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Allott is going to use, in his handling of these matters, the fruits of this RMC contract, is he not?
Now, I want you to be very clear, Mr. Brewer. I'm not leading you down any primrose path, and if I am in error on this, I want you to tell me because I'll take a very different view of this matter.
Mr. BREWER. I think you're right. I think you're right, and I think it is a matter of concept.
Now, your question again, sir, was, Why didn't the Commission vote on this $1,400,000? Is that right?
Mr. Powers. Well, let's eliminate that question.
Now let me ask you this. It was necessary for the Commission to vote on what was originally a $575,000 RMC contract. It was not necessary, apparently, for a $650,000 contract for Mr. Allott to be approved.
Mr. BREWER. This is what I wanted to get to, and this is where I was trying to get at semantics.
The RMC contract, sir, was a competitive contract. There were seven or eight different bids. There was an evaluation committee, and I would like during the course this afternoon, to have the people who handled this bring you up to date on where it started back under Commissioner Walrath, and Fred Dolan, who is here, and then moved on when Fred became administrative trial judge, to Mr. Rhodes, who took it over.
All of these contracts were received. They were evaluated by an evaluation committee, and this committee had previously established certain basic criteria by which they would measure the capabilities of each of these bidders, and they met completely and apart and separate from me in one of the hearing rooms—I think they were there most of the day. Mr. Rhodes can testify more.
Mr. DINGELL. This is on the RMC.
Mr. BREWER. On the RMC, and I'm trying to get to this, now, as to why they voted on that.
At the end of their evaluation, Mr. Dolan prepared a memorandum to me to circulate to the Commission which lists these bids and showed how they came out point by point, and asked the Commission on a no objection basis to approve our recommendation for the RMC contract, and nobody objected, so that was a vote.
Now, with regard to the other, as I conceived a sole source contractif I'm wrong, it won't be the first time—but as I conceived my role in this—and let me go back to refer you to my letters in which I said no Commissioner would covet this assignment because I think everybody knows, or at least all of us know the magnitude of it-but I interpreted my role as finding a person who would meet the profiles that had been previously described in considerable detail in a number of documents that I talked about this morning.
Now, once I found the man that I thought could do the job, as a recruiter, my job, working closely with the chairman in all of this, my job was then to turn this man over to the contracting people and the legal people to complete a contract.
Now, my point is that this was a sole source contract. I found the man. Every one of the Commissioners knew I had found the man. Every one of the Commissioners knew that we were negotiating with him almost on a two or three times a week basis, that he was meeting with the contracting officers privately, discussing contract. Now, there's a difference there between choosing between a number of competitors in a competitive kind of contract, and a sole source type of contract, in my opinion.
Mr. POWERS. But you did not advise the Commissioners of your negotiation with Mr. Allott by written memorandum because your memorandum under date of February 26 was the date the letter contract was let.
Mr. BREWER. That's right.
Mr. POWERS. And yet you felt it was necessary by written memorandum to discuss with your fellow Commissioners whether or not Judge Friendly should be retained as special counsel back in 1972.
Mr. BREWER. Well, I guess
Mr. POWERS. I just question how much they did know about this and then they did not have any choice about whether or not they were going to approve or disapprove.
Mr. BREWER. Sir, you only asked me if they approved or disapproved. You didn't ask me if they knew anything about it.
Would you do that?
Mr. POWERS. Well, they did not know anything from a written memorandum.
Mr. BREWER. That wasn't the question you asked, sir. You asked if they voted or did not vote, approved it or did not approve.
Mr. DINGELL. Well, the Chair is interested in being fair.
Mr. Dingell. Well, Chairman Stafford, we will trust to see to it that you will communicate with the other Commissioners on your own behalf and on behalf of this committee, to communicate with us such other amplicatory matters as may make their answers fully responsive for the record.
Mr. STAFFORD. As to whether or not they knew that Senator Allott was being considered, as well as all of the other Congressmen?
Mr. DINGELL. Yes.
Mr. STAFFORD. Well, I am convinced there will be a very affirmative answer.
Mr. BREWER. Well, if I could, sir, I'd like to ask the chairman if he knew in detail.
Mr. STAFFORD. Very definitely, because we talked it over before the vice chairman ever went to talk to the Senator, and I followed it just as closely as I could with the other responsibilities I have. The vice chairman kept me advised regularly. I had no question in my mind at any time that we were proceeding properly. I
may have asked if our lawyers were following it closely. I was advised that they were, and I have no question in my mind whatsoever about this.
Mr. POWERS. When the decision was made to go sole source, was this subject to a vote by the Commission?
Mr. BREWER. That may have been before my day because I came into it later. Mr. Dolan was here from the inception.
Would you like to ask Mr. Dolan that question?
Mr. Kaun. Chairman Dingell, the response to that will be found in the report of the Commission in ex parte 270, which was furnished to counsel previously, and the substantive determination by the entire Commission by vote made it perfectly clear that the Commission was proceeding on a sole-source basis.
Mr. DINGELL. What language in support of that do you cite, Mr. Kahn?
Mr. Kahn. The language in the beginning. "Several parties in this proceeding strongly urged the appointment of special counsel with a staff apart from our established organization to assist in the identification of issues and development of formal records. Some parties believe that counsel should be appointed from this Commission staff while others propose that an impartial counsel be selected from outside the Commission.
"There are also suggestions that efforts be made to obtain a staff for the counsel from other Government agencies which are better funded than this Commission." And the discussion continues and indicates the Commission's determination to proceed in accordance with the recommendation of some of the parties and to retain special counsel.
Mr. DINGELL. Well, now, I have immense respect for you as an able lawyer, Mr. Kahn, but I will have to be perfectly honest with you. I don't think even a lawyer of your great ability could profess to this committee that anywhere in that language that you read have you set forth that language mentioned in any fashion which endrosed or rerequired the appointment of a special counsel as a single-source procurement.
Mr. Kaun. The precise language of the procurement regulations will not be found in that
Mr. DINGELL. No, no. Where does that language say single-source procurement of the service?
Mr. Kahn. Well, you won't find it in there.
Mr. DINGELL. That's exactly right, and that is the question that Mr. Powers was addressing to you.
Mr. Kaun. You will find a reference, however to Mr. Justice Louis Brandeis who was rather
Mr. DINGELL. Now, wait.
Are you going to tell me that Mr. Justice Louis Brandeis was a single source contract?
I don't know whether he was or not. I think the law has rather changed since his day.
But in any event, where does that say single source procurement?
Mr. BREWER. May 1, if I can, enlarge on this, merely to try to help us_ get an understanding.
In that series of letters I gave you today, sir, if you'll notice on the background, appendix A
Mr. POWERS. Which was submitted earlier to the committee?
Mr. BREWER. Yes. We deal with special counsel. Selection role and salary. The essential problems are the selection of the special counsel and the salary arrangement and his role: we much know how much money can be offered and the manner in which we can retain such an individual. At that time we must be able to inform eligible persons what will be expected of special counsel and what he is to receive in return.
Since the special counsel to some extent will be charged with the responsibility of these investigations, he should be retained and become a part of these proceedings as soon as possible; certainly before the direction of these proceedings is fixed, the special counsel should have an opportunity to make his views known.
Mr. POWERS. Well, Mr. Brewer, wasn't this appendix attached to a letter to the Office of Management and Budget requesting the release of funds?
Isn't that what that is an appendix to?
Mr. BREWER. Well, it isn't dated, and I have it attached to the series of letters that I gave you. I don't know whether I've got it out of place or not. But from the very beginning, I think, from the very action that we took, there was a demonstration that we considered sole source contracts from the very beginning because we only talked to one person at a time.
Mr. DINGELL. We may take that as fairh.
Where in the official proceedings does that single source contract appear?
Mr. BREWER. I am not sure I know where I can find it, where it is, but it certainly was discussed, and we said we cannot—this is the kind of thing I guess we all assumed that it was the kind of thing that you don't go to competition on. You choose your man.
Mr. DINGELL. Well, it appears that you were telling the OMB—it appears you were telling the OMB more than you were telling the other Commissioners. That is the problem I have.
You may have been in on this thing
Mr. STAFFORD. No, no, Mr. Chairman, the rest of the Commissioners
Mr. DINGELL. It does occur to me, and I may be grossly in error, but single source procurement on a contract of this magnitude and of this uniqueness without the benefits of negotiation does appear to be rather extraordinary in the light of what your Commission has said about what this special counsel is going to do.
Mr. BREWER. The entire Commission saw what I just read to you. It was attached to and circulated to the Commission along with these letters as time went on. I'm sure of that, sir.
Mr. CERRA. Mr. Chairman, perhaps I can add some light to that inquiry. After the Commission's report of November 5, 1971 had been made public, I was contacted by Mr. Fred Dolan, Mr. Curt Adams, our personnel director, and I can't remember whether there was anybody else, to determine from the Civil Service Commission whether it would be appropriate under these circumstances to let an individual contract insofar as we might consider persons who were on the retirement roles.
We went to see General Counsel Mondello and his staff of the Civil Service Commission and laid the facts of the 270 proceeding before him, and were seeking information to determine whether it was possible to carry out the intent of the Commission, and they assured us, so long as there was no individual control by the Commission or any Federal employee, that an individual sole-source type of contract was proper. They just did not want the Special Counsel to become a Government employee and to have all of the people that worked for him to be also Government employees.
Mr. DINGELL. All right, let us return. That still does not say that they had sanctified a sole source contract, or that you folks inside the Commission had before you the question of the sole source contract as you considered this matter.
Mr. STAFFORD. There was never any assumption that we would consider anything else.
Mr. ÞINGELL. I find myself hard put to think that you wouldn't be talking with four or five people at once instead of just sniffing around, talking to one person at a time. It just doesn't strike me as being good contract procedure. Mr. BREWER. May I speak to that, sir? Mr. DINGELL. Certainly. Mr. BREWER. Not argumentatively. Mr. DINGELL. But speak any way you want to. Mr. BREWER. Well, I don't want to because I respect your position.
In the first place, you can't talk to this kind of people two at a time. Suppose both of them accepted it. You've got to be talking to one person at a time because if the next person finds you're talking to someone else of that caliber the talks would break off completely.
Rightly or wrongly, it was my opinion, I think joined by the others, you had to be one on one until
your man. Mr. DINGELL. When I hire staff I talk to dozens of people before I hire an AA, dozens of people before I hire a legislative assistant, dozens of people before I hire a counsel for the subcommittee.
Mr. BREWER. In my business, if I needed an officer or a sales manager or something, I would place it in the Wall Street Journal, and I selected them that way, but it was our opinion you can't get that kind of an individual by advertising.
Mr. DINGELL. Well, all I'd do is say, fellows, I'm talking to somebody else.
Mr. STAFFORD. Well, I recall while we were in the process of conversing with the former Congressman, hopeful that he would take it, and finding that we were having to wait a little longer and a little longer for any definitive decision on his part, that the vice chairman spoke to me on several occasions and said, I just can't see any way out unless you can, that we just have to wait until he gives us a decision, and time is passing here.
Mr. DINGELL. I'm curious why at that point you weren't talking to four or five people.
Mr. STAFFORD. No; you can't do that. You start talking to two or three of this caliber of people and suddenly you get two of them, and that just won't work in the situation like this.
Mr. DINGELL. I've just got to say I can't believe that. I've never met a fellow who was offended about being talked to about a $60,000a-year job.
Well, Mr. Powers, you go ahead. I don't want to belabor this point anymore.
Mr. POWERS. All right.