Federal Subcontracting: Further Actions Needed to Improve Oversight of Pass-through Contracts
Released: 2014-12-22T00:00:00

Letter

Background

The government relies on contractors to provide a range of mission- critical support from operating information technology systems to battlefield logistics support. Federal regulations state that prime contractors are responsible for managing contract performance, including planning, placing, and administering subcontracts as necessary to ensure the lowest overall cost and technical risk to the government. Successful offerors for contracts exceeding $650,000 that have subcontracting possibilities are required to submit a subcontracting plan which includes, among other things, a statement of the total dollars planned to be subcontracted, the principal types of supplies and services to be subcontracted, and assurances that the offeror will submit periodic reports so that the government can determine the extent to which it has complied with the plan.pays the contractor for allowable incurred costs, to the extent prescribed in the contract. These costs may include the costs and fees charged to the prime by its subcontractors. Figure 1 depicts how lower tier subcontractor costs become part of the higher tier’s and prime contractor’s overall costs.

Guidance for Review and Justification of Pass-through Contracts Is Incomplete and Oversight Processes Are Not Updated

USAID, State, and DOD varied in their implementation of Section 802. USAID issued a policy directive that restated Section 802 requirements in 2013 and is in the process of updating various tools to assist its contracting officers. More recently, State issued a procurement bulletin that restated Section 802 requirements, but has not taken further steps to update tools to assist its contracting officers. In contrast, DOD has not taken actions, noting that the department intends to wait until a final FAR rule is published in 2015. In general, agencies do not know the extent to which offerors proposed to subcontract 70 percent or more of the total cost of their contracts because agency specific and federal data systems do not provide such information. In lieu of creating new reporting mechanisms, each agency indicated its intent to assess contracting officers’ implementation of Section 802 requirements using its existing procurement management reviews. USAID has initiated revisions of associated review guidance to incorporate these requirements, State indicated that its current review guidance is adequate, and DOD has not determined if changes to its guidance are necessary.

USAID and State Took Some Action to Implement Section 802, but None of the Agencies Revised Guidance or Regulations

USAID and State have taken some initial steps to implement Section 802, but neither have provided contracting officers with guidance on how to perform the required analysis of alternate acquisition approaches or determine the feasibility of contracting directly with proposed subcontractors, specified what documentation is necessary, or identified where the required determination should be recorded. For example,

USAID issued a policy directive and State issued a procurement bulletin in June 2013 and July 2014, respectively, that each restate the requirements of Section 802. Specifically, both agencies require that if offerors propose to award subcontracts for more than 70 percent of the total cost of work to be performed, agency contracting officers must consider alternative contracting vehicles, make a written determination of why the contracting approach is in the best interest of the government, and document the basis for the determination. USAID’s Office of Acquisition and Assistance and State’s Office of Acquisition Management communicated the new requirement to its acquisition community electronically and posted the policy to its websites for future reference.

USAID and State have not issued guidance or agency-specific regulations, however, to assist contracting officers in carrying out the tasks required by Section 802. USAID officials noted that the agency is currently updating checklists used by its contracting officers when performing cost and price analysis or for drafting memoranda of negotiation to include Section 802 requirements. They expect that these checklists will be revised by the end of the year. USAID officials do not anticipate the need to revise agency regulations once the FAR is updated, noting that its contracting personnel assess proposed contracting arrangements in accordance with the FAR as part of its standard acquisition processes. Officials noted that the updated checklists will remind its personnel of the Section 802 requirements to assess the feasibility of contracting directly with proposed subcontractors, and to document their determination that the accepted approach is in the government’s best interests as well as the basis for that determination. However, it is unclear if checklist revisions will provide contracting officers with the information necessary to perform the analysis of alternative acquisition approaches required by Section 802. State officials do not plan to update guidance to assist contracting officers with information on how to perform the steps required by Section 802. Similar to USAID, State officials do not anticipate revising departmental regulations once the FAR rule is finalized.

DOD has not issued any policies nor has it issued guidance or regulations to implement Section 802. DOD officials explained that they are waiting for the FAR rule expected to be issued by March 2015 and did not want to issue policy, guidance, or regulations that may contradict the final FAR rule. DOD officials noted that once the FAR is revised, they will consider whether changes to DOD policy, guidance, and instruction would be necessary.

Federal government internal control standards state that control activities, such as policies and procedures, help to ensure that management directives are carried out and actions are taken to address risks.

Further, government internal controls note that information should be recorded and communicated to enable completion of internal control and other responsibilities. The lack of additional guidance that identifies approaches for or examples of how USAID, State, and DOD contracting officers may assess alternative contracting approaches, to include the feasibility of contracting directly with proposed subcontractors, or how to document their determination that the selected approach is in the best interests of the government may increase the departments’ risk of not being in compliance Section 802.

Agencies Will Use Existing Mechanisms to Monitor Implementation of Section 802, but Have Not Yet Revised Applicable Processes and Guidance

USAID, State, and DOD officials stated that their contracting and financial management systems do not track the subcontracting that a contractor intends to, or has used, in performing the contracts. Further, while there have been efforts to develop government-wide information on subcontracting awards, these systems do not include data to identify all levels of subcontracting. In that regard, in June 2014, we found subcontract data contained in USASpending.gov to be unverifiable because agencies frequently did not maintain the records necessary to verify the information reported by the awardees.

Our analysis found that in fiscal year 2013 DOD reported obligating approximately $129.5 billion on contracts which were of the type of contract and dollar value that would potentially be subject to Section 802, and that had a subcontracting plan, while USAID and State reported obligating approximately $817 million and $222 million, respectively, for contracts that would be subject to the criteria applicable to those agencies. USAID, State, and DOD officials believe that few of the prime contractors subcontract 70 percent or more of the total cost of work performed on the types of contracts subject to Section 802. For example, State acquisition officials believe that such a high level of subcontracting is more likely to be found on State’s contracts for construction, which often use fixed-priced contracts and, therefore, would not be subject to the requirements of Section 802.

In lieu of developing new data or reporting requirements to assess whether its acquisition personnel are properly implementing Section 802, USAID acquisition officials noted that they will rely on routine, on-site procurement system and contract reviews to evaluate contracting offices’ compliance with Section 802. An official from USAID’s Office of Acquisition and Assistance, Evaluation Division stated that they completed three procurement management reviews at international locations in October 2014 during which pass-through contracts were discussed, but were not found to be an issue. USAID officials noted that they intend to revise their guidance governing procurement system reviews by the end of 2014. Similarly, both State and DOD officials indicated that they intend to rely on procurement management reviews to determine if contracting officers are properly implementing Section 802, but noted that associated review guidance has not been updated. At the same time, our review of current USAID, State, and DOD procurement management review instructions and checklists found that they do not reflect all Section 802 requirements. State officials believe that pass- through contracting issues will be addressed because its officials use the department’s domestic contract file table of contents as a checklist, which includes sections on solicitation and pre-award documentation, to conduct contract file reviews. State does not currently plan to revise the guidance to specifically reflect Section 802 requirements. DOD acquisition officials noted that they have not yet determined what changes to guidance, if any, would be required.

GAO/AIMD-00-21.3.1. specifically incorporating these requirements into review guidance, agencies may not effectively oversee compliance.

Conclusions

Over the past 8 years, a number of legislative and regulatory changes have been enacted to enhance the government’s insight into the billions of dollars that prime contractors award to subcontractors. Initially, the focus of these changes had been on requiring prime contractors to notify contracting officers when they intend to rely largely on subcontractors. Section 802 changed that paradigm by requiring contracting officers to consider alternative arrangements, such as directly contracting with subcontractors and to make a written determination that the accepted approach is in the best interest of the government, and to document the basis for such a determination when they receive such a notification. Neither USAID nor State has provided its contracting officers additional guidance to help them implement these new requirements. DOD, having the highest level of obligations for contracts that may be potentially subject to Section 802 requirements, has not taken any actions and is waiting for the issuance of a final FAR rule before deciding what, if any, revisions to its guidance are needed. USAID, State, and DOD intend to use procurement management reviews to monitor implementation of Section 802, but have not updated the related review processes and guidance. Without data on the extent to which agencies make use of contracts that rely largely on subcontractors, it is essential that agencies provide guidance to assist their contracting officers in implementing legislative requirements and develop oversight processes to assess their agencies’ compliance. DOD’s decision to wait until the FAR is revised next year rather than proactively initiating actions has increased the risk that its contracting personnel are not currently acting in compliance with the law and may also have missed opportunities to establish more beneficial contracting arrangements. While State and USAID obligate less for contracts that may be subject to Section 802, their more limited exposure does not obviate the need to provide guidance or management oversight. Federal internal control standards highlight the need for agencies to establish processes and procedures to ensure compliance with statutory provisions.

Recommendations for Executive Action

We recommend that the Secretary of Defense, Secretary of State, and Administrator of USAID take the following two actions to help ensure contracting officers carry out the requirements of Section 802: issue guidance to assist contracting officers by identifying approaches for or examples of how to assess alternative contracting approaches to include the feasibility of contracting directly with proposed subcontractors, and documenting a determination that the approach selected is in the best interests of the government; and revise the processes and guidance governing management reviews of procurements to ensure that such reviews assess whether contracting officers are complying with the provisions of Section 802.

Agency Comments and Our Evaluation

We provided a draft of this report to DOD, State, and USAID for comment. DOD and State concurred with our recommendations, but USAID did not agree that additional guidance was necessary to assist contracting officers when assessing alternative contracting approaches and noted current management reviews would be used to identify subcontracting issues. The agencies’ comments are summarized below. Written comments from DOD, State, and USAID are reproduced in appendixes II, III, and IV respectively.

In response to the recommendation to identify approaches for, or examples of, how to assess alternative contracting approaches, and document a determination that the approach selected is in the best interests of the government, DOD and State concurred. DOD, by way of explaining its delay in issuing guidance, noted it was required to adhere to the regulatory rulemaking process and noted that the final FAR rule to implement Section 802 is expected to be issued in March 2015. Section 802 provided flexibility for DOD to issue guidance and regulations as may be necessary to ensure contracting officers take specific actions for certain solicitations and we continue to believe DOD should do so expeditiously. State noted that it will issue guidance to assist contracting officer to assess alternative contracting approaches and document the determination that the approach selected is in the best interest of the government. USAID did not believe it was necessary to issue additional guidance, stating that the FAR has provided specific actions for a contracting officer to follow to ensure that they identify and adequately reconsider proposed contracts and that to provide additional guidance may limit its contracting officers’ discretion. As we noted in the report, USAID has restated these actions in a policy directive, but it has not provided contracting officers with guidance on how to perform these new requirements. Specifically, USAID has not provided examples of how to conduct an analysis of alternate acquisition approaches or determine the feasibility of contracting directly with proposed subcontractors, described what documentation is necessary, or identified where the required contracting officer’s determination should be recorded. Rather than limit a contracting officer’s discretion, we believe that more specific guidance will help contracting officer’s comply with these new requirements, improve oversight, and align more closely with federal internal control standards.

DOD and State concurred with our recommendation to revise their processes and guidance governing management reviews of procurements to ensure that such reviews assess whether contracting officers are complying with the provisions of Section 802. DOD indicated it will provide or revise and update guidance governing management reviews to ensure that such reviews assess whether contracting officers are complying with the provisions of Section 802. In addition, once the final FAR rule is issued, DOD noted it will assess whether it needs to include supplemental information in its Procedures, Guidance, and Information to ensure compliance. State noted that it will also revise its management review guidance to include compliance with Section 802. USAID did not specifically state whether it concurred with the recommendation, noting that it will be reviewing random files during procurement system reviews to see if contracting officers are taking appropriate steps in instances where an offeror proposes to award subcontracts for more than 70 percent of the total award. We agree that such an approach could be an appropriate step when conducting a procurement management review, but, as noted in the report, USAID has not revised the processes and guidance governing management reviews of procurements to do so. Federal internal control standards state that guidance helps to ensure that management directives are carried out and actions are taken to address risks and, accordingly, we continue to believe that USAID should revise its procurement management guidance.

We are sending copies of this report to the appropriate congressional committees, the Secretary of Defense, the Secretary of State, and the Administrator, USAID, and other interested parties. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-4841 or DinapoliT@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix V.

Appendix I: Scope and Methodology

Section 802 of the National Defense Authorization Act (NDAA) for Fiscal Year 2013 directed the Secretary of Defense, Secretary of State, and the Administrator of the United States Agency for International Development (USAID) to issue guidance and regulations as may be necessary to ensure that when an offeror notifies the contracting officer of its intent to subcontract more than 70 percent of the total cost of the work to be performed on certain contracts or orders, contracting officers consider alternative contracting arrangements and make a written determination that the contracting approach selected is in the best interest of the government and document the basis for the determination. The conference report that accompanied the act mandated GAO to report on the implementation of this provision. We assessed the extent to which the Department of Defense (DOD), Department of State (State), and USAID revised their guidance and regulations to address pass-through contracting issues consistent with Section 802.

To conduct our work, we compared the provisions of Section 802 to current DOD, State and USAID acquisition policies, guidance, and regulations. Specifically, we assessed whether these agencies issued policies, guidance, and regulations to ensure for certain solicitations when an offeror informs the agency of its intention to award subcontracts for more than 70 percent of the total cost of work to be performed that the contracting officer (1) considers the availability of alternative contracting arrangements and the feasibility of contracting directly with a subcontractor that will perform the bulk of the work, (2) makes a written determination that the contracting approach selected is in the best interest of the government, and (3) documents the basis for such determination. We interviewed acquisition officials at DOD’s Office of Defense Procurement and Acquisition Policy, the military departments, Defense Contract Management Agency (DCMA), and Defense Contract Audit Agency (DCAA); State’s Offices of Acquisition Management and Office of the Procurement Executive; and USAID’s Office of Acquisitions and Assistance in Washington, D.C. and Kabul, Afghanistan, to understand the steps taken and future plans for completing the required guidance and regulation. We also interviewed Federal Acquisition Regulation Council representatives to understand content and timeframes for a government-wide regulation being developed in response to the Section 802 statutory requirements.

To determine how agencies identify or monitor pass-through contracts, we interviewed acquisition officials at DOD, State, and USAID and reviewed guidance available to contracting officers and supporting agencies, such as DCAA and DCMA. We used the government’s procurement database—Federal Procurement Data System-Next Generation (FPDS-NG)—to identify DOD, State, and USAID total obligations for fiscal year 2013 on contracts that by type and value could be subject to Section 802 requirements and reported having a plan to use subcontractors. For DOD, these are contracts where obligations exceed $700,000 and exclude certain fixed-price contracts. For State and USAID, contracts include those where obligations exceeded $150,000 and are cost-type contracts. To assess the reliability of FPDS-NG’s data, we (1) performed electronic testing for obvious errors in accuracy and completeness; and (2) reviewed related documentation. We found the prime contract obligation data sufficiently reliable for the purposes of this report. We were unable to use subaward information in USASpending.gov to reliably identify whether these obligations were made to contractors whose subcontracting costs comprised over 70 percent of the total costs of the contract. As noted in our June 2014 report, federal reporting systems used to populate USASpending.gov do not identify all contract awards and that the information is largely inconsistent with agency records or unverifiable.

We conducted this performance audit from June 2014 to December 2014 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comments from the Department of Defense

Appendix III: Comments from Department of State

Appendix IV: Comments from the United States Agency for International Development

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Penny Berrier (Assistant Director), Marycella Cortes, Thomas Twambly, Julia Kennon, Alyssa Weir, Danielle Greene, and Jena Sinkfield made key contributions to this report.