U.S. Office of Special Counsel:

Selected Contracting and Human Capital Issues

GAO-06-16: Published: Nov 17, 2005. Publicly Released: Dec 19, 2005.

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In January 2005, the U.S. Office of Special Counsel (OSC) implemented a plan, in part, to address a backlog of pending cases. This report discusses actions related to the development of this plan, including whether required practices and procedures were followed in contracting for the services of a management consulting company and in hiring an intermittent employee as a consultant. Also, the report identifies avenues of redress available to OSC employees for filing prohibited personnel practice allegations against OSC, and other redress options that could be made available.

At OSC's request, the Administrative Resource Center (ARC), an office within the U.S. Department of the Treasury's Bureau of the Public Debt which provides OSC with contracting support for a fee, issued a $140,000 sole-source task order for an organizational assessment to a consulting firm, Military Professional Resources, Inc. (MPRI). In doing so, several required steps were not taken: competition was not sought among Schedule vendors and there was no convincing demonstration of why a sole-source order was necessary; the determination of the reasonableness of MPRI's price was not documented; and OSC officials performed duties normally done by contracting officer's representatives without authorization or training and, further, performed other duties that should have been reserved for the contracting officer. ARC officials told us they relied largely on OSC's input in justifying the sole-source order and determining MPRI's price to be reasonable and that they were unaware that the OSC officials had performed contracting-related duties. They told us that they are now paying particular attention to requests from their customers, including OSC, for sole-source orders. OSC officials said that they relied on ARC's expertise, as their contracting office, to ensure that proper contracting procedures were followed. The tasks specified in the statement of work for the consultant that OSC hired as an intermittent employee and that he completed before his departure were consistent with Office of Personnel Management criteria for appropriate uses of expert and consultant appointments. The intermittent employee was tasked with two major lines of work related to efficiency and curriculum development. OSC management expressed confidence in the individual's qualifications and was within its discretion to both hire him and set his level of compensation. While OSC employees, like other federal employees, are protected against prohibited personnel practices and may seek redress from OSC in making such allegations, this option becomes unworkable because of potential conflicts of interest when an OSC employee raises such an allegation of a prohibited personnel practice against either of the two top OSC officials. Two other federal agencies with redress roles, the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission, have taken steps to address potential conflicts of interest when their own employees use their agency's respective redress processes. Steps could be taken to ensure that OSC employees have alternative avenues of recourse; for example, they could have an external investigation conducted through an independent body or broader appeal rights to the MSPB. OSC could not independently implement these options, and would need to be given authority to do so.

Matter for Congressional Consideration

  1. Status: Closed - Implemented

    Comments: In late September 2008, Congress added language to the Inspector General Reform Act of 2008, H.R. 928, to establish by statute the Council of the Inspectors General on Integrity and Efficiency and within the Council to establish an Integrity Committee. The bill also provides that an allegation of wrongdoing by the Special Counsel or Deputy Special Counsel may be referred to the Integrity Committee. H.R. 928 was signed by the President on October 14, 2008, Public Law 110-409.

    Matter: Due to the unique nature of OSC and the difficulties involved when a prohibited personnel practice allegation is made against the Special Counsel or the Deputy Special Counsel, Congress may wish to consider affording OSC employees (and former employees and applicants for employment) alternative means of addressing prohibited personnel practice allegations other than going through OSC. These means could include establishing (1) a right to an external investigation through an independent entity, where the entity would forward its findings to the President, who would decide the appropriate action, as is done when OSC handles allegations of prohibited personnel practices against Senate-confirmed presidential appointees; or (2) an expansion of the personnel actions that could be the basis for an appeal directly to the MSPB.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In commenting on our draft report, OSC agreed with our recommendation. In a June 14, 2007, letter from OSC's Deputy Special Counsel providing an update on actions the agency has taken on our recommendations, OSC stated that the agency has re-designed the contracting procedures. For example, OSC no longer uses the Bureau of Public Debt (BPD) for outsourced procurement services and has since brought the function in-house. In this regard, OSC stated that it has hired a fully trained Contract Officer, with a warrant from the head of the agency. The software platform, PRISM, previously used for entering contracts is no longer at BPD; rather, OSC uses an Oracle platform hosted by it new accounting provider, the National Business Center. According to OSC, its Contract Officer has taken courses of intermediate to advanced contracting-related training from June 2000 to June 2007. Further, OSC stated that the Contract Officer, located at headquarters, has full oversight over the agency's contracts and actively monitors them, unlike under the previous system where the contract officer with BPD was located in West Virginia while the services being performed under contract were here in Washington, DC. In addition to the Contracting Officer, OSC has three other individuals on staff who have received COTR training and, according to OSC, the Contracting Officer will sometimes appoint one of the COTRs to specific tasks related to a specific contract. According to OSC, given the reduced role of the COTRs in the agency's newly designed procurement function, there are no new policy guidance or directives related to the role of the COTRs. However, when the Contract Officer designates a COTR for a certain contract, he explicitly states in detail in a letter to the COTR the duties and responsibilities of the COTR with regard to that contract, as well as things the COTR may not do regarding the contract.

    Recommendation: The Special Counsel should put in place procedures to ensure that only those officials who have taken the required training and been designated as contracting officer's representatives act in that role and that program staff do not exceed their authority in interacting with contractors.

    Agency Affected: Office of Special Counsel

  2. Status: Closed - Implemented

    Comments: In January 2006, in response to our recommendation, the Commissioner of BPD stated ARC's concurrence with our recommendation and, based on our findings, said that they have dedicated a compliance team to ensure that competition requirements receive an enhanced degree of consideration. ARC officials added that they have become more vigilant in reviewing contract documents. In addition, the ARC Procurement Director must now approve all sole-source procurement actions.

    Recommendation: The Director of ARC's Division of Procurement should ensure that documents prepared by program offices requesting contracting assistance--such as statements of work and sole-source justifications--are carefully reviewed for compliance with competition requirements.

    Agency Affected: Department of the Treasury: Bureau of the Public Debt: Administrative Resource Center

  3. Status: Closed - Implemented

    Comments: In January 2006, in response to our recommendation, the Commissioner of BPD stated ARC's concurrence with our recommendation and, based on our findings, said that they have dedicated a compliance team to ensure that competition requirements receive an enhanced degree of consideration. ARC officials added that they are ensuring that only authorized personnel are participating in the administration of contracts.

    Recommendation: The Director of ARC's Division of Procurement should ensure that ARC contracting staff, through regular communication with the program offices they support, ensure that only authorized program officials act as contracting officer's representatives.

    Agency Affected: Department of the Treasury: Bureau of the Public Debt: Administrative Resource Center

 

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