·, \ \JOLUME1 oc: t:: :3 (1) , lb.!lliiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii___.iiiiiiiiiiiiiii--:::= THE COMMISSION PERKINS McGUIRE, Chairman Congressman CHET HOLIFIELD Consultant and Corporate Director Vice Chairman Washington, D. C. California PAUL W. BEAMER PETER D. JOERS Senior Vice President and Director Special Assistant to the Valtec Corporation President of Weyerhauser Corp. West Boylston, Massachusetts Hot Springs, Arkansas Senator LAWTON M. CHILES, Jr.' ARTHUR F. SAMPSON' Florida Acting Administrator General Services Administration Washington, D. C. Senator EDWARD J. GURNEY FRANK SANDERS Florida Under Secretary of the Navy Department of the Navy Washington, D. C. RICHARD E. HORNER ELMER B. STAATS President and Director Comptroller General of the United States E. F. Johnson Company Washington, D. C. Waseca, Minnesota Congressman FRANK HORTON JAMES E. WEBB 3 New York Attorney at Law Washington, D. C. 1 Appointed April 10, 1972 to replace Senator Henry M. Jackson who resigned. ~ Appointed June 12, 1972 to replace Robert L. K~nzig who resigned; aAppointed March 6, 1972 to replace Joseph W. Barr who resigned. iii REPORT OF THE COMMISSION ON GOVERNMENT PROCUREMENT Volume 1 Part A-General Procurement Considerations Volume 2 Part B-Acquisition of Research and Development Part C-Acquisition of Major Systems Volume 3 Part D-Acquisition of Commercial Products Part E-Acquisition of Construction and Architect-Engineer Services Part F-Federal Grant-Type Assistance Programs Volume 4 Part G-Legal and Administrative Remedies Part H-Selected Issues of Liability: Government Property lind Catastrophic Accidents Part I-Patents, Technical Data, and Copyrights Part J-Other Statutory Considerations \ v FOREWORD The Commission on Government Procure­ mission appointed an executive committee' to ment was created by Public Law 91-129' in assist and advise the chairman and vice-chair­ November 1969 to study and recommend to man in the management of the study opera­ Congress methods "to promote the economy, tions. A staff of about 50 professional members efficiency, and effectiveness" of procurement was employed by the Commission to conduct by the executive branch of the Federal Gov­ day-to-day study operations and direct the ernment. The appointment of all commissioners study effort. and the assembling of the principal staff was The collection and analysis of massive completed some eight months later. amounts of materials required help and advice The study was proposed in 1966, and pre­ of Government, industry, and the academic liminary hearings were held by the 89th and community. In all, the services of almost 500 90th Congresses. The bill' that led to Public persons were loaned to the Commission on a Law 91-129 was introduced in the 91st Con­ full- or part-time basis; some for periods ex­ gress by Representative Chet Holifield on Jan­ ceeding a year. Details on the fields of inquiry uary 3, 1969, and hearings were held in the and membership of the Study Groups are pre­ spring and summer. Testimony from more sented in Appendix B. than 100 witnesses filled ten volumes of hear­ In the first phase of the s··.cldy, more than 400 ings on the House bill and a companion bill problems and issues were identified and di­ introduced by Senator Henry M. Jackson. vided among 13 study groups arid several A commission, with membership from the special teams. The study was organized to pro­ legislative and executive branches and from vide in-depth coverage of the procurement the public, was adopted as the study mech­ process in three ways: (1) the environment in anism. The statute provided for a bipartisan, which procurement occurs (for example, Fed­ 12-member body. Two members of the House of eral organizations and personnel and the nu­ Representatives and a public member were merous authorities and controls under which appointed by the Speaker of the House; two they operate); (2) the sequence of procure­ members of the Senate and a public member ment events (for example, precontract plan­ were appointed by the President of the Senate. ning, pricing and negotiation, selection and Two members of the executive branch and award, and contract administration and au­ three public members were appointed by the dit); and (3) types of procurement (for ex­ President of the United States. The Comptroller ample, research and development, major General of the United States was designated a systems, commercial products, and construc­ member by the statute. tion) . The commissioners elected public member The Commission and its participants re­ Perkins McGuire as chairman and Representa­ viewed thousands of pages of procurement re­ tive Chet Holifield as vice-chairman. The Com- ports, congressional testimony, documents, comments, and opinions; consulted approxi­ mately 12,000 persons engaged in procure­ t For text of Public Law 91-129, as extended by Public Law 92-47. see Appendix A. ment; held more than 2,000 meetings at 1,000 2 H.R. 474. stet Cong., reported out of committee Aug. 12, 1969 Government, industry, and academic facilities, (H. Rept. 91-468): a companion bill. S. 1707. reported out of committee Sept. 24, 1969 (8. Rept, 91-427). Conference Report (H. including 36 public meetings attended by over Rept. 91-613), Nov. 12, 1969. Other 9lst Congo House bills: H.R. 9839; H.R. 10070: H.R. 13286. Earlier House bills in the 90th Conz. include H.R. 157, H.R. 2541, H.R. 4324. H.R. 7565, and H.R. 8785. Also a clean bill, H.R. 12510, was reported out of committee on 3 Chairman McGuire, Vice-Chairman Representative Holifield, Nov. 6, 1967 (H. Rept. 890). See also H. Rept. 1344, 89th Cong., Comptroller General Elmer Staats, Senator Edward Gurney; and Mar. 23. 1966, discussing the need for a eomprehenefve study. Under Secretary of the Navy F:rank Sanders:-· vii " CONTENTS Page Letter of transmittal ii The Commission iii Professional staff iv Organization of report v Foreword vii Chapter 1. INTRODUCTION 1 The Need for This Study 1 Procurement expenditures ________________________ 1 Modernize and simplify the system ____ _____ ___ _____ 1 Better coordination and management ___ ___ __ __ __ ___ 2 Importance of Procurement 2 Steps in the process ______ ___ ____ ___ __ __ __ __ __ ___ 2 Economic significance ________________________ _____ 3 Catalytic role in economy ___ __ ___ ____ ___ ___ ___ ___ 3 Social and economic implications u u __ _ 3 Concerns Over the Procurement Process 3 Major systems 3 Source selection and competition u __ _ __ __ __ __ 4 Accounting practices and profits ___________________ 4 The industrial and technological base ____ __ __ __ ___ __ 4 Characteristics of the private enterprise system _____ 4 Contract disputes and remedies ____________________ 5 Government Needs and Resources 5 Types of procurement ___ ___ ___ __ __ ___ ___ ___ ______ 5 Alternative sources u u _ __ _ 5 Blueprint for Action 5 'Policy goals _ u u _ __ _ __ __ _ _ __ _ _ _ __ _ _ __ _ __ _ 6 An integrated system with central leadership ________ 6 The role of leadership __ ____ ___ ___ ___ _____ __ ___ __ _ 7 A concluding thought 7 Chapter 2. POLICY DEVELOPMENT AND 9 IMPLEMENTATION Sources of Procurement Policy 9 Legislative branch u " __ _ __ _ _ _ __ _ _ _ 9 Judicial branch _ u __ _ _ _ __ __ _ _ _ _ _ __ _ __ __ _ _ _ __ __ __ 10 Executive branch "__ _ 10 Effects on the procurement process ________________ 12 xi Page Problems·with current practices __ c u __ 39 Problems with APA rulemaking for contract matters __ 40 Conclusions c__ 41 The Legal Force and Effect of Procurement Regulations 41 Chapter 5. THE P~OCUREMENT WORK FORCE 43 OrganizaUon 43 Place of procurement in agency organizations ______ 43 Role of the contracting officer ____ _____ ____ _____ ___ 44 Procurement Personnel 46 Procurement personnel management ________________ 46 Recruiting and trainee programs __ c _ _ _ _ _____ _ _____ 47 Career development _ u u__ _ 48 Tenure and promotion rights .. 49 Grade levels u u u • 49 ~ Rotation programs u u _ __ _ 50 Career development programs C ___ 50 ~ Reduction in force c _ _ __ 51 u Training Proqramu and Formal Education Opportunities 51 Government schools __ ________ ______ ___ ____ _____ __ 51 Federal Procurement Institute ___ ____ _____ ______ __ 52 Civilian and Military Personnel Assignments in DOD 53 Supplemental Views 55 Chapter 6. THE GOVERNMENT MAKE-OR-BUY DECISION 57 PoUcy 57 Expression of policy _ u _ __ _ _ __ __ __ __ ____ __ _ 57 Implementation and enforcement of policy __ : ______ 59 Cost comparlsorithreshold _u u u ______ 61 Cost comparison guidelines for existing activities and new starts 61 New starts C •• _ __ __ __ __ ___ __ __ 62 Dissenting position _______ __ ___________________ ___ 63 Implementation ___ _________ ________________ __ 63 Cost comparisons u' ~ c _ 63 Cost differentials u __ ___ __ 65 Government-Owned, Contractor-Operated Facilities 66 Chapter 7. TIMELY FINANCING OF PROCUREMENT 67 The Problem of Delayed Funding 67 Examples of Inefficiencies Caused by Late Funding 69 Alternatives for Consideration 71 Lengthening the period of appropriations ______ ___ 71 Changing the authorization process c _ u __ _ __ ___ __ __ 71 Change dates of the fiscal year u' • __ _ _ _ _ _ _ _ _ 72 Dissenting position u c ___ __ _ _ __ 73 Summary 73 xiii Poae Inadequacies in requests for proposals (RFPs) u __ u 99 ~ Conclusions u u u u _ u __ _ u u u _ _ 99 Failure to balance qualitative factors and price _______ 100 Conclusions u u _ u _ __ ___ __ 100 Underutilization of contract results _________________ 100 Conclusions u u _ u __ u u ___ __ ____ __ 100 Inappropriate use of professional service contractors ___ 100 Summary u _ u u _ u __ 101 Chapter 10.