Statement of Administration Policy: H.R. 3161 - Federal Property and Administrative Services Authorization Act of 1991

(House)
(Conyers (D) Michigan and Horton (R) New York)

The Administration opposes enactment of H.R. 3161. If the bill were presented to the President in its current form, the Attorney General, the Secretaries of Defense, the Treasury, Energy, and Veterans Affairs, and the Administrators of the General Services Administration (GSA) and the National Aeronautics and Space Administration would recommend a veto. The Administration is particularly opposed to provisions in H.R. 3161 which would:

—   Permit bid protestors to file suit in Federal court for treble recovery of attorneys' fees and bid protest and proposal costs. This would burden Federal courts and impose unwarranted costs on agencies.

—   Authorize coercive and pointless investigations by the General Accounting Office, including depositions of cabinet-level officials, who would ordinarily know nothing about the procurement at issue. This would essentially bind the agencies de facto to abide by the Comptroller General's orders. The Comptroller General is not permitted under the Constitution to bind Federal agencies.

—   Encourage litigation and weaken agency control over and accountability for their contracts by: (1) allowing subcontractors and other parties without a direct economic interest to file bid protests; (2) expanding bid protest remedies to include orders for the award, cancellation, and termination of contracts; (3) giving the General Services Board of Contract Appeals (GSBCA) authority to reject settlements and to issue unspecified orders to enforce board decisions and orders; (4) requiring GSA to interfere in agency procurements whenever a failure to abide by law or regulation is alleged; and (5) removing appellate jurisdiction from the Federal Circuit, the court with specialized Government contract expertise.

—   Subject buying agencies' determinations of their requirements to (1) administratively burdensome specification development and offeror debriefing procedures, and (2) review and redetermination in adjudications before the GSBCA, the GAO, and the courts. These forums lack the buying agency's expertise concerning their needs and cannot be held accountable for mission success.

—   Allow offerors of non-commercial products to challenge the Government's requirement for a commercial product. This would undermine the Administration's policy of encouraging greater Government reliance on off-the- shelf commercial products in place of custom-designed products.

—   Prescribe specific values for contract evaluation factors. This would limit the discretion necessary for acquisition officials to effectively evaluate state-of- the-art commercial products and competitively select those that are most advantageous to the Government.

—   Hamstring GSA's operation of multi-year contracting programs by eliminating GSA's current, permanent authorization for appropriations.

—   Inhibit agencies' negotiation of favorable prices when buying products noncompetitively and awarding Multiple Award Schedule contracts by (1) limiting the amount of sales data they may request concerning the prices offered and discounts given to commercial buyers; and (2) precluding the Government from requesting any such data whenever a vendor offers the Government its lowest end user price.

—   Require substantial contract modifications to be competed even though they would (1) effect significant changes within the scope of the original competitively awarded contract, or (2) exercise an option evaluated as part of that original contract. This would substantially delay the carrying out of agency missions.

While the Administration is unable to support H.R. 3161 as a whole, certain provisions of the bill are worthy of enactment. The Administration has proposed increasing the small purchase threshold to $50,000 and would support that change as a standalone provision. In addition, the Administration could support legislation which included those provisions of H.R. 3161 that would:

—   Encourage use of functional or performance specifications to the maximum extent possible.

—   Encourage the purchase of commercial products when in the best interest of the Government.

—   Discourage requests for cost and pricing data in those circumstances where they are not necessary to protect the Government's interest.

—   Direct the development and use of simplified uniform contracts for the acquisition of commercial products.

—   Permit agencies, under appropriate circumstances, to award more than one contact for the same product or service.