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And it enumerates several others which are not expressly applicable to the present question.
Now, if you read on down further, you find one 1-34-excuse me1-3.210(b) which says that every contract negotiated under this authority shall be supported by determination and findings justifying use of the authority and that this D and F shall be prepared in accordance with the subpart 1-3.3 and be signed by the contracting officer.
You go down to 1-3.305. It sets out the form and requirements of D and F. It says it must be signed by the contracting officer and shall set forth enough facts and circumstances to clearly justify the specific determination made and shall set forth enough facts and circumstances to clearly and convincingly establish that the use of formal advertising would not have been feasible or practicable.
That looks to me to be clear, that you must make a determination and findings before entering the contract and that they must be in writing.
Mr. CERRA. We interpret that just a little differently. Obviously, the general provision you are referring to in 310(b) and (d), conflict with the specific provisions of 1.306.
Now, the later
Mr. POWERS. You just told me it didn't conflict with 2.306. There is nothing in the proposals in these sections I just read to you.
Mr. CERRA. The particular references in the last section that you referred to as I recall it concerns requests for proposals. Obviously, the exception we were going under under the act, 252(c)10, is where it is impracticable to obtain competition.
Generally, you are supposed to obtain competition in all contracts whether they are advertised for bids or whether they are negotiated except in cases of sole sources.
Now, our interpretation of that was that, No. 1, our chairman is the head of the agency and he has the right to obligate the Government under contract. The Commission itself had made a determination to enter this type of sole-source contract in a report I referred to on November 5.
Mr. DINGELL. Excepting that that is not the determination and finding required by law to be signed by the contracting officer.
Mr. CERRA. Our position is this
Mr. DINGELL. The question is really very simple. You can answer that yes or no.
Mr. CERRA. The requirements that you are referring to say that they must be in writing. We do not believe that the requirements say they must be—that that writing must be signed prior to the execution of the contract.
Mr. DINGELL. Signed by the contracting officer. The contracting officer here is Ms. Dalgleish; and that was not done, at least not until after the letter contract.
Mr. CERRA. That is correct. It was not done until after the letter contract was executed, but we think that is immaterial.
Mr. DINGELL. Yours is, I must confess, the most curious interpretation of law. Most curious.
Mr. WILSON. Mr. Dingell, may I stress
Mr. DINGELL. I do note, however, that this was not signed until after a member of my staff had called the ICC and asked for a copy
of the determination and findings. Then after the determination and findings were requested by a member of my staff, the papers were then signed on March 6.
Mr. BREWER. If I may say, sir, if you please, that was coincidental.
Mr. DINGELL. It is an unusual coincidence.
Mr. BREWER. Incidental. The papers were being prepared back as far as February 9. There are evidences here in handwriting where one person had drawn them up in handwriting, passed them to another person to correct, and then see if they were right and she passed them all through.
Mr. Wilson would like to
Mr. DINGELL. Do you have specific knowledge of the events or do you wish to speak
Mr. Wilson. Well, I just want to make an observation. I didn't make or draft the determinations myself. This was done by other members of the Commission staff. The only parts—the only thing I was doing was drafting up the contract determinations and provisions in the contract.
Mr. DINGELL. You have already said that, sir.
Mr. Wilson. Now, I do know for a fact that there were other people working on the determination and findings at a much earlier date.
Mr. DINGELL. Well, do you know-
Mr. DINGELL. I think the question here isn't whether they were working on determinations and findings but were the determinations and findings signed as required by law previous to the contract; apparently they were not.
We will be pleased to receive your testimony if it is on this point.
Mr. Conte. I brought this up at the appropriations hearings the other day. As I recall, it was with the Under Secretary for Transportation or someone. We were looking at a study made by NASA, which is one of the most comprehensive studies I have seen made on transportation. I wanted to know what business it was of NASA to make this study. I am getting quite concerned.
Now, you are involved in ICC matters. Maybe we had better take a good hard look at your budgets. You are involved in just about everything in government.
Mr. WILSON. No, sir.
Mr. CONTE. Certainly. You tell me why NASA was making a study on transportation, land transportation, surface transportation.
Mr. WILSON. I am completely unaware of that.
Mr. CoNTE. I am sure they are not going to put a rapid transit on the Moon.
Mr. Wilson. Sir, I am completely unaware of that.
Mr. CONTE. If you do come back this afternoon I will have my counsel get the study and I will show it to you. I am intrigued. How in the world do they justify lending you to ICC?
Mr. Wilson. Well, I don't know that there was any particular reason why I myself was assigned to ICC. The ICC needed some
assistance. They had some urgent contracts they needed to place. They requested assistance and I think that
Mr. CONTE. Isn't this a function of GSA? Don't they have all the procurement experts down there?
Mr. Wilson. GSA has a procurement organization. The Department of Transportation has a procurement organization. Many other Government agencies have a procurement organization. In this case the request happened to be made to NASA to provide them with some assistance and cooperate with them and try to help them out and as I say, I was assigned to do this for them as best I could and
Mr. CONTE. Well, I don't want to indulge or trespass on the patience of the chairman here, but I sit on the Appropriations Committee. I have seen some of the impoundments of funds for some worthwhile projects, funds that shouldn't have been impounded. Then I see NASA spending its money on a lot of unrelated projects. This puzzles me and, I think, even though I don't sit on the subcommittee handling NASA, it deserves a real hard look.
Maybe we are giving you too much money.
Mr. Wilson. Well, sir, the only thing I can say is that this was a relatively short-term assignment to get the job done. This in no way, certainly, interfered with any of my responsibilities over at NASĂ.
Mr. CONTE. I am not getting personal with you, but I am sitting on the Appropriations Committee and seeing these things and they make me wonder. I am certainly going to give this a good, hard look.
Mr. DINGELL. The Chair notes, Ms. Dalgleish, you are here. Your position in the ICC is what?
Ms. DALGLEISH. Official title?
Mr. DINGELL. Are you in charge of issuing contracts or signing contracts, making determinations and findings? Is that part of the regular function of the agency?
Ms. DALGLEISH. It is a small part; because we don't have contracts in the ICC to let, other than
Mr. DINGELL. The Chair has previously inserted the determination and findings you signed on the appropriate date.
The Chair notes that the warrant in this matter, am I correct, gentlemen, was issued to—who was the warrant issued to?
Mr. BREWER. Mr. Rebein Barks, the managing director, by the chairman.
Mr. DINGELL. Issued by the chairman in this matter.
As a matter of fact, it was issued to the managing director, was it not, in this matter? It was issued to the managing director, Bernard Schmid.
Mr. BREWER. He has retired. Mr. Rebein has taken his place.
Mr. Kahn. Attached to a letter dated March 19, to Chairman Dingell.
Mr. DINGELL. I am curious to know why is Ms. Dalgleish signing, making determinations and findings in this matter?
Mr. BREWER. May I read the warrant to you, sir?
Mr. BREWER. Dated July 1, 1971. Memorandum to Managing Director Jackson.
Authority is hereby delegated through you to the Chief, Operating Facilities Branch, Section of Administrative Services, to function as the contracting authority for the Interstate Commerce Commission with regard to all contracting negotiations and awards.
I believe Ms. Dalgleish-
Mr. BREWER. I can't answer that. This is dated July 1, 1971. I don't know.
Mr. STAFFORD. I don't recall.
Mr. POWERS. I would be interested to know why you issued one to Manager Jackson. Did you issue one to each managing director?
Mr. STAFFORD. This was in the early days when we were getting started to try to get cranked up for 270.
Mr. POWERS. You don't see any necessity to issue a warrant when you change your personnel?
Mr. STAFFORD. This was actually to the Office of the Managing Director.
Mr. Powers. Is there a specific reason why this warrant wasn't put on an ICC letterhead, why it had to be put on a scrap of paper?
Mr. STAFFORD. Most of our interoffice memos go out without a printed form, printed letterhead.
Mr. POWERS. Why is that?
Mr. STAFFORD. Well, it saves costs and there is no need of having it for interoffice memos, when they are directed to a certain office and signed by a certain officer.
Mr. POWERS. Don't you have interoffice memorandums, printed forms?
Mr. STAFFORD. I presume we have but we don't have-
Mr. STAFFORD. Not only on this but on many others of ours, most of our votes are not on printed forms.
Mr. POWERS. Ms. Dalgleish, when was the first time you were concerned at all with this contract with former Senator Allott? When were you advised of it or come into the negotiations?
Ms. DALGLEISH. The date it was signed. Mr. POWERS. Did you dictate the determinations and findings which have been inserted into the record, which you signed?
Ms. DalgLEISH. No, sir.
Ms. DALGLEISH. I was advised by counsel and procurement specialists.
Mr. POWERS. Ms. Dalgleish, aside from being advised by counsel, are you familiar with the requirement by contracting officers to enter contracts?
Ms. DalgLEISH. Yes, sir.
Mr. POWERS. Did you make a determination that Mr. Allott was "responsible” as required by 1-1.310-5?
Ms. DALGLEISH. No, sir.
Mr. POWERS. Did you prepare and/or place in the files statements showing any justification for finding Mr. Allott should be awarded this contract, such as is authorized under 1-1.310–6(b)?
Ms. DALGLEISH. No, sir.
Mr. DINGELL. I hope you will answer audibly, at least audibly so our reporter can hear.
Mr. POWERS. In the Federal procurement regulations there is a section 1-1.310–7, which says, before making a determination of responsibility the contracting officer shall have sufficient current information to satisfy himself that the prospective contractor meets the standards enumerated in section 1-1.310(5), which was the previous one on the responsibility of the contractor to be able to perform and it enumerates the things that should be considered as information from the prospective contractor, including representations and other data obtained in bids and proposals or other written statements or commitments such as financial commitments and self-contracting arrangements? Do you have any such information?
Ms. DALGLEISH. No, sir.
Mr. POWERS. Do you have any other existing information within the agency including financial data, including a list of debarred and ineligible bidders?
Mr. DALGLEISH. Yes, sir; we have.
Mr. Powers. Did you look at that list of ineligible bidders to see if Gordon Allott was enumerated in that list?
Ms. DALGLEISH. No, sir.
Mr. POWERS. Did you look at records concerning contract or performance to see if former Senator Allott was contained there at any point?
Ms. DalGLEISH. No, sir.
Mr. Powers. Did you refer to any publications, including credit ratings and trade and financial journals to determine Gordon Allott's qualifications?
Ms. DALGLEISH. No, sir.
Mr. POWERS. Up to that point, did you refer to any other sources, including banks and other financial companies and other government departments and agencies to determine his qualifications?
Ms. DALGLEISH. No., sir.
Mr. DINGELL. When did you first see the determination and findings?
Ms. DALGLEISH. Are you still talking—the date it was signed.
Mr. DINGELL. Who was it that handed it to you to sign? How was it presented?
Ms. DALGLEISH. It was hand carried to me by Mr. William Allen.
Ms. DALGLEISH. He is another contract specialist working in our Bureau of Economics.