Congressional Record: April 10, 2003 (Senate)
Page S5175-S5248
STATEMENTS ON SUBMITTED RESOLUTIONS
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
Record.
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,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sunshine in Iraq
Reconstruction Contracting Act of 2003''.
SEC. 2. PUBLIC DISCLOSURE OF NONCOMPETITIVE CONTRACTING FOR
THE RECONSTRUCTION OF INFRASTRUCTURE IN IRAQ.
(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
may--
(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
Representatives.
(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).
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