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Legislating in Opposite Directions

by Robert Antonio

February 14, 2000

  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 VAs 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.


1 The Nash & Cibinic Report, January 1999, Federal Publications, Washington, D. C.

Copyright 2000 by Robert Antonio

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