Act of 1921 (31 U.S.C. §§44,71,72,74), the Comptroller General is acting in an executive capacity but free of any direction or control by the executive departments as provided in Section 301 of the Budget and Accounting Act of 1921 (31 U.S.C. §41) and not as a legislative officer or agent of Congress as in conducting the auditing function under the Accounting and Auditing Act of 1950 (64 Stat. 834, 31 U.S.C. §§65-67).· For these reasons, we strongly support the enactment of Title VII with the modifications indicated as assuring the more effective performance of the protest adjudication function in the public interest than the Comptroller General is able to do without the authority that Title VII would provide. In short, he needs these tools to do the job well and we ask that you provide them. In conclusion, we particularly want to applaud Senator Chiles and his staff for including a requirement for price analysis and a constructive way for eliminating a portion of the excessive surveillance now imposed upon the private sector. Both of these major improvements to the procurement process will reduce costs to the taxpayer and will serve the public interest. Thank you, Mr. Chairman, for this opportunity to present the position of the American Bar Association. We will be glad to discuss any questions you may have now or with the Subcommittee staff at a later date. RESOLUTION APPROVED BY THE AMERICAN BAR ASSOCIATION AMERICAN BAR ASSOCIATION REPORT TO THE BOARD OF GOVERNORS SECTION OF PUBLIC CONTRACT LAW RECOMMENDATION The Section of Public Contract Law hereby recommends that the Board of Governors of the American Bar Association approve the following resolution for appropriate transmittal to Congress: BE IT RESOLVED, That the American Bar REPORT BACKGROUND S.1264, introduced by Senator Lawton Chiles of Florida, a copy of which is attached, would consolidate into one statute more than one thousand different statutes relating to procurement, and, in addition, would modernize Federal procurement law. It furthermore would introduce several innovative concepts which Senator Chiles and others believe would effect great economies and improvements in the procurement system. S. 1264 is a modification of S.3005 which was introduced by Senator Chiles last year but which remained unenacted at the close of the 1976 legislative session. With few exceptions, the bill is concerned with the machinery, procedures and safeguards of procurement. It deals primarily and almost exclusively in types of matters with which members of the Public Contract Law Section, in practice either for the Government or as members of the private bar, have had a great deal of experience. The bill, because of its breadth, also presents difficult problems of draftsmanship with respect to which the continuing advice and assistance of members of the Section of Public Contract Law would be useful. This is particularly so as indicated by the proposed amendments listed as desirable in later sections of this report. The Council of the Section, at its May 1976 meeting, spent parts of two days reviewing the provisions of S.3005 and discussing its terms with a representative of Senator Chiles' office. The process was repeated for part of a day at its February 1977 meeting with regard to what has now become Title VII of S.1264, again for part of a day with regard to newly introduced S.1264 at its April 1977 meeting, and finally the entirety of S.1264 at a special meeting in June 1977. As a result, a special committee of the Section prepared this report which is representative of the views considered at the Council meeting and sheds light on the matters on which amendment is desired or on which the help of the Section to the Congress may be warranted. We understand that Senator Chiles and the staff of the Subcommittee on Federal Spending Practices, Efficiency and Open Government are desirous of having the Section continue to work actively with them in further refinement of the measure and that they may be amenable to certain of the detailed amendments set forth later herein. In August 1976, the House of Delegates approved a resolution endorsing S.1264's predecessor bill, S.3005, in principle, stating as follows: BE IT RESOLVED, That the American Bar The proposed resolution has been developed to be continuingly responsive to the assistance sought by Senator Chiles and the Subcommittee Staff on S.1264. The supporting rationale for each of the elements of the proposed resolution, including recommended amendments thereto, is set forth below. Where an adjustment previously recommended has been made or a change has been made for some other purpose, only a one sentence acknowledgment is indicated in the report. The policy sections are generally the same except for Section 2. (b) (1), (5) and (7). The Section generally agrees with the Policy Section. SECTION 3 - DEFINITIONS This section has been entirely changed and the Section generally agrees with the definitions. Of particular significance, the term "acquisition" has been defined to include such related functions as determination of the particular public need; solicitation; selection of sources; award of contracts; contract financing and contract perform ance. Section 3. (b) limits the application of the statute to an "executive agency" which is defined by Section 101 of Title V United States Code, an independent establishment as defined by Section 104 of Title V U.S.C. (except that the GAO is omitted), a military department as defined by Section 102 of Title V U.S.C. and the United States Postal Service. RECOMMENDATION It is recommended that all non-appropriated fund REASONS FOR RECOMMENDATION 1. If the statute which will be the basis for all procurement regulations is to regulate all federal acquisition, then clearly all federal acquisition should be encompassed by the statute. 2. 3. Only grants should be excluded. The Section Only those regulations receiving the endorsement |