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specific and sometimes narrow procurement problems, and inadequate attention to the necessity for eliminating old statutes when new ones are enacted. For example, notwithstand ing the general authority to negotiate contracts granted by the basic procurement acts, numerous special statutes provide the same authority for particular agencies or programs. Architect-engineer services are governed by a number of general and special statutes which conflict in fee limitations and solicitation requirements. One statute still on the books proscribes the procurement of ailanthus trees; another statute prohibits the reimbursement of Federal income taxes under AEC contracts.
Some 80 separate statutory provisions, with differences in wording and substance, govern access to the records of contractors and grantees. More than 110 different statutory provisions relate to experts and consultants; 90 of them are repeated every year in appropriation acts. The Davis-Bacon Act refers to advertised contracts and the Walsh-Healey Act to invitations for bids, and provisions were incorporated thereafter in the Davis-Bacon Act and the basic procurement acts to make it clear that negotiated as well as formally advertised contracts are covered.
Although the United States Code has a specific title 41 for “Public Contracts," many procurement laws are intermingled throughout the Code with statutes relating to programs and organic acts of many agencies. The net result is disorganization and disorientation.
The Commission's charter provided, among other things, for recommendations to modernize the procurement statutes and to identify “gaps, omissions, and inconsistencies.” We have responded to this mandate (1) by examining the substantive and technical aspects of existing procurement and procurementrelated statutes and (2) by making appropriate recommendations for changes.
Chapter 2 discusses the need for reorganization of the general procurement statutes under a single title of the United States Code. Chapter 3 examines the consolidation of several groups of related statutes. Chapter 4 identifies stat
utes limited to one or a few agencies which can affect efforts to develop and obtain greater Government-wide consistency in procurement policies. Chapter 5 covers statutes which appear to be redundant to the basic procurement acts or other provisions. Chapter 6 lists statutes mainly identified by the procurement agencies as obsolete and no longer required for their procurement operations. For the convenience of Congress and others, Chapter 7 lists all of the recommendations made in this report which call for legislative action for implementation or where legislative action would be expedient or otherwise preferable to action by the executive agencies.
The recommendations in this part are designed to supplement and accommodate the policy and substantive recommendations in other parts of this report. Thus, in recommending codification of the procurement statutes, we intend that the provisions to be included in a codification conform to those recommended elsewhere in this report, such as provisions to consolidate the Armed Services Procurement Act and the Federal Property and Administrative Services Act and to establish an Office of Federal Procurement Policy.
To provide background for our recommendations, an appendix to this part briefly describes the constitutional, common law, statutory, and regulatory framework in which Government procurement is conducted. The purpose is to convey a general sense of the legal environment, structure, and forces affecting the procurement process.
Additional information concerning the procurement statutes is presented in the final report of the Statutory Studies Group, March 1972. This sets forth the manner in which the study was conducted, analyzes the procurement statutes in detail, and makes specific suggestions including alternatives for dealing with many of the statutory problems identified. The details in the final report of the Statutory Studies Group should also prove useful in the program for revising the statutes which we recommend in Chapter 2.
Codification-A Consolidated Procurement Title in the United States Code
Recommendation 1. Establish a program for developing the technical and formal changes needed to organize and consolidate the procurement statutes to the extent appropriate in Title 41, Public Contracts, of the United States Code.
and formal changes needed to consolidate the procurement statutes to the extent appropriate in Title 41, Public Contracts, of the United States Code. Such a program might be conducted by the congressional Committees on Government Operations in coordination with the House Committee on the Judiciary. As an alternative, preliminary responsibility for the analytical studies and drafting required could be assigned to the Office of Federal Procurement Policy. The program could be accomplished in part by recodification action of the House Committee on the Judiciary, but in the main will require new legislation conforming to and incorporating the substantive changes in the statutes recommended in other parts of this report; for example, the recommendation for consolidation of the Armed Services Procurement Act (ASPA) and title III of the Federal Property and Administrative Services Act (FPASA).
Congress establishes fundamental procurement policies through legislation and influences the development of procurement policies in agency regulations and procedures through less formal actions ranging from committee reports and investigations to individual inquiries and recommendations often based on constituent complaints or suggestions. These actions may shape Government-wide policies or they may affect only specified agencies or programs. The development of procurement policies is also affected by actions of the General Accounting Office (GAO) which serves as an arm of Congress in overseeing executive branch activities.
Many of the 4,000 statutory provisions relating to procurement are scattered throughout the United States Code together with nonprocurement laws. This uncoordinated distribution of the procurement statutes is detrimental to good procurement. It significantly impedes economy, efficiency, and effectiveness in the application of the statutes by the executive agencies, industry, and the courts; detracts from congressional and executive control over the procurement process; and frustrates a unified approach to the consideration of statutory changes.
The solution to this problem is the establishment of a program for developing the technical
Advantages of Consolidation
Apart from saving words, space, and printing costs—no mean achievement per se—consolidation would make it easier and quicker to find the law. Instead of saying the same thing five times for five agencies, consolidation provides a single statement for all and, in the process, offers an opportunity to resolve any differences and to include other agencies. Consolidation would reduce the possibility of error, save the time of contract administrators lost in the process. Consolidation of the procurement statutes also means more work for a busy Congress, and it will raise numerous questions of congressional committee jurisdiction. It is therefore not lightly recommended just to be logically neat but only because, in our judgment, the clear practical benefits outweigh the transitional effort and travail.
We have not attempted to recommend what should be consolidated—or how it should be accomplished. The following discussion, however, suggests approaches to consolidation and offers an outline for a consolidated procurement statute.
United States Code, Title 41, Public Contracts
and lawyers in and out of the Government, expedite the training and qualification of new employees, and promote common understanding and uniform interpretation and administration of the law. This translates into cumulatively large savings in manpower, time, and costs for both the Government and its contractors. Consolidation also would facilitate the development of the Government-wide procurement regulatory system recommended in Part A, Chapter 4, of our report.
In addition, consolidation would provide greater assurance that when a statute is to be changed, all related laws will be identified and conformed. Correcting existing laws to conform to new legislation can be a formidable problem. Although Congress recognized that the FPASA affected or superseded many other laws, the task of identifying them in advance would have delayed its enactment. Nearly two years of research by the General Services Administration (GSA) was required to develop legislation to clean up the inconsistencies and overlaps.
While not immediate and dramatic, longterm cumulative benefits will be achieved by eliminating obsolete, duplicate, and inconsistent provisions; reducing the volume of statutes; and bringing procurement statutes together in one place in an orderly and logical arrangement. Better visibility and understanding of the statutes will lead to better control of procurement by Congress, better administration by the agencies, and better performance by contractors. Minimizing controversy and misunderstanding about the statutes also should promote better relations among Congress, Government agencies, and industry.
Title 41 of the United States Code now contains many general procurement laws, including the early general law requiring advertising, Revised Statute § 3709; the Buy American Act; a prohibition against contracts in excess of appropriations; the Assignment of Claims Act; the officials-not-to-benefit pro hibition; the Walsh-Healey Act; blind-made products provisions; the Subcontractor AntiKickback Act; the Contract Settlement Act; title III of the Federal Property and Administrative Services Act; the Wunderlich Act; and Service Contract Labor Standards.
Title 41 itself is not “official” law but is prima facie evidence of the law, and for all practical purposes it serves, so far as it goes, the need for a compendium of the procurement laws. Accordingly, the necessary framework and a good start for bringing all the procure ment laws together in one place already exists.
The problem therefore reduces itself to determining which of the procurement laws, non found in the other 48 titles of the United States Code, should be included in title 41.
This can be done in two ways. If the law is now in one of the unofficial titles of the Code (for example, the Miller Act, 40 U.S.C. $ 270a), it can be moved to title 41 by recodification action of the House Committee on the Judiciary. In this way, 41 U.S.C. SS 201–205 were
Inertia and Resistance to Change
We recognize that no matter how rough and jerry-built current statutes may be, present practitioners and users have learned to live with them. Many can cite statutes by chapter and verse and may not relish relearning a whole new script. Also, there is always the possibility that something significant will be
See Report of California Code Commission, 1947–1948, app. G, p.
21 U.S.C. $ 204 (1970). 31 U.S.C. $ 202 (1970).
recodified by committee action as 40 U.S.C. $$ 471-475. However, United States Code titles 1, 3, 4, 5, 6, 9, 10, 13, 14, 17, 18, 23, 28, 32, 35, 37, 38, 39, and 44 are official law. If a procurement provision is in one of these titles (for example, the experts and consultants statute)* legislation will be required to move that provision to title 41. Obviously, it would be easier to consolidate the unofficial Code sections than the official sections of the Code. This may not be a significant factor since in most cases substantive changes would be necessary in conjunction with any consolidation and recodification.
ment-related laws in one place. But this is neither fair nor practical. The average contract administrator or lawyer rarely needs to consult more than a central core of general procurement statutes plus those that may be of special application to his own agency or program. Professors Nash and Cibinic cite only 200 statutes in their comprehensive casebook, Federal Procurement Law. And our Preliminary Compilation of Laws Pertaining to Government Procurement, containing 450 Code sections, was found generally adequate for the purpose of our statutory studies.
Moreover, putting 4,000 laws or sections in one volume would make it most unwieldy and the most significant general procurement statutes would be lost in a multiplicity of statutes of minor scope and importance. This would frustrate the prime objective of making it easier to find the law.
Finally, the convenience of other interests must be considered. Some statutes have many aspects and their location should take into account the primary need of different classes of users. The Davis-Bacon Act, for example, could with equal justice be allotted to United States Code Title 29, Labor; Title 41, Public Contracts; or Title 40, Public Works.
In the last analysis the test as to codification must be a pragmatic one-the greatest good for the greatest number; where will the law be found most readily by the most people with the most need? This accords with ancient and modern prescription:
Our selection of "procurement-related” laws was empirical. Nearly all the statutes are procurement-related in the sense that they generate needs for procurement, establish the procedures for procurement, or provide the overall organizational framework, staffing, and funding controls for all Government operations. However, to give practical scope to "procurement-related,” selection was limited to laws which had direct application to procurement or imposed general limitations or requirements relevant to recognized problems and difficulties in procurement.
On this basis, a judgment was made not to include such statutes as agency organic acts which are basic to procurement only in the sense that agencies must buy strictly in furtherance of their own missions (for example, the Department of Health, Education, and Welfare cannot buy tanks for the Army). On the other hand, the statute authorizing agencies to subpoena witnesses was included on the basis that, although applicable to all kinds of agency claims and proceedings, it is particularly pertinent to the handling of contract claims and appeals.
The matter of a code ought, therefore, to be disposed in the most natural order. But what is the most natural order? It is the order according to which the law will be most easily consulted—in which the text which applies to a given case would be easily found and its true meaning understood. The best method is that which gives the greatest facility in finding what is sought.6
The draftsman should carefully select the subjects to be covered and arrange them so that they can be found, understood, and referred to with the least effort. Finally the draftsman should consider not only who and
Criteria for Codification
From a strictly procurement point of view, it would be desirable to have all the procure
Nash and Cibinic, Federal Procurement Law, 2d ed., 1969, & Jeremy Bentham Works, View of a Complete Code of Laws, 1962, p. 161 ; see also, p. 193.
*5 U.S.C. $ 3109 (1970).
how many will use a provision, but how often they will use it."
Discussions with statutory experts 8 generally confirm that apart from the logic of the United States Code titles themselves and the patterns reflected by the treatment of statutes in the existing Code, there are no established formal criteria for the handling of close questions as to where multifaceted statutes should be placed or when they should be broken down under several titles. Likewise, there are no established criteria with respect to whether statutes which have expired by their own terms should be eliminated or retained because of the possibility of pending claims or proceedings. It appears that the judgment in each case is to a great extent ad hoc, subjective, and practical—what will do the most good.
This is on the basis that the particular should control the general, that only people working with the agency or program will generally need to use them, and that they will make title 41 harder to use if codified there. However some of these provisions might be candidates for extension to other agencies and, in such event, would be appropriate for inclusion in title 41. • Provisions which expressly refer to contracting or procurement but are so bound by wording and context to other provisions of a general statute of broad scope that they cannot be readily severed and understood except in juxtaposition with the other provisions of the statute, should not be recodified. However, in such cases, consideration should be given to the possibility of excising such provisions and making other changes, including cross-references, to qualify them for inclusion in title 41.
From the foregoing, the following corollaries or working rules have been developed for possible consideration in any follow-on program for recodification and consolidation of the procurement laws:
• General provisions relevant to other Government operations as well as procurement should not be considered for recodification except where predominantly applicable to procurement. Thus 5 U.S.C. $ 304, providing for subpoenas in connection with all administrative claims, including contract claims, probably should not be recodified. On the other hand, 5 U.S.C. § 3109, providing for employment of experts and consultants by contract, should be recodified in title 41 because its use for contracts would seem to overshadow its use for direct hire. Obviously, this is a matter of subjective judgment. • Provisions which specifically refer to contracts, procurement, etc., should be recodified in title 41 except as indicated below. • Provisions limited to a specific agency or program should not be recodified in title 41.
In accordance with the foregoing criteria, the following general statutes could be considered for transfer to title 41.
Davis-Bacon Act, 40 U.S.C. S$ 276a-276a-7 Contract Work Hours and Safety Standards
Act, 40 U.S.C. SS 327–333 29 U.S.C. S 206(e), the section of the Fair
Labor Standards Act which establishes minimum wages for workers on Government service contracts not governed by the Service Contract Act and which contains special provisions respecting Govern
ment linen supply contracts. Miller Act, 40 U.S.C. SS 270a-f 42 U.S.C. $$ 1891-1893. These provisions
authorize the use of grants for research and development with nonprofit organizations whenever an agency is authorized to enter into contracts for that purpose. It also authorizes the transfer of title to equipment purchased by such institutions
under either grants or contracts. 15 U.S.C. $$ 637(a), (d), (e), and 644 providing for placing of contracts with SBA to be subcontracted to small business con
* Dickerson, The Fundamentals of Legal Drafting, 1965, p. 56.
& These included members of a Statutory Advisory Panel established by the Commission and a member of the editorial staff of the West Publishing Co., which publishes the United States Code.