Critics say contracting bill could do harm

By making it harder to attract new employees, Waxman’s proposal is flawed, opponents say

More oversight will not correct the deep cause of the government’s contracting problems, which is a shortage of qualified federal contracting officials, some government and industry critics say.

Opponents of a contracting reform bill that the House passed March 15 urged lawmakers to pay more attention to the government’s understaffed contracting workforce. With the government struggling to retain acquisition employees and fill empty positions, the Democratic-sponsored Accountability in Contracting Act would add more restrictions that could hinder recruitment, said Rep. Tom Davis (R-Va.), the House Oversight and Government Reform Committee’s ranking member.

Committee Chairman Rep. Henry Waxman (D-Calif.) introduced the contracting legislation, which mainly targets no-bid contracts. “Members are starting to ask what went wrong and to insist on accountability,” he said.

Waxman’s bill would put a one-year restriction on former government contractor employees now working in the public sector from having any role in awarding a contract to their former employers. The House passed the Accountability in Contracting Act by a vote of 347 to 73.  The bill sailed through three House committees and a floor vote in less than two weeks.

 “This is a new day in this new Congress,” said Majority Leader Steny Hoyer (D-Md.). “The days of hear no evil, see no evil, speak no evil are over. This Congress embraces its constitutional responsibility to conduct real, meaningful oversight, as well as our value of openness and transparency.”

Bush administration officials and some lawmakers oppose Waxman’s bill, particularly its revolving-door provision. They say the new restrictions would prevent agencies from tapping the technical expertise of experienced procurement employees. They argue that the bill would lower the quality of procurement solicitations and analyses.

Davis, who voted against the bill, said, “We can’t, on the one hand, bemoan the quality of contract management while, on the other, create more obstacles to getting the people that we need to do the job.”

Lurita Doan, administrator of the General Services Administration, has said the government needs to provide a better balance between regulating contracting and getting results.

Industry groups acknowledge a need for oversight, but they say an overburdened workforce is the reason for many current contracting concerns.

“Many of the contracting issues now being addressed by this and other committees are symptoms of the shortages of manpower and training for adequate contract management,” a coalition of 11 industry groups wrote in a March 7 letter to Waxman and Davis.

The House-passed version of Waxman’s bill includes some provisions for addressing the workforce shortage. For example, it calls on the Office of Federal Procurement Policy to conduct a study to assess the composition, size and job functions of the contracting workforce. The bill requires OFPP to develop a definition of the workforce and measure its size.

Concerns about a strained acquisition workforce are not new. The dollar volume of federal procurements jumped 63 percent since the 2001 terrorist attacks, but the government did relatively little new hiring, said Marcia Madsen, an attorney with Mayer Brown Rowe and Maw in Washington, D.C., and chairwoman of the Acquisition Advisory Panel, commonly known as the SARA panel.

Madsen said high-dollar and increasingly complex acquisitions require more sophistication from workers. Madsen recommended creating a method for tracking federal acquisition workforce trends in her testimony at a hearing called by a subcommittee of the Senate Armed Services Committee in January.

Paul Denett, administrator of the Office of Federal Procurement Policy, said he is concerned that the government has not adequately trained its contracting workforce. OFPP plans to use an online survey to gather demographic data on federal contracting specialists. That initial survey, which will not require employees to identify themselves by name, is one of several workforce surveys that OFPP will conduct, Denett said.
Seven ways Waxman’s bill would affect federal agenciesThe Accountability in Contracting Act, which passed the House with bipartisan support March 15, would change federal acquisition law by limiting the use of abuse-prone contracts and increasing transparency and accountability in federal contracting.

Its provisions would:
  • Limit $1 million or larger contracts awarded without competition to a one-year term. Agencies would have to award a new competitive contract after one year.
  • Require agencies to have plans and measurable goals to curtail the use of noncompetitive contracts. If an agency awards a noncompetitive contract, it would have to justify it and make the reasoning publicly available on its Web site and in the Federal Procurement Data System.
  • Require quarterly reports on audits, including information on unjustified or questionable contractor costs and the percentage of those costs relative to the total value of the contract. Agencies would have to submit an unedited copy of any audit a committee requests.
  • Push agencies to maximize their use of fixed-price contracts, which Waxman said are less prone to abuse than cost-plus contracts. This provision would keep companies from raising prices for their own financial advantage, because it sets the prices when the contract is signed.
  • Require a study of the acquisition workforce to define it and find a way to measure it.
  • Extend the acquisition workforce training fund, which is currently under a sunset provision.
  • Require a report to Congress from the director of the Government Ethics Office. The report would include recommendations for requiring government contractors that advise agencies on procurement policy to comply with personal financial interest restrictions, similar to those that apply to federal employees.
— Matthew Weigelt

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