L. Elaine Halchin
Specialist in American National Government
An other transaction (OT) is a special vehicle used by federal agencies for obtaining or advancing research and development (R&D) or prototypes. An OT is not a contract, grant, or cooperative agreement, and there is no statutory or regulatory definition of “other transaction.” Only those agencies that have been provided OT authority may engage in other transactions.
OT authority originated with the National Aeronautics and Space Administration (NASA) when the National Aeronautics and Space Act of 1958 was enacted. Subsequently, seven other specific agencies have been given OT authority: the Department of Defense (DOD), Federal Aviation Administration (FAA), Department of Transportation (DOT), Department of Homeland Security (DHS), Transportation Security Administration, Department of Health and Human Services, and Department of Energy. Other federal agencies may use OT authority under certain circumstances and if authorized by the Director of the Office of Management and Budget (OMB).
Generally, the reason for creating OT authority is that the government needs to obtain leadingedge R&D (and prototypes) from commercial sources, but some companies (and other entities) are unwilling or unable to comply with the government’s procurement regulations. The government’s procurement regulations and certain procurement statutes do not apply to OTs, and, accordingly, other transaction authority gives agencies the flexibility necessary to develop agreements tailored to a particular transaction. The Competition in Contracting Act (CICA), Contract Disputes Act, and Procurement Integrity Act are examples of three statues that do not apply to OTs.
Evaluating OTs and the use of OT authority is a challenging undertaking. Because the Federal Acquisition Regulation (FAR) and certain procurement statutes do not apply to OTs means that the methods or mechanisms used to track contractor performance and results also do not apply. Additionally, the types of activities, functions, and outcomes associated with other transactions cannot be easily measured for the purpose of evaluation. It does not appear that anyone has yet devised a reliable method for conducting an evaluation that would yield quantifiable, objective data.
Evidence of congressional interest in the use of other transaction authority includes the expansion of OT authority over the years (as noted above), and a 2008 congressional hearing on the Department of Homeland Security’s use of OT authority.
Date of Report: July 15, 2011
Number of Pages: 37
Order Number: RL34760
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Jeanne J. Grimmett
Legislative Attorney
States and localities have at times proposed or enacted measures restricting their agencies from conducting economic transactions with firms that do business with or in foreign countries whose conduct the jurisdictions find objectionable. While some maintain that sub-federal entities may enact such laws under sovereign proprietary powers and other constitutional prerogatives, others argue that such statutes impermissibly invade federal commerce and foreign affairs authorities and in some cases may be preempted by federal law. In 2000, the U.S. Supreme Court unanimously held in Crosby v. National Foreign Trade Council that a Massachusetts law restricting state transactions with firms doing business in Burma was preempted by a federal Burma statute. In American Insurance Association v. Garamendi, a 2003 case, the Court reaffirmed the relevance of the dormant federal foreign affairs power to preempt state law, but the scope of the 5-4 decision is unclear.
Due to the troubled situation in Darfur, a number of states have proposed or enacted some type of divestment legislation against Sudan. States have also considered or adopted divestment legislation involving Iran and terrorist states in general. In February 2007, a federal district court held Illinois’s Sudan sanctions law unconstitutional and permanently enjoined its enforcement (National Foreign Trade Council v. Giannoulias). Illinois subsequently repealed its statute, and the state’s appeal in the case was dismissed as moot in November 2007.
Congress considered and enacted legislation in the 110th and 111th Congresses to authorize states to divest assets involving Sudan and Iran. The Sudan Accountability and Divestment Act of 2007, P.L. 110-174, enacted into law December 31, 2007, authorizes states and local governments to adopt divestment measures involving (1) federally identified persons with investments and business in the Sudanese energy and military equipment sectors or (2) persons having a direct investment in or carrying on a trade or business with Sudan or the Government of Sudan, provided certain notification requirements are met. The Comprehensive Iran Sanctions, Accountability, and Divestment Act, P.L. 111-95, enacted into law on July 1, 2010, includes provisions authorizing state and local governments to divest from businesses making investments of $20 million or more in Iran’s energy sector after adequate investigation and notification have occurred. Both laws provide that a measure falling within the scope of the authorization is not preempted by any federal law or regulation.
Date of Report: July 15, 2011
Number of Pages: 17
Order Number: RL33948
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Kate M. Manuel
Legislative Attorney
Competition in federal procurement contracting has become a topic of increased congressional and public interest, in part because of alleged misconduct involving noncompetitive contracts and reports that the number of noncompetitive contract actions has increased. President Obama also emphasized competition in his March 4, 2009, memorandum on government contracting. Additionally, prominent officials within the Department of Defense (DOD), which accounts for some 70% of federal procurement spending per year, have expressed their commitment to reducing DOD’s use of noncompetitive contracts.
The Competition in Contracting Act (CICA) of 1984 generally governs competition in federal procurement contracting. Any procurement contract not entered into through the use of procurement procedures expressly authorized by a particular statute is subject to CICA. CICA requires that contracts be entered into after “full and open competition through the use of competitive procedures” unless certain circumstances exist that would permit agencies to use noncompetitive procedures. Full and open competition can be obtained through the use of sealed bids, competitive proposals, or other procures defined as competitive under CICA (e.g., procurement of architectural or engineering services under the Brooks Act). Full and open competition under CICA also encompasses “full and open competition after exclusion of sources,” such as results when agencies engage in dual sourcing or set aside acquisitions for small businesses.
Any contract entered into without full and open competition is noncompetitive, but noncompetitive contracts can still be in compliance with CICA when circumstances permitting other than full and open competition exist. CICA recognizes seven such circumstances, including (1) single source for goods or services; (2) unusual and compelling urgency; (3) maintenance of the industrial base; (4) requirements of international agreements; (5) statutory authorization or acquisition of brand-name items for resale; (6) national security; and (7) contracts necessary in the public interest. CICA also allows agencies to use “special simplified procedures” when acquiring goods or services whose expected value is less than $150,000, or commercial goods or services whose expected value is less than $6.5 million ($12 million in emergencies).
Issuance of orders under task order and delivery order (TO/DO) contracts is not subject to CICA, although award of TO/DO contracts is. However, the Federal Acquisition Streamlining Act (FASA) of 1994 established a preference for multiple-award TO/DO contracts; required that agencies provide contractors “a fair opportunity” to compete for orders in excess of $3,000 under multiple-award contracts; and authorized the Government Accountability Office (GAO) to hear protests challenging the issuance of task or delivery orders that increase the scope, period, or maximum value of the underlying contract. The National Defense Authorization Act (NDAA) for FY2008 further limited the use of single-award TO/DO contracts. It also specified what constitutes a “fair opportunity to be considered” for orders in excess of $5.5 million under multiple-award contracts and granted GAO jurisdiction to hear protests of orders valued in excess of $10 million. While the provision authorizing GAO to hear such protests regarding the orders of civilian agencies sunset in May 2011, GAO recently found that it has jurisdiction over these protests because the NDAA for FY2008 amended FASA to provide that all limitations on GAO’s jurisdiction over task and delivery order protests expired in May 2011, not just its authority over protests of task and delivery orders valued in excess of $10 million. The 111th Congress enacted legislation extending the sunset date for GAO’s jurisdiction over protests of orders valued in excess of $10 million issued by defense agencies until September 30, 2016 (P.L. 111-383, §825).
Date of Report: June 30, 2011
Number of Pages: 32
Order Number: R40516
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
R. Eric Petersen
Specialist in American National Government
Members of Congress are authorized by law to nominate candidates for appointment to four U.S. service academies. These schools are the U.S. Military Academy, the U.S. Naval Academy, the U.S. Air Force Academy, and the U.S. Merchant Marine Academy. The fifth service academy, the U.S. Coast Guard Academy, does not require a congressional nomination for appointment. These institutions prepare college-age Americans to be officers of the United States uniformed services. Upon graduation, service academy graduates are commissioned as officers in the active or reserve components of the military or merchant marine for a minimum of five years.
The nomination of constituents to one of the service academies can provide Members of Congress with the opportunity to perform community outreach and other representational duties. In some states and congressional districts, nominations are highly competitive. Others are less competitive, and some offices do not receive expressions of interest from enough applicants to fill the number of nominations allocated. Consequently, some congressional offices might need to dedicate considerable staff resources to the selection process to identify qualified candidates, while others can incorporate service academy nominations alongside other constituent service work such as casework.
The nomination authorities, number of appointments, and criteria establishing the qualifications of potential service academy appointees are set by statute and policies established by each academy. No laws or regulations govern congressional nomination processes, as long as nominations are submitted by deadlines established by the academies and comply with chamber ethics rules. Each congressional office with nominating authority may develop its own process for managing its service academy nominations. Some offices handle nominations internally, assigning the task of managing applicant files and developing nomination recommendations to a staff member. Other offices assign staff to oversee nominations-related activities but delegate the screening and development of nomination recommendations to a volunteer panel, which could be charged with screening or interviewing applicants.
This report, which will be updated as warranted, describes statutory requirements for allocating congressional nominations to service academies. It also identifies the qualifications that must be met by potential nominees, as established by statute and each academy. Finally, sample documents that could be used by congressional offices at various stages of the nomination selection process are included. These documents provide basic information and can be customized to fit the specific needs of individual office policies.
Date of Report: July 5, 2011
Number of Pages: 19
Order Number: RL33213
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Elizabeth Rybicki
Specialist on Congress and the Legislative Process
Article II, Section 2 of the Constitution provides that the President shall appoint officers of the United States “by and with the Advice and Consent of the Senate.” This report, which will be updated as warranted, describes the process by which the Senate provides advice and consent on presidential nominations, including receipt and referral of nominations, committee practices, and floor procedure.
The vast majority of presidential appointees are confirmed routinely by the Senate. A regularized process facilitates quick action on thousands of government positions. The process also allows for lengthy scrutiny of candidates when necessary. Each year, a few hundred nominees to high-level positions are subject to Senate investigations and public hearings.
Committees play the central role in the process through investigations and hearings. Senate Rule XXXI provides that nominations shall be referred to appropriate committees “unless otherwise ordered.” Most nominations are referred, although a new standing order of the Senate provides that, after August 28, 2011, some nominations to specified positions will not be referred unless a Senator requests referral. The Senate rule concerning committee jurisdictions (Rule XXV) broadly defines issue areas for committees, and the same jurisdictional statements generally apply to nominations as well as legislation. A committee often gathers and reviews information about a nominee either before or instead of a formal hearing.
A committee considering a nomination has four options. It can report the nomination to the Senate favorably, unfavorably, or without recommendation, or it can choose to take no action at all. It is more common for a committee to fail to take action on a nomination than to reject a nominee outright.
The Senate handles executive business, which includes both nominations and treaties, separately from its legislative business. All nominations reported from committee are listed on the Executive Calendar, a separate document from the Calendar of Business, which lists pending bills and resolutions. Generally speaking, the majority leader schedules floor consideration of nominations on the calendar. Nominations are considered in “executive session,” a parliamentary form of the Senate in session that has its own journal and, to some extent, its own rules of procedure.
The question before the Senate when a nomination is called up is “will the Senate advise and consent to this nomination?” Only a majority of Senators present and voting, a quorum being present, is required to approve a nomination. Because nominations are vulnerable to filibusters, however, stronger support may be necessary. Cloture may be invoked to bring debate on a nomination to a close.
Nominations that are pending when the Senate adjourns or recesses for more than 30 days are returned to the President unless the Senate, by unanimous consent, waives the rule requiring their return (Senate Rule XXXI, clause 6). If a nomination is returned, and the President still wants a nominee considered, he must submit a new nomination to the Senate.
Date of Report: July 14, 2011
Number of Pages: 17
Order Number: RL31980
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Posts
