CERTIFICATION

REQUIREMENTS

Guidance Governing

Agency Actions Is Limited

Statement for the Record of L. Nye Stevens

Director, Federal Management and Workforce Issues

General Government Division

United States General Accounting Office

GAO Testimony

Before the Subcommittee on Benefits

Committee on Veterans’ Affairs

House of Representatives

Not to be Released

Before 10:00 a.m. EDT

Thursday

September 9, 1999

GAO/T-GGD-99-166

Statement 

Certification Requirements: Guidance

Governing Agency Actions Is Limited

Page 1 GAO/T-GGD-99-166

Mr. Chairman and Members of the Committee:

I am pleased to provide some preliminary results from our ongoing review

for the House Committee on Small Business of federal agencies’

certification requirements. The term “certification” generally refers to a

process of providing written assurance that a product, process, service,

organization, or individual conforms to specified requirements or

standards, and includes activities such as accreditation, registration, and

conformity assessment. The Committee on Small Business asked us to

describe (1) the extent and variety of certification activities in the federal

government; (2) the extent to which any policies, procedures, or guidance

exist governing those activities, either governmentwide or within selected

agencies; and (3) an agency certification practice that could serve as an

example or “best practice” for other agencies. At the Committee’s request,

the Department of Veterans Affairs (VA) was one of the agencies that we

contacted during our review.1

In brief, our preliminary results indicate that federal agencies engage in a

large number and wide variety of certification-related activities. These

activities vary across multiple dimensions, such as the targets of the

certifications, the types of organizations that actually do the certifications,

and whether the certifications are mandatory or voluntary. Although there

are some limits in federal procurement law and within certain programs on

the use of certification requirements, there is currently no

governmentwide or, within the agencies we contacted, agencywide

guidance to direct or assist agencies in the development, selection, or

implementation of all types of certification requirements. However, the

Department of Commerce’s National Institute of Standards and

Technology (NIST) has prepared draft guidance for agencies on

conformity assessment activities, including certification. 2 NIST plans to

publish that guidance for public comment later this year. Finally, we

believe that transparency, or describing the basis of agencies’

decisionmaking, is a certification best practice. We concluded that some

agencies’ certification decisions were very transparent, clearly

documenting the criteria used to select a particular requirement or

certification body. However, in other cases—including one at VA—the

 

1

The other agencies that we contacted were the Department of Transportation (DOT); and, within the

Department of Health and Human Services, the Centers for Disease Control and Prevention (CDC), the

Food and Drug Administration (FDA), and the National Institutes of Health (NIH).

2

Congress established NIST (formerly the National Bureau of Standards) in 1901 to support industry,

commerce, scientific institutions, and all branches of the government. It is an agency of the

Department of Commerce, and its primary mission is to promote United States economic growth by

working with industry to develop and apply technology, measurements, and standards.
Certification Requirements: Guidance Governing Agency Actions Is Limited

Page 2 GAO/T-GGD-99-166

reasons agencies selected specific certifying bodies were not as

transparent, and organizations that were not selected to provide

certifications raised questions about the criteria the agencies used.

There is no official definition of “certification” that is applicable to the

activities of all federal agencies. A NIST official told us that there are

almost as many definitions of a federal certification program as there are

agencies. Different organizations may use other terms to refer to the

concept, such as accreditation, registration, approval, or listing, and may

use the terms interchangeably.3

 Federal certification requirements can be

imposed with regard to a variety of topics and in many different forms. An

agency might require a physician to be board certified in his or her medical

specialty. Before purchasing certain types of equipment, an agency might

require that prospective sellers obtain a certification from a testing

laboratory indicating that their product is safe. Federal agencies may

establish certification requirements as prerequisite for federal contracting

opportunities, as part of a regulatory provision, or for other purposes.

Certifications can also have some troubling effects on affected parties.

Businesses or individuals that wish to provide a particular product or

service to the government might need to obtain multiple certifications to

meet the requirements of different agencies. Also, an agency might select a

particular certifying organization while not accepting certifications in the

same subject area from other organizations with similar qualifications.

We did not attempt to develop a compendium of every federal certification

or certification-related activity and requirement. However, it is clear from

the information we obtained that federal agencies engage in a large

number and wide variety of certification-related activities. For example,

NIST publishes directories listing more than 200 federal government

procurement and regulatory programs in which agencies are actively

involved in providing or requiring certification, accreditation, listing, or

registration. The NIST directories provide only a partial inventory of

agencies’ certification activities, though, because they are primarily limited

to certifications of products, processes, and services. Also, the directories

do not cover individual procurement opportunities in which agencies

require a vendor or contractor to have particular certifications or

accreditations in order to participate.

 

3

Adding to the confusion over terminology, certification is also used in a completely different sense to

refer to many routine contract clauses and solicitation provisions, such as the Certification of Final

Indirect Costs, that are not related to conformance with technical or professional standards. Those

clauses and provisions were outside the scope of our review. See 41 U.S.C. 425(c) for limitations on the

use of requirements for certification by offerers or contractors in the Federal Acquisition Regulation.

Background

Agencies Engage in a

Wide Variety of

Certification-Related

Activities
Certification Requirements: Guidance Governing Agency Actions Is Limited

Page 3 GAO/T-GGD-99-166

Like the standards on which they are based, agencies’ certification

activities vary across multiple dimensions, including (1) the origin of the

requirements (e.g., statutory versus agency-initiated); (2) which entity or

entities do the certifying (e.g., governmental versus private sector agents);

(3) whether certifications are mandatory or voluntary; and (4) the extent

to which there is reciprocity with or recognition of other certifications or

other organizations’ requirements. Some of the requirements differ on

multiple dimensions. For example, the Department of Commerce’s

National Marine Fisheries Service has a voluntary Seafood Inspection

Program for inspection and certification of both seafood products and

processing operations. The program is carried out pursuant to the

Agricultural Marketing Act of 1946, as amended; involves inspection by

licensed federal and state agents; and provides certification recognized by

other federal, state, and foreign government agencies, as well as some

private and international organizations. Some other certification programs

are mandatory in nature, originate with the agencies themselves, are

performed by nongovernmental personnel, and/or may not be universally

recognized by other agencies, countries, or the private sector.

The Competition in Contracting Act of 1984 provides that a solicitation for

a government contract may include a restrictive provision only to the

extent the provision is authorized by law or is necessary to satisfy the

agency’s needs. Some agency-specific acquisition regulations mirror the

act’s general limitation against restrictive provisions.4

 In our bid protest

decisions, we have generally not objected to a requirement that an item

conform to a set of standards adopted by a nationally recognized

organization in the field or a requirement for independent laboratory

certification that such standards are met. However, we have found

requirements unduly restrictive if they require approval by specific

organizations without recognition of equivalent approvals.5

 The absence of

an endorsement by a particular private organization should not

automatically exclude offers that might otherwise meet a procuring

agency’s needs.

Neither the agency officials that we interviewed nor agency documents

that we reviewed identified any governmentwide guidance or, for the

selected agencies we reviewed, agencywide guidance focused specifically

on certification activities. Agency officials we contacted said that their

certification activities are driven more by the particular profession,

 

4

See, for example, VA’s acquisition regulations at 48 CFR 852.211-75.

5

See, for example, Aegis Analytical Laboratories, Inc., B-252511, July 2, 1993.

Little Governmentwide

Guidance Covering

Certification Activities
Certification Requirements: Guidance Governing Agency Actions Is Limited

Page 4 GAO/T-GGD-99-166

industry, or market sector involved than by federal government

considerations. For example, officials from VA and NIH said that their

agencies often use “nationally recognized” or “industry standard”

certifications for a given sector. NIST officials said that a common finding

from their meetings and workshops is that people tend to use the

certification or accreditation program with which they are most familiar.

NIST has taken a first step toward governmentwide guidance in this area,

preparing draft guidance for federal agencies on certification and other

conformity assessment activities. This guidance is currently under review

at the Office of Management and Budget (OMB), and NIST expects to

publish it in the Federal Register for public comment later this year. NIST

officials explained that the guidance would apply to all agencies that set

policy for, manage, operate, or use conformity assessment activities and

results, both domestic and international, except for activities carried out

pursuant to treaties. NIST expects the guidance to define agency

responsibilities in a number of areas, such as

• identifying appropriate private sector conformity assessment practices and

programs and considering use of the results of such practices or programs

as appropriate in new or existing regulatory and procurement actions;

• using relevant guides or recommendations for conformity assessment

practices published by domestic and international standardizing bodies as

appropriate; and

• working with other agencies to avoid unnecessary duplication and

complexity in federal conformity assessment activities.

However, NIST officials pointed out that the guidance will not preempt the

agencies’ authority and responsibility to make regulatory or procurement

decisions authorized by statute or required to meet programmatic

objectives and requirements. They also said that the guidance would not

suggest that agencies explain why they selected one certification

requirement or organization over other possible candidates.

Agency officials also identified some related policies, procedures, and

guidance that affect their certification activities. For example, OMB

Circular A-119 provides guidance on agencies’ participation in the

development and use of voluntary consensus standards and in conformity

assessment activities. The circular directs agencies to use voluntary

consensus standards in lieu of government-unique standards except where

inconsistent with law or otherwise impractical. Agency officials also noted

that their general procedures and regulations governing rulemaking and

procurement play an important role in certification activities. In particular,
Certification Requirements: Guidance Governing Agency Actions Is Limited

Page 5 GAO/T-GGD-99-166

they noted that such procedures provide valuable opportunities for an

agency to inform the public and solicit feedback on proposed certification

requirements.

As noted previously, agency certification actions are numerous and vary

substantially. Therefore, specification of a certification “best practice”

would likely depend on the context of the certifications. Rather than

attempting to develop criteria for selecting the best among these

procedures, we want to highlight one that we have supported in the

regulatory arena—transparency, or clearly describing the basis for agency

decisionmaking. Transparency in certification decisionmaking is important

because those decisions can have significant implications for affected

parties.

Our review of agency certification activities indicates that the

transparency of these actions can vary dramatically. The criteria that

agencies used or planned to use to select particular requirements or

certifying organizations appeared to be very clear in some instances and

not well documented in others. FDA’s mammography program provides a

good example of transparency in certification decisionmaking. Making

extensive use of the public rulemaking process, FDA established detailed

procedures and criteria for certification of personnel and facilities

providing mammography services, as well as the approval of accreditation

bodies under the act. In other certification requirements, though, the

agencies did not provide clearly documented explanations for their

actions. In these cases, certification organizations that were not selected

or designated raised questions about the criteria the agencies used.

However, agency officials were able to explain to us the reasons for their

actions.

One such example was VA’s implementation of new procedures, effective

July 1, 1997, requiring newly-hired physicians to be board certified in the

clinical specialty in which they will practice, unless they have the written

approval of the Chief Patient Care Services Officer prior to appointment.

In a subsequent information letter, the VA Undersecretary for Health

specified that certifying bodies recognized for purposes of this issue are

the American Board of Medical Specialties (ABMS) for allopathic

physicians and the Bureau of Osteopathic Specialists (BOS) for

osteopathic specialists. In a series of letters, the American Association of

Physician Specialists, Inc. and this Committee questioned why only ABMS

and BOS certification were recognized, and requested that VA provide the

criteria used to evaluate and select those two organizations. In its response

to this Committee, VA stated that certifying groups vary widely in their

Transparency of

Agency Certification

Requirements Varies
Certification Requirements: Guidance Governing Agency Actions Is Limited

Page 6 GAO/T-GGD-99-166

requirements and that ABMS and BOS are “the standard certifying

organizations recognized throughout American medicine.” However, VA

did not further describe how it selected these two certifying organizations.

VA officials told us that the Department does not have specific written

criteria or guidance on certification decisionmaking, and said they rely on

consensus practices and standards of the health care profession. They said

VA’s use of ABMS and BOS certifications can be traced back to a 1980

decision by the Chief Medical Director to accept ABMS and BOS physician

board certifications for Incentive Special Pay purposes. In 1997, VA

extended those same certifications that were required for special pay

purposes to employment, “grandfathering” currently employed physicians.

VA officials also noted that they had canvassed other federal agencies

involved in health care—including the Department of Defense, the Public

Health Service, NIH, CDC, and the Bureau of Prisons—and found that

essentially all recognized ABMS and BOS as the two accepted

organizations for accreditation purposes. Finally, they pointed out that, by

law, the Secretary for Veterans Affairs has special authority to make

personnel decisions.

Federal agencies’ certification requirements are an invaluable tool in

helping to ensure product quality, process reliability, and professional

competence in a variety of venues. Without those requirements, federal

agencies would have to independently evaluate the safety of products,

whether certain procedures will yield the desired results, and whether

individual workers possess the skills required to perform a given task.

Agencies have broad latitude in the selection of certification requirements

and certifying organizations, which can result in what appear to be

inconsistencies of application. These apparent inconsistencies are

exacerbated when the reasons behind the agencies’ certification decisions

are unclear. Transparency of these decisions can improve their perceived

legitimacy, and that transparency can be achieved in a variety of ways. For

example, if an agency’s certification requirement is related to a

procurement action, the agency can make clear the basis of that

requirement in the request for proposals. If prospective contractors

believe the justification provided is insufficient, mechanisms are available

in the contracting process to appeal the agency’s determination. Some

agencies have also used the rulemaking process to delineate the rationale

behind their certification requirement decisions. Again, those who believe

the justifications are insufficient can file comments with the agency as part

of the notice and comment process. Although these contracting and

rulemaking processes are convenient mechanisms for certification

Concluding

Observations
Certification Requirements: Guidance Governing Agency Actions Is Limited

Page 7 GAO/T-GGD-99-166

transparency, they are not universally applicable because some

certification requirements do not arise in either environment. The

diversity of these requirements suggests that a governmentwide mandate

for certification transparency would be difficult to implement. However,

regardless of the venue in which the requirements arise, multiple channels

are available for agencies that want to clearly explain their certification

decisions.

Contacts and Acknowledgement

For further contacts regarding this testimony please contact L. Nye

Stevens or Tim Bober at (202) 512-8676. Individuals making key

contributions to this testimony included Curtis Copeland, Alan Belkin,

Victor B. Goddard, and John Brosnan.
Page 8 GAO/T-GGD-99-166
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