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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: November 13, 2002

SUBJECT: Federal Acquisition Regulation (FAR); Procurement of Printing and Duplicating Through the Government Printing Office

SOURCE: Federal Register, November 13, 2002, Vol. 67, No. 219, page 68913

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Proposed Rule

SYNOPSIS: It is proposed that FAR Subpart 8.8, Acquisition of Printing and Related Supplies, be amended to implement the Office of Management and Budget (OMB) policy eliminating the requirement that agencies use the Government Printing Office (GPO) for printing services. Also, the proposed rule would insure that all government publications are made available to the nation's depository libraries.

DATES: Comments are due on or before December 13, 2002.

ADDRESSES: Submit comments to General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405, or by e-mail to farcase.2002-011@gsa.gov. Cite "FAR Case 2002-011" in all correspondence related to this proposed rule.

FOR FURTHER INFORMATION CONTACT: Linda Nelson, 202-501-1900.

SUPPLEMENTAL INFORMATION: This proposed rule is the product of a Constitutional "separations of power" conflict -- just like those described in high school textbooks. The GPO is a congressional entity that was originally created to fulfill the printing needs of Congress. However, since 1895, Congress has expanded the role of GPO by enacting legislation requiring that almost all executive branch printing and binding be done by or through GPO (Title 44 of the U.S. Code (U.S.C.), Section 501, Government Printing, Binding, and Blank-Book Work to be Done at Government Printing Office).

OMB has been of the opinion that this is an unconstitutional violation of the separations of power doctrine, and it has tried to have legislation enacted to remove the requirement to use GPO, without success. Finally, on May 3, 2002, OMB Director Mitchell Daniels, Jr., issued Memorandum M-02-07, "Procurement of Printing and Duplicating through the Government Printing Office," in which the Director cited a 1996 Department of Justice (DOJ) opinion that "Congress could not constitutionally obligate Executive Branch departments and agencies to utilize GPO" (emphasis in original). The Director declared, "The time has come for the Executive Branch to liberate its agencies from a monopoly that unfairly penalizes both taxpayers and efficient would-be competitors." He justified his decision by stating, "In FY [fiscal year] 2001, GPO charged federal departments and agencies $553 million for printing and duplicating. The vast majority of these costs, however, were for work that GPO contracted out to the private sector. Indeed, in FY 2001, GPO performed only 16% of this printing work in-house, and contracted with private printing enterprises for the remaining 84%." The Director concluded his memorandum by stating, "OMB is recommending that the Federal Acquisition Regulation Council amend 48 CFR [FAR] Subpart 8.8 to reflect this policy."

Nonetheless, several legislators who oversee GPO opposed this action, and included language in Section 4 of the Continuing Resolution for FY 2003 (Public Law 107-240) requiring that funds be used in accordance with 44 U.S.C. Section 501. However, DOJ issued an opinion on October 22, 2002, in which it concluded that this language, like other statutory provisions compelling the executive branch to use the GPO, is an unconstitutional infringement upon executive branch powers and is not binding. Therefore, the FAR Council is moving forward by publishing this proposed rule to implement the policy enunciated in the OMB memorandum.

FAR Subpart 8.8 would be completely rewritten. The most obvious change would be the removal of the requirement that agencies use GPO exclusively for printing and related supplies. The main provision of the rewritten FAR Subpart 8.8 would be FAR 8.801, Policy, which would include these significant changes:

In addition, the FAR Council is considering whether the FAR should include a clause that contracting officers would be required to insert in contracts for the printing of government publications where a contractor will assist the government in ensuring GPO receives a copy of the publication. A clause might read as follows:

Information Distribution (Date)
      To assist the government in ensuring effective distribution of government publications printed under this contract, the contractor shall submit one copy of each government publication, as identified by the government in the contract, to the Superintendent of Documents from the Government Printing Office. Transmission shall be made using electronic means unless such means are unavailable.

Comments are invited on the need for an information distribution clause.

Finally, in addition to the new FAR coverage, OMB says it will take steps to address the "fugitive document" problem -- those government documents that never make their way to the Superintendent of Documents (as many as 50% of government documents, by some estimates). Among other things, agencies will be required, as part of their reporting on printing, to report to OMB on compliance with their obligation to make information available to the public, including through the FDLP. This requirement will be included in OMB guidance. OMB, in consultation with interested parties, will also determine whether current policies or practices related to the publication of government information need to be changed to ensure maximum possible reliance on distribution in cost-effective electronic formats.

EDITOR'S NOTE: It may seem odd to see constitutional issues waged over federal procurement procedures, but constitutional issues are where you find them. In fact, there was a similar instance involving federal procurement procedures and the separations of powers doctrine not too long ago. The Competition in Contracting Act of 1984 (CICA), which is the foundation for the FAR, gave the General Accounting Office (GAO) the authority to declare an interested party to be entitled to costs of pursuing its protest against actions taken during a solicitation. The problem was that GAO is a congressional entity, just like GPO, so GAO was directing federal agencies in the executive branch to pay successful protestors. In 1991, the DOJ filed a suit involving a protest against a Department of Commerce solicitation in which GAO ruled in favor of the protesters and directed the Department of Commerce to pay their protest costs. However, the FAR was revised a few months after the DOJ suit was filed to provide that GAO "may recommend" the payment of protest costs, and a month later the Defense Authorization Act of 1992 revised the CICA provision similarly. These actions averted the "constitutional crisis," so the court dismissed the DOJ suit.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2002 by Panoptic Enterprises. All Rights Reserved.

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