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Mr. Chairman, did you have any specific knowledge of these matters or are you just appearing here as knowledgeable.
Ms. Dalgleish, raise your hand.
Do you solemnly swear to tell the truth, the whole truth and nothing but the truth?
Ms. DALGLEISH. I do.
Do you swear to tell the truth, the whole truth and nothing but the truth?
Mr. WILSON. I do.
Mr. Wilson. I am not a contracting officer because I do not have at this time a warrant as a contracting officer.
Mr. DINGELL. You don't?
Mr. Wilson. In order to be a contracting officer you have to have a warrant from a person who is authorized to delegate that authority to you to legally bind the U.S. Government and in my position in NASA I am not in a position of having to sign contracts.
Mr. DINGELL. You are at NASA. You had better give our reporter your full name, please, sir.
Mr. WILSON. Wilbur A. Wilson.
Mr. DINGELL. Yes. Your position at NASA first, and then you can make any statement within the bounds of this hearing.
Mr. Wilson. My position in NASA is that I am in the Office of Industry Affairs and Technology Utilization, Procurement Office.
Mr. ČONTE. Speak up.
Mr. WILSON. I am in the Office of Industry Affairs and Technology Utilization and in the Procurement Office of that group.
Mr. DINGELL. You may make any comment you would want to make.
Mr. WILSON. I would like to read this overall statement for the record before I would answer questions. I think it would be very helpful.
Mr. DINGELL. You may proceed.
Mr. Wilson. My name is Mr. W. A. Wilson. I work for the National Aeronautics and Space Administration, Office of Industry Affairs and Technology Utilization in the Procurement Office.
I believe it would be helpful to this committee to know the extent of my participation in assisting the Interstate Commerce Commission in obtaining contract coverage for services they required in connection with the Commission's investigations of the railroad freight rate structure, freight services, and rate base and rate of return in Ex parte 270 and related cases.
In April of 1972, the Interstate Commerce Commission made a request to the Associate Administrator for Industry Affairs and Technology Utilization, NASA Headquarters, for assistance to the ICC in their contracting for certain services needed in connection with the foregoing ex parte cases. Since the ICC had not in the past entered into negotiated contracts and because of the complexities of negotiated procurement procedures, the ICC considered some expert assistance necessary in order to contract for their urgent requirements as expeditiously as possible.
Accordingly, I was assigned to assist the Commission in their contracting effort.
At that time, the Commission was seeking to place three contracts, these being a contract for economic studies, a contract for special counsel, and a contract for a railroad freight services study, all of these related to Ex parte 270 cases.
The contract for economic studies was awarded after wide competition and selection of a contractor by a source selection board after approval on a no objection basis by the Commissioners.
In January 1973, the Commission decided to enter into negotiations with Senator Allott to perform services of special counsel. Negotiations were undertaken. A letter contract was written and entered into with Senator Gordon Allott on February 26, 1973.
My participation in the two matters mentioned above was confined to preparing the necessary requests for proposal, negotiating and writing the contracts which would best serve the Commission's needs based on their requirements, work statements, justifications, and determinations as furnished by the Commission staff.
In this assignment, I performed the duties of a procurement specialist as opposed to management functions. Mr. DINGELL. Does that complete your statement? Mr. Wilson. Yes, sir.
Mr. DINGELL. Let's return to this business of determination and findings.
The written determination and findings were signed on March 6, 1973, by Elizabeth K. Dalgleish; is that correct?
Ms. ĎALGLEISH. That is right.
Mr. DINGELL. There was never any signed document of this kind previous to that date; am I correct?
Ms. DALGLEISH. That is correct.
Mr. DINGELL. I am directing this to Chairman Stafford and Mr. Brewer; but we will recognize you in just a minute, young lady.
Is that correct?
Mr. DINGELL. Now, as I read the FPR's, they explicitly require that an acceptable determination and finding be signed prior to negotiations. The citation to that is 1-3.306; isn't that correct?
Mr. CERRA. 306.
Mr. CERRA. That is only in cases where you have to issue a request for proposals. The statute that you read, the regulations that you read so provide, sir. We issued no request for proposals for the contract for special counsel.
Mr. POWERS. Before we get on here, I would like to call attention to a few sections of the Federal procurement regulations, counsel, and see if you can distinguish those for us.
In 1-3.101, there are set out general requirements for negotiations. Paragraph (b) says:
No contract shall be entered into as a result of negotiations unless or until, (1) the contemplated procurement comes within an exception; (2) any necessary determinations and findings have been made.
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 me 1-3.210(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. Contr. 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 transportatio. a. Mr. Wilson. I am completely unaware of that.
i Mr. CONTE. I am sure they are not going to put a rapid tran si 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. I low 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 NASA.
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 Di ngell.