Congressional Record: April 10, 2003 (Senate)
Page S5175-S5248                        


      By Mr. WYDEN (for himself, Ms. Collins, and Mrs. Clinton):
  S. 876. A bill to require public disclosure of noncompetitive 
contracting for the reconstruction of the infrastructure of Iraq, and 
for other purposes; to the Committee on Governmental Affairs.
  Mr. WYDEN. Mr. President, Senators Collins, Clinton, Byrd, Lieberman 
and I want the rebuilding of Iraq to be done in the best way possible--
for the Iraqi people and for the American taxpayers who will foot the 
bill. To ensure that happens, we're introducing bipartisan legislation 
today to ensure accountability in the awarding of U.S. contracts to 
rebuild Iraq.
  Usually in situations like this, open and competitive bidding is used 
to get the best deal for the taxpayers. The same needs to hold true 
here. Contracts to rebuild Iraq should be awarded in the sunshine--not 
behind a smokescreen. If the Federal Government chooses not to use free 
market competition to get the most reasonable price from the most 
qualified contractor, then, at a minimum, they should have to tell the 
American people why.
  The bill we're introducing today is called the Sunshine in Iraq 
Reconstruction Contracting Act. It's intended to shine light into the 
secretive practices the United States Agency for International 
Development, USAID, and other Federal agencies are using to hand out in 
Iraqi work.
  There are dollars-and-cents reasons for doing this. The potential 
cost of rebuilding Iraq has been estimated at around $100 billion. 
That's a lot of taxpayer money. And the U.S. General Accounting Office, 
GAO, reports that sole-source and limited-source contracts aren't 
usually the best buy. Investigator found that Army officials often just 
took whatever level of services the contractor gave, without ever 
asking if it could be done more efficiently or at a lower cost.
  Despite that, sole-source and limited-source contracts look like the 
rule, not the exception, for rebuilding Iraq. And these are costing 
some big cash. Contracts awarded for oil fire fighting and other 
projects are so-called ``cost-plus'' contracts. They pay a company's 
expenses, plus a guaranteed profit of one to eight percent. There are 
no limits on total costs, so the more a firm charges in expenses, the 
more profit it makes. If the Federal Government's going to spend my 
constituents' money that way, without asking for competitive bids, I 
think my constituents deserve to know why.
  Let me give you two concrete examples of the kind of secrecy I'm 
talking about. A lot of the known details come from press reports. In 
February and March, USAID invited a handful of companies to bid on $1.7 
billion in Iraqi projects--rebuilding highways, bridges, schools. 
Competition for one $600 million contract was limited to seven large 
U.S. engineering firms. USAID apparently put out some bid invitations 
before the war even started.
  On March 24, the Army Corps of Engineers announced a sole-source, 
unlimited contract to two American companies to control Iraqi oil 
fires. The no-bid contract is still classified. Information that should 
be available to the public was finalized on March 8 but is still under 
wraps. What we know is that other firms that had experience putting out 
oil well fires in Kuwait in 1991 were left out of the process 
altogether. And we also know that as early as last fall, the parent 
company of these contractors got an exclusive contract to study how to 
supply oil services during an invasion of Iraq.
  Anybody looking to find an explanation for this closed-door 
contracting is likely to come up short. So far the agencies haven't 
said much. Last month, USAID announced that it would limit competition 
to companies with demonstrated technical ability, proven accounting 
mechanisms, ability to field a qualified technical team on short 
notice, and authority to handle classified national security material. 
The USAID Director told The New York Times that to work in Iraq you 
have to have a security clearance, and only these few American 
companies have that clearance.
  I sit on the Intelligence Committee, and don't know of any good 
reason why a contractor bidding to rebuild a school, hospital, sewer 
system or any other part of Iraq's infrastructure would need a security 
clearance. In any case, four of USAID's eight reconstruction projects 
will allow subcontracting to companies that don't have to meet the 
security requirements. So that argument doesn't hold up.
  Our bill has a simple premise to ensure accountability in the 
awarding process. It says that any Federal entity bypassing competitive 
bidding for Iraqi reconstruction projects has to disclose some key 
information. Most importantly, that means revealing the documents used 
to justify a sole-source or limited contract. Agencies are already 
required by law to prepare this rationale for sole source bidding. Our 
bill just makes the information accessible. We've written provisions to 
protect classified information, while still giving Congress full 
oversight over the billions in taxpayer money that Americans are being 
asked to commit in Iraq.
  There are too many questions and the stakes are too high for Congress 
not to demand public disclosure of this information. I am pleased that 
Senators Collins, Clinton, Byrd and Lieberman are joining me in 
introducing this legislation to bring greater accountability and 
openness to the contracting for Iraq reconstruction.
  I ask unanimous consent that a copy of our bill be printed in the 
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 876

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Sunshine in Iraq 
     Reconstruction Contracting Act of 2003''.


       (a) Disclosure Required.--
       (1) Publication and public availability.--The head of an 
     executive agency of the United States that enters into a 
     contract for the repair, maintenance, rehabilitation, or 
     construction of infrastructure in Iraq without full and open 
     competition shall publish in the Federal Register or Commerce 
     Business Daily and otherwise make available to the public, 
     not later than 30 days after the date on which the contract 
     is entered into, the following information:
       (A) The amount of the contract.
       (B) A brief description of the scope of the contract.
       (C) A discussion of how the executive agency identified, 
     and solicited offers from, potential contractors to perform 
     the contract, together with a list of the potential 
     contractors that were issued solicitations for the offers.
       (D) The justification and approval documents on which was 
     based the determination

[[Page S5204]]

     to use procedures other than procedures that provide for full 
     and open competition.
       (2) Inapplicability to contracts after fiscal year 2013.--
     Paragraph (1) does not apply to a contract entered into after 
     September 30, 2013.
       (b) Classified Information.--
       (1) Authority to withhold.--The head of an executive agency 
       (A) withhold from publication and disclosure under 
     subsection (a) any document that is classified for restricted 
     access in accordance with an Executive order in the interest 
     of national defense or foreign policy; and
       (B) redact any part so classified that is in a document not 
     so classified before publication and disclosure of the 
     document under subsection (a).
       (2) Availability to congress.--In any case in which the 
     head of an executive agency withholds information under 
     paragraph (1), the head of such executive agency shall make 
     available an unredacted version of the document containing 
     that information to the chairman and ranking member of each 
     of the following committees of Congress:
       (A) The Committee on Governmental Affairs of the Senate and 
     the Committee on Government Reform of the House of 
       (B) The Committees on Appropriations of the Senate and the 
     House of Representatives.
       (C) Each committee that the head of the executive agency 
     determines has legislative jurisdiction for the operations of 
     such department or agency to which the information relates.
       (c) Fiscal Year 2003 Contracts.--This section shall apply 
     to contracts entered into on or after October 1, 2002, except 
     that, in the case of a contract entered into before the date 
     of the enactment of this Act, subsection (a) shall be applied 
     as if the contract had been entered into on the date of the 
     enactment of this Act.
       (d) Relationship to Other Disclosure Laws.--Nothing in this 
     section shall be construed as affecting obligations to 
     disclose United States Government information under any other 
     provision of law.
       (e) Definitions.--In this section, the terms ``executive 
     agency'' and ``full and open competition'' have the meanings 
     given such terms in section 4 of the Office of Federal 
     Procurement Policy Act (41 U.S.C. 403).