Government limits public access to contracting meeting by charging a fee

Honorable William J. Haynes II

General Counsel

Department of Defense

The Pentagon

Washington, DC 20301

Fax: 703-693-7278

Jeffrey A. Rosen, Esq.

General Counsel

Office of Management and Budget

Eisenhower Executive Office Building

Washington, DC 20503

Fax: 202-395-7289

Alan R. Swendiman, Esq.

General Counsel

General Services Administration

18th and F Streets, NW

Washington, DC 20405

Fax: 202-501-2509

BGen Michael C. Wholley, USMC (Ret)

General Counsel

National Aeronautics and Space Administration

Washington, DC 20546

Fax: 202-358-4355

Gentlemen:

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. POGO has a keen interest in government contracting matters, especially those relating to the promulgation of the Federal Acquisition Regulation ("FAR").

POGO would like to compliment the Federal Acquisition Regulatory Council and the Office of the Director of Defense Procurement and Acquisition Policy for sponsoring the "First Annual FAR/DFARS Review" on Tuesday, October 24, 2006. The opportunity to meet with the individuals responsible for the issuance of government procurement regulations is important, and POGO appreciates the fact that the FAR issuing agencies are opening discussion of regulatory developments to the public. However, it is also in this vein that we write to you today.

As the chief legal officers of the agencies responsible for issuance and processing of the FAR, we are bringing to your attention what we believe to be a highly questionable public hearing practice that is being used with respect to past and pending proposed, interim, and final FAR and Defense FAR Supplement ("DFARS") changes.

As POGO understands it, the purpose of this program is to allow the public to "obtain insight into, and provide feedback on" regulatory changes by interacting with government policymakers who are responsible for the issuance of the FAR. Thus, POGO was stunned to learn that a registration fee of $105.00 per person is required in order to attend a meeting where the program agenda consists exclusively of presentations by government employees. POGO intends to pay the registration fee in order to send attendees to the meeting. However, we question the legality of charging a fee in order to attend what is a public meeting of government officials.

Many government agencies routinely conduct public meetings in order to discuss their regulatory agendas, but to POGO's knowledge, no federal agency has charged a "registration fee" to attend such a meeting. The institution of a registration fee for this public meeting on past and pending FAR changes sets a dangerous and highly questionable precedent.

The "FAR/DFARS Review" is described on its website (https://www.corpcomm-inc.net/dars/index.php) as being designed for "Government and industry acquisition personnel." However, one might assume that the imposition of a substantial registration fee is designed to limit public participation, particularly if one is unwilling or unable, to pay the $105.00 per person registration fee. The purpose of a public meeting is just that — to encourage public participation in the rulemaking process, not to limit participation to a select group of government and industry personnel who are willing or able to foot the bill.

POGO recognizes that some may assert that the "FAR/DFARS Review" is not a public meeting, but rather an educational program for which a registration fee is being charged. However, such a claim cannot pass muster.

First, as previously mentioned, the agenda consists exclusively of government personnel speaking about proposed regulatory changes to the FAR, and fielding questions and discussion. The speakers are from OMB OFPP, DoD, GSA, and NASA – the agencies that are collectively responsible for processing and/or issuing all changes to the FAR. Although meeting arrangements are apparently being handled by a private firm that arranges conferences, it is clear from the meeting agenda and registration confirmation (enclosed) that it is a government meeting that is open to the public, provided that one pays a registration fee. In fact, although a private firm is handling the program arrangements, the website for the "FAR/DFARS Review" states that is being presented by the Defense Acquisition Regulations System and the Office of the Director, Defense Procurement and Acquisition Policy. The website directs questions about the program to a government e-mail address and a government phone number, leaving little doubt as to the nature of this public meeting.

POGO recognizes that the meeting will be held at a local hotel and that there are costs associated with putting on the program. For example, some federal agencies have charged registration fees that cover the cost of printed/purchased workshop materials, instructors, coffee breaks, and luncheons. Nevertheless, this is not an adequate basis for charging the public to meet with and hear from government officials. We would contrast the "FAR/DFARS Review" with the open public meetings of the "Section 1423 Acquisition Advisory Panel." Those meetings, which have been going on for over the past year, have been publicly announced in the Federal Register, and are open to the public without charge.

The integrity of the federal contracting system is now perceived by the public as being at an all-time low. The imposition of a substantial registration fee by the FAR issuing agencies to attend a public meeting to discuss this system will only further erode what little confidence remains.

We urge you as the chief legal officers of the agencies that are participating in the "FAR/DFARS Review" to examine the legal basis for charging a registration fee to attend a public meeting of government regulatory personnel and to further explain why this meeting was not announced in the Federal Register.

Should you have any questions, please feel free to contact me or POGO's general counsel Scott Amey at (202) 347-1122.

Sincerely,

Danielle Brian

Executive Director

UPDATE (11/13/06): DoD Office of General Counsel declares event was not a "public meeting," but it will make the conference materials publicly available at www.acq.osd.mil/dpap/dars/index.htm.