Fed encouragement of Hatch Act loopholes worsens worrisome trend

Posted on June 22, 2009 by Frank Di Giacomo, Publisher

Would you want the bridge you use in your commute every day to work to be designed by the best in the business, or the cheapest? That's the question answered by the Hatch Act - one of the most important laws governing the selection of engineer-

ing, architectural and several other types of professional service firms. Passed in the 1970s, it bars federal agencies, or those receiving federal assistance from selecting these firms on the basis of price. In other words, it mandates a qualifications-based selection (QBS) process.

This is why consultants reacted so negatively last year when the FTA proposed to exempt the process by which it selects program management oversight contractors from Hatch Act rules. These firms are the primary means by which the FTA ensures that New Starts and Small Starts projects meet all of the program's regulations and objectives. Firms hired to provide program management oversight are to determine whether a project is on time, within budget, in conformance with design criteria, constructed to approved plans and specifications, and otherwise efficiently and effectively implemented. Instead, the FTA said it would select these firms by a combination of factors, including price, not just QBS.

Already undoing QBS laws

One of the major concerns by the architectural/engineering community about this move was that it seemed to condone a worrisome trend already under way in a growing number of states and cities. Partly as a budgetary measure and partly as a way to open up opportunities for smaller companies, some lower levels of government are beginning to do away with, or weaken, their Hatch Act-type rules. The result is lower quality design and construction in our infrastructure.

One disastrous example of what can happen with poor design is the collapse of the I-35 West bridge in Minneapolis two summers ago, in 2007. Less than two decades after it was opened, the state highway department began logging deficiencies in its strength and recommended corrective repairs. These warnings were ignored, or at least put on the back burner.

The FTA insists that it has no intention of either hiring unqualified oversight firms or in undoing the Hatch Act. Yet, that is precisely what the change implies: that price is just as - or even possibly more - important than qualifications. Just as importantly, though, what would stop the agency from doing the same thing for other professional service contracts if it is willing to change the contracting rules for the companies that oversee these services?

At a time when there is a growing recognition that our infrastructure is in dire need of repair or rebuilding, we need to hire the best to do the work. Hopefully, it will not take another tragedy like the I-35 West bridge disaster for Hatch-type rules to be restored.


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