DOJ opinion may rewrite GPO charter

A recent Justice Department opinion undermines the Government Printing Office's traditional charter to handle printing for the executive branch and appears to open the door for federal agencies to buy printing on their own.

Walter Dellinger, assistant attorney general, wrote in a May 31 memorandum that "GPO's extensive control over executive branch printing is unconstitutional under the doctrine of separation of powers," adding that "executive branch departments and agencies are not obligated to procure printing by or through the GPO."

The opinion is the latest blow to GPO, which has been attacked as a government monopoly and criticized for being out of step with technological change. It has seen its traditional printing business challenged by such electronic publishing means as CD-ROM and, most recently, the Internet.

The 136-year-old agency, however, has worked to address electronic publishing; in two years it plans to publish 10 times as many documents in digital form as it does today.

Those moves, however, may be moot if agencies - emboldened by Dellinger's opinion - decide to take their publishing work elsewhere.

"The first thing [the opinion] does is say to the agencies, 'You have a free rein to go buy printing wherever you want,' " said J. Timothy Sprehe, a consultant who has followed GPO issues.

"Some agencies will start doing that," he said. "Assuming that happens in some numbers and no legislative actions are taken, then GPO is really going to go down the tubes."

GPO employs 3,830 workers and is the largest industrial employer in the District of Columbia. A GPO spokesman said business has been "definitely down to some extent" this year due to the government shutdown, the budget impasse and the current squeeze on discretionary budgets.

Greater Competition

"The most immediate impact [of the opinion] would be the effect on the competition for printing in the federal government," said Donald Johnson, director of the National Technical Information Service (NTIS). "That kind of competition is good." Johnson added that a more open playing field "would certainly have a dramatic effect on GPO. It would have a dramatic impact on their revenue stream."

The Defense Printing Service and the General Services Administration are among the entities that could provide GPO with competition. NTIS could provide competition in electronic publishing. But Johnson noted that his organization currently does a considerable amount of printing work through GPO.

GSA's Reproduction Services Division already serves 80 agencies and commissions in addition to GSA. Asked whether GSA might expand its operation, a GSA spokesman said the agency is still reviewing Dell-inger's opinion. "They need to sit down and see what latitude this gives us," the spokesman said.

Contracting officers who decide to work around GPO have minimal legal risk, according to Dellinger's opinion. Agency officials, he wrote, "face little or no litigation risk arising from the decision to certify or disburse."

GPO advocates, however, do not believe that greater competition is necessarily a good thing. GPO's centralized publishing operation is more efficient than having agencies operate "redundant printing plants," according to a source close to GPO.

Agency-driven printing could also increase costs for the nation's depository libraries, the source added. GPO provides centralized administration for the task of routing documents to libraries. But the libraries would have to work with dozens of agencies to accomplish the same task in the absence of GPO.

In addition, the libraries may see a reduction in the number of documents available if dissemination is left to individual agencies, the source said. The cost of printing and distributing documents might also lead some agencies to curtail their publishing activities.

Reconsideration

GPO, meanwhile, has asked Dellinger to reconsider his opinion, on the grounds that it "contradicts earlier opinions" issued by Dellinger's office, said Anthony J. Zagami, GPO's general counsel.

In a June 11 letter to Dellinger, Zagami cited an opinion in which Dellinger held that "the Legislative Branch Appropriations Act, 1995...does not violate the separation of powers by delegating executive authority to the GPO." That opinion was contained in a 1993 memo to Emily C. Hewitt, general counsel GSA. Dellinger's May 31 opinion was also contained in a memo to Hewitt.

In 1994, Hewitt asked Dellinger for an opinion on the constitutionality of a law requiring executive branch agencies to "receive a certification from the public printer before procuring the production of certain government documents outside of the Government Printing Office," according to a letter Hewitt wrote to Dellinger in August of that year.

But Zagami contended in his letter to Dellinger that "I believe that Ms. Hewitt presents nothing in her Aug. 23, 1994, letter...to cause a reversal."

Zagami also cited an April 1996 memo from White House chief of staff Leon E. Panetta, directed to heads of executive departments and agencies, which said that "agencies should continue to procure printing and high-volume duplicating through the Government Printing Office" for the next 12 months. At that time, "the Office of Management and Budget will assess the cost-effectiveness of current printing and duplicating arrangements."

Zagami said it is possible that GPO will challenge the Dellinger opinion in federal court. "That's always been an option in this particular controversy," he said.

The difficulty, however, has been one of standing. Federal entities rarely challenge each other in court, and, moreover, federal courts do not render advisory opinions.

Legislation is another avenue to address Dellinger's opinion. Zagami said he believes Congress will look at the issue.

A spokesman for Rep. William Thomas (R-Calif.), chairman of the Joint Committee on Printing, declined to comment on Dellinger's opinion, saying the matter was still under review. The committee is the congressional oversight organization for GPO.

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-Dan Carney and Elana Varon contributed to this story.

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