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Project on Government Oversight

POGO pushes for detailed guidance on contracting

General Services Administration
Regulatory Secretariat (VIR)
1800 F Street, NW , Room 4035
ATTN: Laurieann Duarte
Washington , DC 20405

Subject: FAC 2005-11, FAR Case 2005-038

Dear Ms. Duarte:

The Project On Government Oversight ( POGO ) is an independent nonprofit organization that investigates and exposes corruption and other misconduct in order to achieve a more accountable federal government. As such, POGO has a keen interest in government contracting matters, especially those relating to the War on Terror and Hurricane Katrina, which have triggered many debates about the effectiveness of the federal government's response during emergency events.  POGO provides the following public comment to FAC 2005-11 / FAR Case 2005-038 "Emergency Acquisitions."  71 Fed. Reg. 38,247 ( J uly 5, 2006 ).  POGO supports the interim rule, but believes that more detailed guidance will clarify the existing FAR flexibilities that can be used in emergency situations.

First and foremost, POGO would like to state for the record that this public comment is not an endorsement of any of the emergency provisions that are referenced in FAR Part 18 or the contracting vehicles mentioned below.  POGO recommends that the regulations should be supplemented with guidance regarding hiring adequate staff to meet increased acquisition demands, improving training of when and how to use emergency flexibilities, and providing comprehensive contract administration and oversight to reduce the propensity of waste, fraud, and abuse during emergency acquisitions.  For example, on October 3, 2005 , the White House issued a memorandum discussing the use of increased purchase card limits for Hurricane Katrina, which helped curtail excess government spending.

To provide complete instruction to acquisition staff, the following emergency flexibilities should be included in FAR Part 18:

  • FAR Subpart 16.505(a)(3) (performance-based acquisition methods);
  • FAR Subparts 6.302-1 (only one responsible source), 6.302-5 (authorized or required by statute), 6.302-6 (national security), and 6.302-7 (public interest);
  • FAR Part 12 (acquisition of commercial items);
  • FAR Part 13 (simplified acquisition procedures and micro-purchases);
  • FAR Part 14 (use of sealed bidding);
  • Provisions outlined in the Homeland Security Act of 2002, Title VIII, Subtitles D (Acquisitions) and F (Federal Emergency Procurement Flexibility) codified at 6 U.S.C. §§ 393, 394, and 421 et seq., and 41 U.S.C. § 416; and
  • Modification of existing contracts.

For a comprehensive analysis of emergency flexibilities, please review the attached materials:

  • Darryl A. Scott, Brig Gen, USAF, Deputy Assistant Secretary (Contracting), Assistant Secretary (Acquisition), Memorandum (EF-01-01), "Rapid Agile Contracting Support During Operation Enduring Freedom," October 5, 2001.

  • Executive Office of the President, Office of Management and Budget, Office of Federal Procurement Policy, "Emergency Procurement Flexibilities A Framework for Responsive Contracting & Guidelines for Using Simplified Acquisition Procedure," May 2003.

  • David A. Drabkin, Senior Procurement Executive, "Memorandum for GSA Acquisition Workforce Associates – Emergency Procurement Authority," May 28, 2003.

The federal government must do everything it can to ensure that emergency funds reach the people who most need help and are not exploited by disaster profiteers. Mistakes will be made because of the urgent need created by an emergency situation, but government officers can minimize spending risks.  Accordingly, POGO urges the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council to provide a more detailed, comprehensive coverage of emergency flexibilities, including guidance related to the proper administration and oversight of federal spending.

Thank you for your consideration of this most serious matter.

Sincerely,

Scott H. Amey
General Counsel

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