ML20217C500
| ML20217C500 | |
| Person / Time | |
|---|---|
| Issue date: | 06/28/1991 |
| From: | Carr K NRC COMMISSION (OCM) |
| To: | Dingell J HOUSE OF REP., ENERGY & COMMERCE |
| Shared Package | |
| ML20217C504 | List: |
| References | |
| NUDOCS 9107170131 | |
| Download: ML20217C500 (31) | |
Text
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(INITED STATES
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NUCLEAR REGULATORY COMMISSION re WASHING T ON, D, C. 20004 June 28, 1991 CHAIRMAN The Honorable John D. Dingell, Chairman Committee on Energy and Commerce U.S. House of Representatives Washington 0.C 20515
Dear Mr.-Chairman:
1 This is in response to your letter of June 6,1991,-requesting the views of the Nuclear Regulatory Commission (NRC) on the amendment to the National Defense Authorization Act for fiscal Years 1992 and 1993 regarding federal contract-administration (H.R. 2100, section 815).
This provision wot'Id repeal several post-employment statutes pertaining to the
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Department of Defense and amend the " Procurement Integrity" law (40 U.S.C. 401 et seq.) to restrict the activities of federal contract officials and contractors following the-award of a contract.
Under this provision, during l
the period of the administration of a contract, the particular contractors i
involved would be prohibited from offering or discussing future employment with federal contract officials involved in_the management or administration i
of the. contract and from promising or giving those officials a gift or anything of monetary.value.
The provision imposes corresponding restrictions-on federal contract ~ officials and authorizes administrative and civil penalties for violations. -There are procedures which would permit Federal officials to. recuse themselves from matters relating to the contract in Grder to engage in-employment discussions otherwise barred. Agencies would be required.to train their contract officials on these restrictions.
Contract officials would be required to certify that they are familiar with the.
restrictions and would report to the contracting officer any information concerning possible violations.
i The NRC strongly favors protecting the integrity of the government procurement
. process.
However, the NRC opposes the provisions of the amendment to H.R._2100 relating to federal contract administration.
It is our conviction j
thtt current laws and regulations adequately guard against unfair advantage.
and unethical uehavior in government contracting.
The additional restrictions on Federal procurement rfficers and certifications that would be required under this amendment are not only. unnecessary and duplicaUve of legal restrainte already in place ( but would also create uncertainty'and confusion, it has also been the experience of the NRC that the administrative-burden of implementing the Procureent Integrtty Act has not been cost beneficial, especially 'with respect to the artifications that_ are required.
Horsover, our experiencs With the current law indicates that each time additional restrictions are imposed, there is a reluctance on the' part of some employees to.eigage in r m activitics covered by the restrictions-Additional restrictions also undermine our efforts to recruit and retain employees.
9107170131 910528 PDR COMMS NRCC CORRESPONDENCE PDR
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The NRC also wottId oppose extending to this agency the provisions of statutes, such as 10 U.S.C. 2397b and 2397c, which restrict the activities of former Defense Department procurement officials.
The post-employment restrictions in
'i 18 U.S.C. 207, which apply to all former Federal employees, adequately prohibit former NRC procurement employees from trading on their former positions with agency contractors, vendors, or licensees. We would note that the Title 10 provisions would have little or no impact on the NRC because a very small proportion of the agency's contracts with any individual contractor or firm exceeds $10 million.
Enclosed are our responses to your specific questions.
Sincerely, Kenneth M. Carr
Enclosure:
As Stated cc: The Honorable Norman F. Lent (w/encsl) 4 i
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P RESPONSE TO QUESTIO!!S 1.
Please explain how and to what extent this amendment will affect contract administration of your agency and provide any estimates of costs and the basis for those costs.
If you believe there is no need for the provisions in the enclosed amendment at your agency or that they would be onerous, please explain the basis for your view and provide concrete reasons.
To what extent has your agency examined this revolving door problem?
What, if any, rules apply now?
Has this situation arisen over the lar fiscal year?
Please explain.
Resoonset The Commission believes that 18 U.S.C.
208 already provides adequate restrictions on the negotiation by government contract officials for private sector employment.
It is our understanding that the Office of Government Ethics in the coming year will be promulgating detailed regulations that should provide sufficient guidance to Federal employees regarding the proper relationship with contractors.
The current accurement Integrity Act has imposed adminictrative burdens on t;-3 agency, in large part attributable to the various certification requirements.
Implementation of the Act has required considerable effort by our contracts and legal staff in training and responding to inquiries from technical staff, preparir[ written guidance, and complying with the record-keeping requiremants for identifying procurement officials and ensuring receipt of the required certifications.
The certification requirements, coupled with additional post-employment restrictions, have resulted in numerous agency employees requesting that they not be asked to perform procurement functions.
The proposed legislation would exacerbate the problems created by the Procurement Integrity law.
It would create a classification called " contract official" who must make certain certifications much like the current " procurement official" does under current law.
Since in all likelihood these categories would encompass many of the same NRC staff, this legislation would prove to to both confusing and redundant.
Although the NRC hLa never conducted a review of the " revolving door" between agency employees and contractors, there have been few instances in recent years where it has been alleged that current or former NRC employees have violated statutory requirements in the procurement area.
This may be attributable to our eff7'tive_ program of informing agency employees regarding pertinent conflict of interest requirements as well as the policy we have adopted add,essing non-competitive contracts between this
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Questions of John D. Dingell 2
agency and former NRc employees.
A copy of that policy is enclosed.
2.
Please review each definition and explain how they apply to l
your agency's contracting, particularly the use of primo and umbrella type contracts, like those used by the Environmental
- Protection Agency (EPA) and the Energy Department.
I am particularly concerned about learning the extent of application of the requirements of the enclosed memorandum to personnel who might be a " contract official administering a contract" at your agency.
How, for example, would this affect the Health agencies?
Rosconset The definitions in the amendment are consistent with the terminology. currently used in NRC's contract administration program.
The prohibitions and requirements in the legislation would apply to officials administering both primo and umbrella type (i.e. task order) contracts.
3.
Please explain how and to what extent the amendment affects i
unsolicited awards.
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Rosconser t
This legislation would have no apparent effect on unsolicited proposals prior to the award of a contract.
After award of a contract, the effect would be the same as for any other contract type.
4.
I am concerned about vagueness in the provisions, such as the meaning or scope of such words as " discussion" (in Section 28(a)(1)(B)) and " contact" (in Section 28(b)).
I request your comments.
Response!
We agree that these terms are somewhat vague. They should be clarified in the statute, or the Office of Federal Procurement Policy should be directed to give additional guidance on the-meaning of the terms in its impicmenting regulations.
5.
Please examine the recusal provisions and provide your views on their need, effectiveness, and workability for your agency.
What information do you have about the extent of contacts by contractors and subcontractors regarding future employment, including contacts by laboratories, universities, and others?
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Dingell 3
Resconsor The recusal provisions appear to be workable and wi]l accomplish the apparent purpose of the 1cgislation.
The NRC does not formally collect data regarding employment contacts between NRC employees and agency contractors.
The extent to which we have information regarding such contacts leads us to believe that this is not a significant problem for this agency.
6.
Please comment on new Section 28(c), (d), (c), and (f) and explain their impact on your agency.
Who enforces civil penaltics?
Bosnonser To the best of our knowledge, to date there have been no violations of the proposed provisions by agency employees.
Based on this experience, we anticipate the impact of these provisions to be minimal.
We also are unaware of any requests for ethics advice of the type described in Section 28(f).
Assignment of enforcement rcsponsibility for civil penalties depends on the dollar amounts involved.
The enforcing agency for violations by NRC employees or contractors would be the Department of Justice or the NRC if the violation occurred under the Program Fraud Civil Remedies Act (5 U.S.C.
App.).
7.
I am concerned about the adequacy of time allotted for issuance of regulations and for implementation, and the reasonableness of the effective date.
Your views are requested.
Response
This amendment is consistent with Section 27 of the Procurement Integrity Act in format, structure and language.
Therefore, it should be a relatively straightforward process to implement the proposed provisions.
We believe the time allotted Ior issuance of regulations and for formal implementation is reasonable.
Enclosure:
Attachment
ATTACHMENT 1 NRC MANUAL CHAPTER 5101. SECTION 064(C) - EXCERPT Noncompetitive Contracts Between NRC and Former NRC Employees.
Contracts will not nomally be placed on a noncompetitive basis with any individual who was employed by NRC within two years of the date of the request for procurement action, or with an employee is a partner, principal officer, y fim in which such a former majority shareholder, or which is otherwise controlled or predominantly staffed by such former employees, unless it is detemined to be in the best interest of the Government to do so.
This restriction also applies to former NRC employees acting as a principal under a task type contract arrangement or as a principal under a contract awarded under the Small Business Administration's 8(a) Program.
This policy shall also be applied when reviewing subcontracts for the purpose of granting consent under NRC prime contracts.
Justifications explaining why it is in the best interest of the Government to contract with an individual or firm described in paragraph (1) above on a noncompetitive basis may be approved by the Procurement Executive after consulting with the Executive Director for Operations or his designee.
This is in addition to the justification and any approvals required by the Federal Acquisition Regulation for use of other than full and open competition.
Nothing in this policy statement shall be construed as relieving fomer employees from obligations prescribed by law, such as 18 U.S.C. 207, Oisqualification of Fomer Officers and Employees.
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