the total price is fair and reasonable.
Keep a record of the negotiation, including scope decisions, cost review, and the basis for the agreed amount. If negotiations fail, document the reason, formally end talks with that firm, and begin negotiations with the next-ranked firm. A billing-rate tool can help organize rate assumptions during preparation: billing rate builder.
