Report of the Commission on Government ... - Bayhdolecentral

Legal and Administrative Remedies
prescribe <strong>the</strong> criteria to be followed. The
o<strong>the</strong>r restrictions and requirements contained
in Public Law 85-804 would continue to apply.
In proposing this extension <strong>of</strong> Public Law
85-804, we have considered <strong>the</strong> possibility
that excess!ve use <strong>of</strong> <strong>the</strong> authorities provided
in <strong>the</strong> act might undermine important requirements
<strong>of</strong> o<strong>the</strong>r statutes and sound procurement
policy. We believe this is highly unlikely in
view <strong>of</strong> <strong>the</strong> specific controls contained in <strong>the</strong>
act and <strong>the</strong> implementing regulations. A major
function <strong>of</strong> <strong>the</strong> act has been to compensate
for gaps in routine procurement authority
which inevitably arise, and its future utilization
should continue on this basis.
In eliminating <strong>the</strong> single objective <strong>of</strong> "facilitating
national defense," it also will be important
that criteria be established for certain
types <strong>of</strong> actions-such as amendments without
consideration in essentiality cases. We
believe <strong>the</strong>se criteria should be left to <strong>the</strong> regulations
prescribed by <strong>the</strong> President, and could
be developed by <strong>the</strong> Office <strong>of</strong> Federal Procurement
Policy.
Recommendation 23. Incorporate Public Law
85-804 into <strong>the</strong> primary procurement statute.
Maintaining Public Law 85-804 separate
from <strong>the</strong> primary procurement statutes seems
to serve no special purpose if <strong>the</strong> statute is
to have Government-wide application. Accordingly,
we believe <strong>the</strong> provisions <strong>of</strong> this act
should be integrated with <strong>the</strong> basic procurement
statute recommended in Part A, Chapter
3.
Dissenting Position:
Recommendations 21-23
One <strong>Commission</strong>er does not favor <strong>the</strong>se recommendations
for <strong>the</strong> following reasons:
The modification <strong>of</strong> a contract without consideration
is an extraordinary legal remedy
which reasonably should be limited to promoting
<strong>the</strong> national defense in time <strong>of</strong> emergency.
The settlement <strong>of</strong> breach <strong>of</strong> contract claims
would be possible under <strong>the</strong> broadened powers
available to <strong>the</strong> procuring agencies and administrative
disputes-resolving forums under
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Recommendation 5. There is already o<strong>the</strong>r provision
for correction <strong>of</strong> mistakes, and informal
commitments may generally be formalized by
<strong>the</strong> ratification <strong>of</strong> <strong>the</strong> commitment by an
authorized Government <strong>of</strong>ficial. While <strong>the</strong>se
actions may perhaps be handled somewhat
more expeditiously under <strong>the</strong> Public Law 85­
804 procedure, <strong>the</strong>re seems little purpose in
extending <strong>the</strong> duplication beyond <strong>the</strong> terms
<strong>of</strong> <strong>the</strong> present statute. The o<strong>the</strong>r available
actions under <strong>the</strong> law are generally also <strong>of</strong>
<strong>the</strong> type most appropriate for use within <strong>the</strong>
limits established by <strong>the</strong> present act.
<strong>Report</strong>s to Congress
Recommendation 24. Revise existing requirements
in Public Law 85-804 on reporting to
Congress.
Public Law 85-804 requires that completed
actions involving <strong>the</strong> exercise <strong>of</strong> <strong>the</strong> powers
provided for in <strong>the</strong> act be reported to Congress
annually." To keep Congress informed <strong>of</strong> <strong>the</strong>
expenditure <strong>of</strong> large sums <strong>of</strong> money pursuant
to <strong>the</strong> exercise <strong>of</strong> special management powers
we recommend that contracting agencies be
required to inform Congress prior to taking
any action that would obligate <strong>the</strong> United
States for an amount in excess <strong>of</strong> $1 million.
In all o<strong>the</strong>r instances we recommend that <strong>the</strong>
contracting agencies continue to make reports
to Congress about all actions taken under <strong>the</strong>
contractual fairness and special management
powers in <strong>the</strong> same manner as is now provided
in Public Law 85-804.
One <strong>Commission</strong>er believes $5 million represents
a more realistic figure for <strong>the</strong> threshold
reporting requirement to Congress.
Administration <strong>of</strong> <strong>the</strong> Authority
In defining <strong>the</strong> types <strong>of</strong> authority delegated
to contracting agencies by Public Law 85-804
and <strong>the</strong> situations in which that authority may
be used, <strong>the</strong> implementing regulations do not
ro50 u.s.c. § 1434 (1970).
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