A few months ago, I
wrote an article entitled Many Faces to
Industry in which
I noted several different pieces of legislation authorizing
contracting practices that are not or may not be consistent with
the overall procedures in the Federal Acquisition Regulation
(FAR). Since then,
I found a similar article in The Nash & Cibinic Report.
The article
noted that Congress, through Public
Law 104-262, (38
U.S.C. § 8153), gave the Department of Veterans Affairs
(VA) the authority to acquire certain health-care resources
without following the Federal Acquisition Regulation (FAR) or
federal contracting laws. The
article went on to discuss VA’s proposed implementing
regulations and how most of the proposed changes would fit under
the requirements of the Federal Property and Administrative
Services Act. As a result, VA could have accomplished much
the same thing without separate statutory authority.
After the analysis of the proposed regulation, the writer
concluded
“.
. . we are headed in the wrong direction if one agency after
another goes to Congress to obtain authority to break away
from the FAR system. In
the 1980s, it was the Postal Service.
In the 1990s, it has been the Federal Aviation
Administration and the Department of Veterans Affairs.
None of these agencies procure anything different than
other agencies procure. If the FAR is no good for them, it is no good for any agency.
If the major procurement statutes are making the FAR
inflexible (which we doubt in most part), they should be
changed.”1
Since the
article was written, the United States Patent Office (PTO) was
converted to a Performance-Based Organization by Public Law
106-113. Of course, PTO is now free from federal
procurement law and regulation and may do its own thing.
(See Public Law 106-113, Subtitle
G, Section 4712.)
Apparently,
Congress considers diversity to be a good thing in federal
procurement. What about the federal assistance
area--grants and cooperative agreements? There are over
600 federal programs which provide assistance to State, local,
and tribal governments and non-profit organizations.
Anyone dealing with federal assistance has experienced the
agency-by-agency rulemaking with generalities from the Office of
Management and Budget. If Congress wants piece-meal
procurement, it should love federal assistance.
However, in 1999,
Congress acted on federal assistance with the passage of Public
Law 106-107. In introducing the legislation, Senator
Voinovich said
". . .
today in this country, if you want to apply for Federal
assistance, every agency has a different form. If you have to
report on what you are doing with that Federal assistance,
every agency has a different form. We want to make those forms
uniform across the board, which we know will relieve a lot of
pressure and paperwork on the folks who are involved in these
programs."
To consolidate
the varied forms and regulations, the new law directs the Office
of Management and Budget (OMB), in consultation with federal
agencies, to direct, coordinate, and assist federal agencies
in
(1) a common application and
reporting system, including--
(A) a common application or
set of common applications, wherein a non-Federal entity can
apply for Federal financial assistance from multiple Federal
financial assistance programs that serve similar purposes and
are administered by different Federal agencies;
(B) a common system, including
electronic processes, wherein a non-Federal entity can apply
for, manage, and report on the use of funding from multiple
Federal financial assistance programs that serve similar
purposes and are administered by different Federal agencies;
and
(C) uniform administrative
rules for Federal financial assistance programs across
different Federal agencies. . . . (emphasis added)
Maybe OMB will develop a Federal
Assistance Regulation Council. Maybe they will call it the
FAR Council.
Over the next several years,
electronic commerce will move at an ever increasing speed.
Already, there are business to business processes that are
leaving the federal government behind. If Congress continues to break-up the
federal contracting community, federal agencies going it alone
will be left in the dust. This makes no sense when
Congress is moving in the opposite direction on federal
assistance.
