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entitled 'Defense Contracting: Improved Policies and Tools Could Help
Increase Competition on DOD's National Security Exception
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United States Government Accountability Office:
GAO:
Report to Congressional Committees:
January 2012:
Defense Contracting:
Improved Policies and Tools Could Help Increase Competition on DOD's
National Security Exception Procurements:
GAO-12-263:
GAO Highlights:
Highlights of GAO-12-263, a report to Congressional Committees.
Why GAO Did This Study:
Competition is a critical tool for achieving the best return on the
government’s investment. Federal agencies are generally required to
award contracts competitively, but they are permitted to use other
than full and open competition in certain situations, such as when
open competition would reveal information that would harm national
security. GAO examined DOD’s use of this provision, known as the
national security exception. It requires the use of competition to the
greatest extent practicable. GAO assessed (1) the pattern of DOD’s use
of the national security exception; (2) DOD’s processes for using the
exception; and (3) the extent to which DOD achieved competition under
the exception. GAO analyzed federal procurement data; reviewed a
selection of 27 contract files and justifications citing the exception
from the Army, Navy, and Air Force, based on largest obligations,
frequent users, and a range of procurement types, as well as five
contracts from DOD intelligence agencies; and interviewed DOD
contracting and program officials.
What GAO Found:
DOD’s use of the national security exception is small—about 2 percent
of the dollar value of its total use of exceptions to full and open
competition, but gaps in federal procurement data limit GAO’s ability
to determine the full extent of DOD’s use. DOD procures a range of
goods and services under this exception, and according to federal
procurement data, the Air Force accounted for about 74 percent of DOD’
s use during fiscal years 2007 through 2010. However, DOD intelligence
agencies and special access programs frequently use the exception, but
are generally excluded from reporting procurement data. While an
Office of the Secretary of Defense memorandum exempts three of the
intelligence agencies from reporting such data, DOD policy on
reporting sensitive procurements for other military department
programs is not clear.
For most national security exception contract actions GAO reviewed,
DOD used a single justification and approval document that applies to
multiple contracts—known as a class justification. Among those
reviewed, $3.3 billion of $3.4 billion was obligated under contracts
that used class justifications, which reduce the steps required to
proceed with individual contract actions that do not use full and open
competition. According to contracting officials, the increased
flexibility of national security exception class justifications helps
meet mission needs. However, in the Air Force, concerns about the
reduced management review of these contracts have led to changes in
the process for approving individual contract actions using class
justifications. Nevertheless, all of the justifications GAO reviewed
met Federal Acquisition Regulation requirements.
GAO’s analysis of federal procurement data on about 11,300 contract
actions found that, from fiscal years 2007 through 2010, only 16
percent of all obligations under those actions by the military
departments under the national security exception received more than
one proposal, as shown in the figure below. Contract files and
contracting officials cited a limited pool of companies with the right
capabilities, the difficulty of changing from an established vendor,
and limited tools for soliciting competitive bids as reasons for their
inability to obtain more competition. Twelve of the 27 military
department contract files GAO reviewed did not include a record of
market research, and others included few details on the results. Two
intelligence agencies that reported using the national security
exception for all contracting reported achieving comparatively high
levels of competition. Both have systems that catalogue firms,
capabilities, and solicitations that are used to facilitate security
sensitive market research.
Figure: Number of Offers Received on Armed Service National Security
Exception Contracts by Percentage of Dollars Obligated, Fiscal Years
2007 through 2010:
[Refer to PDF for image: Pie-chart]
One proposed: 84%;
More than one proposed: 16%.
Source: GAO analysis of FPDS-NG data.
[End of figure]
What GAO Recommends:
GAO recommends that DOD issue guidance clarifying when security
sensitive contracting data must be reported, monitor the impact of new
Air Force class justification processes, and consider using tools that
facilitate market research in a secure environment. DOD concurred with
two recommendations and partially concurred with the recommendation on
clarifying guidance, citing pending revisions to regulations. GAO
continues to believe that clarifying guidance is needed.
View [hyperlink, http://www.gao.gov/products/GAO-12-263]. For more
information, contact Belva Martin at (202) 512-4841 or martinb@gao.gov.
[End of section]
Contents:
Letter:
Background:
DOD's Use of the National Security Exception Covers a Range of Goods
and Services, but Gaps in Data Limit Ability to Determine Full Extent
of Use:
DOD Often Uses a Single Document to Justify Multiple Actions under the
National Security Exception, and All Justifications Met Requirements:
Level of Competition under the National Security Exception Varied
Greatly Within DOD:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Comments from the Department of Defense:
Appendix III: GAO Contact and Staff Acknowledgments:
Table:
Table 1: Elements of a Justification for Other Than Full and Open
Competition Required by the FAR:
Figures:
Figure 1: Percentage of Total DOD Obligations Based on Other Than Full
and Open Competition, by FAR Exceptions to Competition, Fiscal Years
2007 through 2010:
Figure 2: Percentage of National Security Exception Obligations by DOD
Component, Fiscal Years 2007 through 2010:
Figure 3: Types of Procurements under the National Security Exception,
Fiscal Years 2007 through 2010:
Figure 4: Types of Procurements under the National Security Exception,
by Military Department, Fiscal Years 2007 through 2010:
Figure 5: Relationship of Contracts Reviewed to Type of Justifications
Used by the Military Departments and Associated Obligations for Fiscal
Years 2007-2010:
Figure 6: Review Process Required by FAR for Approval of Other-Than-
Full-and-Open Competition Contract Award over $85.5 Million under a
Class or Individual Justification:
Figure 7: Percentage of total DOD National Security Exception
Obligations by Number of Proposals Received, Fiscal Years 2007 through
2010:
Figure 8: Reported Percentage of Contract Obligations Awarded
Competitively:
Abbreviations:
ACC: Army Contracting Command:
AFMC: Air Force Materiel Command:
AMC: Army Materiel Command:
ARC: Acquisition Research Center or Acquisition Resource Center:
CICA: Competition in Contracting Act:
DIA: Defense Intelligence Agency:
DOD: Department of Defense:
DPAP: Defense Procurement and Acquisition Policy:
FAR: Federal Acquisition Regulation:
FPDS-NG: Federal Procurement Data System-Next Generation:
IG: Inspector General:
NGA: National Geospatial-Intelligence Agency:
NRO: National Reconnaissance Office:
NSA: National Security Agency:
NSE: National Security Exception:
OSD: Office of the Secretary of Defense:
SAP: Special Access Programs:
SMDC: Space and Missile Defense Command:
SPAWAR: Space and Naval Warfare Systems Command:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
January 13, 2012:
Congressional Committees:
The Department of Defense (DOD) spent an average of $370 billion per
year buying goods and services during fiscal years 2007 through 2010.
The Federal Acquisition Regulation (FAR) requires, with limited
exceptions, that contracting officers promote and provide for full and
open competition in soliciting offers and awarding contracts. One
exception--the national security exception--allows agencies to limit
potential offerors on a contract solicitation in instances when
disclosure of the agency's needs would compromise national security,
but still requires agencies to request offers from as many potential
sources as practicable. DOD's Better Buying Power initiative, launched
in September 2010, recognized that DOD has not taken full advantage of
opportunities for competition to achieve the best possible return on
its investments.
The National Defense Authorization Act for Fiscal Year 2011 mandated
that we review DOD's use of the national security exception. The
mandate required us to review (1) the pattern of usage of such
exception by acquisition organizations within the department to
determine which organizations are commonly using the exception and the
frequency of such usage; (2) the range of items or services being
acquired through the use of such exception; (3) the process for
reviewing and approving justifications involving such exception; (4)
whether the justifications for use of such exception typically meet
the requirements of the FAR applicable to the use of such exception;
(5) issues associated with follow-on procurements for items or
services acquired using such exception; and (6) potential additional
instances where such exception could be applied and any authorities
available to the department other than such exception that could be
applied in such instances.[Footnote 1] To answer the mandate, we (1)
identified the pattern of DOD's use of the national security exception
to full and open competition, including the range of goods and
services acquired; (2) assessed DOD's process for using this
exception; and (3) determined the extent to which DOD obtained
competition on selected contracts when using the national security
exception. To determine DOD's pattern of use of the national security
exception, we analyzed data from the Federal Procurement Data System -
Next Generation (FPDS-NG) for fiscal years 2007 through 2010, and
obtained data on competition and use of this exception from the DOD
intelligence agencies. We determined that the federal procurement data
for these fiscal years were sufficiently reliable to identify DOD's
use of the national security exception, in part by verifying a non-
generalizable random sample of the data from the Army, Navy, and Air
Force (referred to throughout this report as the military
departments). To determine DOD's processes for using this exception,
we used federal procurement data to select a non-generalizable sample
of 27 contract files at the military departments based on largest
obligations, frequent users, and a range of procurement types. In
addition, we reviewed five contracts provided by DOD intelligence
agencies, for a total of 32 contracts across DOD as a whole.[Footnote
2] We did not include other DOD entities in our sample that reported
little or no use of the exception in federal procurement data. We
analyzed the documents the military departments and intelligence
agencies used to seek approval to limit competition on the selected
contracts and determined whether they met the requirements of the FAR.
We conducted legal research and interviewed DOD officials on other
uses of the exception and alternative authorities. Furthermore, we
analyzed policies and guidance, federal procurement data, and met with
DOD officials at the Office of the Secretary of Defense (OSD), the
three military departments, and four DOD intelligence agencies. To
determine the extent to which DOD obtained competition under the
national security exception, we reviewed the 32 selected military
department and intelligence agency contract files, and analyzed FPDS-
NG data on the number of proposals received for contracts awarded
using this exception. With military department and intelligence agency
officials, we also discussed efforts DOD makes to obtain competition
when using the national security exception as its authority to limit
competition.
A more detailed description of our scope and methodology is presented
in appendix I. We conducted this performance audit from March 2011 to
January 2012 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.
Background:
The FAR requires that contracting officers provide for full and open
competition in soliciting proposals and awarding government contracts.
However, the FAR also recognizes that full and open competition is not
always feasible, and authorizes contracting without full and open
competition under certain conditions. Situations for which the FAR
provides exceptions include[Footnote 3]
* only one responsible source and no other supplies or services will
satisfy agency requirements;
* unusual and compelling urgency;
* industrial mobilization; engineering, developmental, or research
capability; or expert services;
* international agreement;
* authorized or required by statute;
* national security; and:
* public interest.
The national security exception allows agencies to limit competition
for a contract when the disclosure of the agency's needs would
compromise national security--not merely because the acquisition is
classified or because access to classified materials is necessary.
Further, the national security exception requires that agencies
request offers from as many potential sources as practicable, although
sole-source awards are permitted. DOD is the largest user of the
national security exception, and a variety of entities within the
department use the exception.
In September 2010, DOD launched its Better Buying Power initiative,
which among other goals, aims to promote effective competition in
government contracting. As a result, promoting competition is a focus
at DOD, according to a Defense Procurement and Acquisition Policy
(DPAP) official, the office within OSD responsible for tracking DOD-
wide procurement and competition metrics. As part of these efforts,
DPAP holds quarterly meetings with competition advocates, who are
officials designated to promote competition within DOD components.
Generally, noncompetitive contracts must be supported by written
justification and approval documents that contain sufficient facts and
rationale to justify the use of the specific exception to full and
open competition that is being applied to the procurement. These
justifications must include, at a minimum, 12 elements specified by
the FAR, as shown in table 1.[Footnote 4]
Table 1: Elements of a Justification for Other Than Full and Open
Competition Required by the FAR:
Required justification elements:
Identification of the agency and the contracting activity, and
specific identification of the document as a "justification for other
than full and open competition."
Nature and/or description of the action being approved.
Description of the supplies or services required to meet the agency's
needs, including the estimated value.
Identification of the statutory authority permitting other than full
and open competition.
Demonstration that the proposed contractor's unique qualifications or
the nature of the acquisition requires use of the authority cited.
Description of efforts made to ensure that offers are solicited from
as many potential sources as is practicable, including whether a
synopsis of the contract was or will be publicized and, if not, which
exception under 5.202 applies.
Determination by the contracting officer that the anticipated cost to
the government will be fair and reasonable.
Description of the market research conducted and the results of the
research or a statement as to why market research was not conducted.
Any other facts supporting the use of other than full and open
competition, such as an explanation why technical data packages,
engineering descriptions, statements of work suitable for full and
open competition have not been developed or are not available.
A listing of the sources, if any, that expressed, in writing, an
interest in the acquisition.
Statement of the actions, if any, the agency may take to remove or
overcome any barriers to competition before subsequent acquisitions
for the supplies or services are required.
Contracting officer certification that the justification is accurate
and complete to the best of the officer's knowledge and belief.
Source: FAR § 6.303-2(b).
[End of table]
The level of the official who must approve a justification is
determined by the estimated total dollar value of the contract or
contracts to which it will apply, as outlined in the FAR. The approval
levels range from the local contracting officer for relatively small
contract actions up to the agencywide senior procurement executive for
contracts worth more than $85.5 million. The justifications can be
made on an individual or class basis; a class justification generally
covers programs or sets of programs and has a dollar limit and time
period for all actions taken under the authority. The approval levels
for the class justification are the same as those for an individual
justification and are determined by the total estimated value of the
class. Approval of individual contract actions under a class
justification requires the contracting officer to ensure that each
action taken under it is within the scope of the class justification.
DOD's Use of the National Security Exception Covers a Range of Goods
and Services, but Gaps in Data Limit Ability to Determine Full Extent
of Use:
DOD Military Departments' Use of the National Security Exception Is
Small Relative to Other Competition Exceptions and Covers a Range of
Goods and Services:
Based on data from FPDS-NG, DOD dollar obligations under the national
security exception during fiscal years 2007 through 2010 were small
relative to other exceptions to full and open competition. Out of the
nearly $1.5 trillion that DOD obligated for all contracts during this
period, 41 percent ($606.3 billion), were based on other than full and
open competition, primarily through the seven FAR exceptions.[Footnote
5] However, only about $13 billion--or about 2 percent of DOD's other
than full and open competition obligations--were obligated under the
national security exception. As figure 1 shows, the most common FAR
exception used by DOD is "only one responsible source," while other
exceptions are used much less frequently.
Figure 1: Percentage of Total DOD Obligations Based on Other Than Full
and Open Competition, by FAR Exceptions to Competition, Fiscal Years
2007 through 2010:
[Refer to PDF for image: pie-chart]
Only one responsible source: 74% ($448.6 billion);
Authorized or required by statute: 12% ($70.5 billion);
Industrial mobilization, R&D: 5% ($29.6 billion);
International agreement: 4% ($21.3 billion);
Unusual and compelling urgency: 3%; ($20.3 billion);
National security: 2% ($13.2 billion);
Public interest: 1% ($0.4 billion).
Source: GAO analysis of FPDS-NG data
[End of figure]
The three military departments were the largest users of the national
security exception during fiscal years 2007 through 2010, according to
the data reported in FPDS-NG, obligating about $12.7 billion. The Air
Force made up 73.5 percent of all of DOD's obligations under the
exception, despite only accounting for about 18 percent of DOD's total
contract obligations during the same time period, as figure 2
illustrates. By contrast, non-military-department components accounted
for about 4 percent of DOD's use under the exception.
Figure 2: Percentage of National Security Exception Obligations by DOD
Component, Fiscal Years 2007 through 2010:
[Refer to PDF for image: stacked horizontal bar graph]
Percent of all DOD national security exception obligations:
Air Force: 73%;
Army: 19%;
Navy: 4%;
DOD-other: 4%.
Percent of total DOD contract obligations:
Air Force: 18%;
Army: 38%;
Navy: 24%;
DOD-other: 19%.
Source: GAO analysis of FPDS-NG data.
[End of figure]
During the same 4-year period, over 40 percent of DOD's total
obligations under the national security exception were for services,
37 percent for supplies and equipment, and about 22 percent for
research and development, as shown in figure 3.
Figure 3: Types of Procurements under the National Security Exception,
Fiscal Years 2007 through 2010:
[Refer to PDF for image: pie-chart]
Services: 41%; $5,345,572,628;
Supplies and equipment: 37%; $4,889,360,303;
Research and development: 22%; $2,950,019,510.
Source: GAO analysis of FPDS-NG data.
[End of figure]
Based on our analysis of FPDS-NG data, the military departments' use
of the exception varied both in the extent of use and the types of
goods and services acquired. During fiscal years 2007 through 2010,
the Air Force obligated $9.7 billion using the national security
exception, nearly all by the Air Force Materiel Command. About half of
the Air Force's obligations under the national security exception were
for services, such as logistical support and professional services,
and the other half was primarily for supplies and equipment, such as
communication equipment and aircraft components. The second largest
user, the Army, obligated $2.5 billion, mostly by the Army Materiel
Command and the Space and Missile Defense Command. More than 80
percent of the Army's obligations under the exception were for
research and development, mainly in space and missile systems and
electronics and communication equipment. Finally, the Navy obligated
almost $0.5 billion over the 4 fiscal years under the exception,
mostly under Space and Naval Warfare Systems Command contracts. More
than half of the Navy's obligations under the exception were to
procure services, such as transportation and repair services. Figure 4
shows the percent of obligations represented by each category of
procurement within the military departments.
Figure 4: Types of Procurements under the National Security Exception,
by Military Department, Fiscal Years 2007 through 2010:
[Refer to PDF for image: stacked vertical bar graph]
Percent of national security obligations:
Military department: Navy;
Supplies and equipment: 20.5%;
Services: 52.7%;
Research and development: 26.7%.
Military department: Army;
Supplies and equipment: 11%;
Services: 4.9%;
Research and development: 84.1%.
Military department: Air Force;
Supplies and equipment: 42.7%;
Services: 50.9%;
Research and development: 6.3%.
Source: GAO analysis of FPDS-NG data.
[End of figure]
DOD Intelligence Agencies and Special Access Programs Use the
Exception but Generally Do Not Report Its Use:
DOD intelligence agencies often use the national security exception
when contracting for supplies and services, but generally do not
report contracting data to the OSD or to FPDS-NG. Two of the four DOD
intelligence agencies--the National Reconnaissance Office (NRO) and
the National Security Agency (NSA)--report using the exception for all
their contracting activities. The other two intelligence agencies--the
National Geospatial-Intelligence Agency (NGA) and the Defense
Intelligence Agency (DIA)--reported using the exception for less than
10 percent of their total contracted obligations.[Footnote 6] Three of
the intelligence agencies, NGA, DIA, and NSA, are exempt from
reporting to FPDS-NG based on a memorandum from OSD. NRO is not
covered by the memorandum, but also does not appear in FPDS-NG data.
However, some of these agencies report overall competition statistics
to OSD and participate in DOD-wide competition advocate meetings.
[Footnote 7]
In addition to the intelligence agencies, DOD Special Access Programs
(SAP) use the national security exception, but generally do not report
data to FPDS-NG.[Footnote 8] These are specially classified programs
within the military departments and other DOD components that limit
information to individuals with an explicit need to know. These
programs impose safeguarding and access measures beyond those
typically taken for information with the same classification level,
such as secret and top secret. Most officials told us that, in
general, these programs do not report data to FPDS-NG. Therefore,
determining the extent to which these entities use the national
security exception is not feasible due to the limited access these
programs allow. However, like the DOD intelligence agencies, officials
at one military department told us that they report overall
competition statistics for SAP contracts to DOD. Specifically, Army
Contracting Command officials who oversee SAP programs reported that
they use the national security exception for nearly all contracting
activity and they provide overall obligation totals and competition
data to OSD.
DOD Lacks Clear Policy on Reporting Sensitive Contracting Activity:
Classified data on contracts, agreements, and orders are excluded from
being reported in FPDS-NG. However, DOD does not have a clear policy
for excluding sensitive contracting data from being reported in FPDS-
NG.[Footnote 9] While the memorandum from OSD exempts three of DOD's
intelligence agencies (NGA, DIA, and NSA) from reporting procurement
data to FPDS-NG because of the sensitive nature of their procurement
data, OSD and military department officials were not aware of a
specific policy basis for excluding sensitive programs outside of the
intelligence agencies. In addition to the exclusion of SAP procurement
data, some DOD officials told us that contracts outside of SAP do not
appear in FPDS-NG due to security concerns. Nevertheless, it appears
based on the contracts in our review that the information that is in
FPDS-NG on contracting activities using the national security
exception is generally from programs that are sensitive but not fully
classified programs. Some DOD officials, including at the OSD level,
were unaware that some individual contracts could be excluded from
FPDS-NG. By contrast, other officials expected all contracts using the
national security exception to be excluded from FPDS due to the
sensitive nature of the procurements. As a result, it is unclear the
extent to which contracting information on SAPs and other highly
sensitive contracting activities in DOD are included in FPDS-NG. Based
on our review, it appears that most information on such programs is
excluded. Further, according to DOD officials, decisions are made on a
case-by-case basis to exclude individual contracts from FPDS-NG, but
they were unsure of the policy basis for these exclusions.
DOD Often Uses a Single Document to Justify Multiple Actions under the
National Security Exception, and All Justifications Met Requirements:
DOD Makes Extensive Use of Class Justifications for the National
Security Exception:
For most contracts we reviewed, DOD entities used a single
justification and approval document that applies to multiple contracts-
-referred to in the FAR as a class justification--for national
security exception contract actions. Of the 27 contracts we reviewed
at the military departments, all 18 Air Force contracts cited class
justifications, as did 4 of the 6 Army contracts. The 2 remaining Army
contracts and all 3 Navy contracts we reviewed cited individual
justifications. Among the contracts we reviewed, $3.3 billion in
obligations during the period of fiscal years 2007 through 2010 used
class justifications, while less than $0.1 billion was obligated
during that period under individual justifications. Figure 5 shows the
relationship between the individual contract files we reviewed and the
type of justification used to support the national security exception,
as well as the obligation amounts associated with each during this
period.[Footnote 10]
Figure 5: Relationship of Contracts Reviewed to Type of Justifications
Used by the Military Departments and Associated Obligations for Fiscal
Years 2007-2010:
[Refer to PDF for image: illustration]
Military Department: Air Force:
Class justification A:
7 contracts reviewed;
Obligations on reviewed contracts: $1.080 billion.
Class justification B:
1 contract reviewed;
Obligations on reviewed contracts: $140.8 million.
Class justification C:
10 contracts reviewed;
Obligations on reviewed contracts: $2.111 billion.
Military Department: Army:
Class justification A:
2 contracts reviewed;
Class justification B:
1 contract reviewed;
Class justification C:
1 contract reviewed;
Individual justification A:
1 contract reviewed;
Individual justification B:
1 contract reviewed;
Obligations across all reviewed contracts: $31.7 million.
Military Department: Navy:
Individual justification A:
1 contract reviewed;
Individual justification B:
1 contract reviewed;
Individual justification C:
1 contract reviewed;
Obligations across all reviewed contracts: $42 million.
Source: GAO analysis of FPDS-NG data.
Note: Justifications are noted by generic identifiers, rather than
program names.
[End of figure]
The Air Force Materiel Command (AFMC) comprises the majority of the
Air Force's use of the national security exception--about 72 percent
of DOD's total contract obligations under the exception as reported in
FPDS-NG compared to 73.5 percent for the Air Force overall. Officials
at the two AFMC centers that make up the majority of the command's
contracting under this exception reported that they cite class
justifications for the vast majority of their national security
exception contracting. The Air Force justifications we reviewed
confirmed this, each covering contracts related to multiple systems
within a program office. For example, one Air Force class
justification had an obligation ceiling of about $8.7 billion for a 7-
year period. The Army's class justifications also covered multiple
contracts, but were more focused on an individual system within the
program office, and two of the three we reviewed had much lower
obligation ceilings.
Some of the intelligence agencies also use class justifications for
the national security exception. NSA and NRO have class justifications
that cover all of their contracting activity. NGA and DIA, by
contrast, reported using individual justifications for contracts where
they cite the national security exception.
Class justifications reduce the steps required to proceed with
individual contract actions that are not fully competitive. Each
justification, individual or class, must be approved through the same
process, with levels of approval specified by the FAR based on dollar
value. However, once a class justification has been approved, the
process for individual contract actions changes--an individual
contract within the scope of the class justification can generally be
approved for limited competition or sole-source award by the local
procuring activity, as long as the amount is within the obligation
ceiling of the justification. For instance, the Air Force obligated
$915 million under an indefinite delivery/indefinite quantity contract
for support and modification services on an existing aircraft and its
related systems. Because this procurement was within the scope of a
national security exception class justification, under the processes
established in the FAR, the program office did not have to obtain
approval for this noncompetitive acquisition from the Air Force's
senior procurement executive.
According to contracting officials at an Air Force program office that
has a class justification in place under the national security
exception, the increased flexibility of their national security
exception class justification helps them meet mission needs. In the
absence of a class justification, approval of an individual
justification for a noncompetitive contract award takes time;
officials with one program office cited an instance of an individual
justification under a different FAR exception that was not yet
approved 7 months after it was initiated. Figure 6 illustrates the
review process for contract awards of $85.5 million or more under
class and individual justifications.
Figure 6: Review Process Required by FAR for Approval of Other-Than-
Full-and-Open Competition Contract Award over $85.5 Million under a
Class or Individual Justification:
[Refer to PDF for image:illustration]
Acquisition requirement:
Full and open competitive award?
Yes:
Contract award can proceed, no justification needed;
No:
Within a scope of a class justification?
Yes:
Cite class justification;
Contract officer;
Approval;
Contract award can proceed.
No:
Draft new individual justification;
Contract officer;
Competition advocate for procuring activity;
Head of procuring activity;
Military department senior procurement executive;
Approval;
Contract award can proceed.
Source: GAO analysis of the Federal Acquisition Regulation.
Note: Initial approval of class justifications is subject to the same
process as individual justifications.
[End of figure]
In some cases, the class justifications we reviewed included a list of
firms authorized to participate, as well as anticipated obligation
amounts for each firm over the applicable time period. For instance,
one of the Air Force class justifications we reviewed listed about 40
firms, each with anticipated contract obligations of several million
to several billion dollars during the 7-year time frame of the class
justification. Despite the number of firms listed in the class
justification, competition among them for a given contract award was
rare--the contracts we reviewed under this justification typically
stated that only one of the firms was capable of meeting the
government's requirements. Officials at one Air Force center said that
amending their existing class justification to add new firms had
proved difficult in the past, and noted that this can reduce
competition by limiting ability to work with new entrants to the
market.
Some Air Force officials also noted that concerns about the level of
review of individual contracts that are awarded without full and open
competition under class justifications have led to efforts to revise
the review process for activity under class justifications. The Air
Force revised its process in a recently approved national security
class justification for an intelligence, surveillance, and
reconnaissance program office, requiring individual contract actions
over $85.5 million be submitted to the Air Force senior procurement
executive for expedited review.[Footnote 11] According to an Air Force
General Counsel official, the Air Force has not yet determined what
type of documentation will be required as part of that review, but it
believes the increased review may identify additional opportunities
for competition. This is the first Air Force class justification to
include this new process, and officials were not aware of any similar
processes at other DOD entities. According to Air Force officials, the
new class justification also includes a mechanism for adding new firms
after the initial approval of the justification. Officials in the
affected program office said that they anticipate an increase in
competition rates as a result of this new flexibility.
Regardless of whether the military departments used class or
individual justifications, all those we reviewed met FAR standards. We
reviewed justification and approval documents for the use of the
exception for 27 different contracts awarded by the Army, Navy, and
Air Force, and all met the standards established in the Federal
Acquisition Regulation for approving the justification. In addition,
we reviewed the justifications and approval documents for one national
security exception contract each at NGA, NRO, and DIA, and two such
contracts at NSA, and all generally met the requirements of the FAR.
There Are No Alternative Authorities for National Security Sensitive
Procurements, but Additional Exceptions May Be Cited in Some Cases:
According to officials from all DOD components we met with, the
national security exception should be used in limited circumstances
where full and open competition would compromise national security.
These officials were not aware of other authorities that could be used
in its place, nor were they aware of any such proposed authorities. In
some justifications and approval documents, DOD components may cite
other exceptions in addition to the national security exception. For
example, the entities that reported using the national security
exception for all or nearly all contracting--NSA, NRO, and some Air
Force SAPs--reported citing additional exceptions when making sole-
source contract awards. According to policy documents and officials
with these organizations, it is standard practice to list more than
one exception when applicable. For example, one NSA contract for
computer security equipment that we reviewed cited the "only one
responsible source and no other supplies or services will satisfy
agency requirements" FAR exception alongside the national security
exception, because contracting officials had determined that only one
firm was capable of meeting the government's requirements. Likewise,
in awarding a satellite contract, NRO used the "only one responsible
source" exception in addition to the national security exception. The
military departments generally do not cite additional exceptions when
using the national security exception.
Level of Competition under the National Security Exception Varied
Greatly Within DOD:
Few Military Department Contracts Achieved Competition under National
Security Exception:
According to federal procurement data, the military departments
typically did not achieve competition on national security exception
contracts. Of the more than 11,300 DOD military department contract
actions citing the national security exception from fiscal years 2007
through 2010, DOD received only one proposal for $10.6 billion of its
obligations--about 84 percent of the total $12.7 billion in
obligations under this exception.[Footnote 12] About 4 percent of
contract actions, which account for 16 percent of the military
departments' obligations, received two or more proposals, as shown in
figure 7 below. By department, nearly 100 percent of Air Force and 95
percent of Navy contract obligations received only one proposal,
whereas about 80 percent of Army obligations were made under contracts
that received more than one proposal.[Footnote 13]
Figure 7: Percentage of total DOD National Security Exception
Obligations by Number of Proposals Received, Fiscal Years 2007 through
2010:
[Refer to PDF for image: pie-chart]
One proposed: 84% ($10,627,322,292);
More than one proposed: 16% ($2,038,735,703).
Source: GAO analysis of FPDS-NG data.
[End of figure]
DOD's Better Buying Power Initiative includes a goal of decreasing
instances where only one proposal is received, which DOD has noted
fails to provide the full benefits of competition. We have previously
reported that about 13 percent of all contract obligations
governmentwide were made on contracts awarded with competitive
procedures that only received one proposal.[Footnote 14]
Contracts receiving only one proposal are considered competitively
awarded if the solicitation was open to multiple potential offerors,
so contracts reported in FPDS-NG that received only one proposal may
have been awarded using competitive procedures. While data on the
extent that national security exception contracts were awarded
competitively were not sufficiently reliable, the available data
confirmed that competition is infrequent--indicating that less than a
quarter of military department obligations under this exception were
competitively awarded. Furthermore, our data reliability assessment
indicated that the errors in these data tend to overstate the level of
competition, so the actual level may be lower.
Likewise, few of the military department national security exception
contracts we reviewed achieved competition. Of the 27 contracts we
reviewed for the Air Force, Army, and Navy, only one received multiple
proposals. For the remaining 26 contracts, only one proposal for each
was received.
Military department officials said that they make efforts to provide
competition to the greatest extent practicable, as required by the
FAR. However, they reported three obstacles to obtaining more
competition in contract awards:
* the existence of a small number of firms able to meet the security
requirements for the goods and services being procured;
* constraints on soliciting new vendors, including proprietary data
and reliance on incumbent contractor expertise; and:
* not having tools to increase market research and solicit vendors in
a secure environment.
For example, Air Force contracting officials reported that
restrictions on time and expertise make it difficult for many new
vendors to meet requirements. A senior Air Force contracting official
told us that not having access to technical data--such as engineering
drawings and other information needed to have another vendor meet the
eligibility requirements--is a major barrier to competition. According
to this official, one vendor often controls the data as proprietary
information, and buying or recreating it would be cost-prohibitive for
potential new vendors.
The military departments generally continue to use the same exception
for follow-on contract actions to national security exception
contracts, as well as the same vendor, based on our analysis of the
contracts in our sample. Contracting officials noted that these
contracts must go through the same approval process as the initial
contract, requiring justification for the national security exception.
Of the 27 contracts in our sample, we identified 14 follow-on
contracts, 12 of which were awarded to the incumbent contractor.
Contracting officials confirmed that follow-on contracts typically are
not competed and are usually awarded to the same vendor due to
proprietary data rights and expertise of the incumbent contractors, as
well as the time required to initiate work with a new vendor. We have
previously reported that incumbent contractors have important
advantages in follow-on contract awards.[Footnote 15]
Contracting officials told us that the tools that are used to solicit
competition generally cannot be used in a security sensitive
contracting environment. FedBizOpps.com is the military departments'
primary tool for soliciting potential offerors.[Footnote 16] The site
allows agencies to upload unclassified solicitations for goods and
services, but it cannot accept classified material.[Footnote 17] Even
though national security exception contract documents are often
unclassified, synopsizing the requirements may pose a security risk.
Instead, contracting officials identify potential sources based on
market research and provide the solicitations to those firms directly.
For the 27 contracts in our sample, the market research reflected in
the contract files frequently did not have adequate documentation on
how it was used to identify potential offerors.[Footnote 18]
Specifically, no evidence of market research was present in 12 of the
27 contract files we reviewed; it was present in 15 of the files we
reviewed. The market research in those 15 contracts often broadly
outlined the means by which the contracting office conducted the
market research, but in some cases did not include details and
evidence to document the research. In some cases, the contracting
officials relied upon their own collective experience with, and
knowledge of, vendors capable of delivering goods and services in
accordance with sensitive contract requirements. Nevertheless, even in
cases in which market research identified multiple firms that could
meet requirements, it did not always result in multiple proposals on a
given contract.
DOD Intelligence Agencies Reported High Levels of Competition by
Conducting Market Research and Soliciting Proposals within a Secure
Environment:
NSA and NRO, which reported that they use the national security
exception for all or nearly all contracting, showed high levels of
competition compared to the DOD military departments. As illustrated
in figure 8 below, according to data provided by the agencies, annual
competition rates ranged from 27 percent to nearly 70 percent of total
obligations at NSA and NRO. Because data on contracting at
intelligence agencies are typically classified at highly restrictive
levels, we did not have sufficient access to independently validate
the data provided.
Figure 8: Reported Percentage of Contract Obligations Awarded
Competitively:
[Refer to PDF for image: vertical bar graph]
Percentage of contract obligations awarded competitively:
Fiscal year: 2007;
NRO: 38%;
NSA: 62%.
Fiscal year: 2008;
NRO: 50%;
NSA: 60%.
Fiscal year: 2009;
NRO: 27%;
NSA: 67.9%.
Fiscal year: 2010;
NRO: 66%;
NSA: 69.4%.
Source: GAO analysis of FPDS-NG data.
[End of figure]
NRO and NSA have both developed tools to help increase competition in
procuring sensitive goods and services and have made these tools
available for other intelligence agencies. These tools bring together
a large number of potential offerors and help the agencies solicit and
evaluate vendors, and competitively award the contract, while taking
measures to limit the risk to national security. The NRO Acquisition
Research Center, developed for intelligence community procurements,
limits potential contractors to about 1,200 registered firms that are
already cleared to perform in a secure environment and have a
workforce with security clearances. An NRO senior procurement official
described this system as a proprietary classified version of
FedBizOpps. The NSA's Acquisition Resource Center is the NSA's
business registry database that provides industry with a central
source for acquisition information. This system also serves as a
market research tool for NSA personnel, as well as a means for
distribution of acquisition documents to its industry partners. All
companies that wish to do business with NSA must be registered in the
system. As of October 2010, the database included about 9,300
companies.[Footnote 19]
An NSA Inspector General report found that this system improved the
agency's ability to conduct market research and solicit competition.
The inspector general found that it improved competition by making the
process more systematic. The other two DOD intelligence agencies, DIA
and NGA, have made arrangements to use one or both of the NSA and NRO
systems. For example, our review of a DIA contract under the national
security exception showed that the agency solicited 11 companies and
received five proposals by using NSA's Acquisition Resource Center.
Additionally, NGA has a memorandum of agreement with NRO to use its
Acquisition Research Center. None of the 27 military department
contracts we reviewed used the NSA or NRO systems to conduct market
research. However, contracting officials at one Air Force center said
that they were aware of NRO's system, and although they do not
currently have access, they would like the opportunity to use it for
their procurements.
Conclusions:
DOD's use of the national security exception is necessary in certain
situations when disclosing the government's needs in a full and open
competition would reveal information that would harm national
security. The exception requires that agencies pursue limited
competition by requesting proposals from as many potential sources as
is feasible. DOD departments may not have a complete understanding of
the extent of competition, given that DOD lacks clear policy on when
sensitive contract actions should be excluded from the FPDS-NG, the
database it uses to track this information. However, the available
data show that the military departments have achieved relatively
little competition in their national security exception procurements.
Obtaining competition on new procurements is especially important,
because our findings and previous reports have shown that once a
contractor receives an award, historically that contractor is likely
to receive any follow-on contract. There are obstacles to competition
in sensitive procurements, including a limited number of firms that
can meet security requirements. Because of these obstacles, program
offices may find it easier to forego competition when a class
justification is already in place. However, more competition is
possible. The recent changes that Air Force made to its process, which
introduced a new high-level review of contract actions under a class
justification, may help increase the extent of competition. Further,
while the military departments face challenges in conducting market
research for sensitive contracts, the DOD intelligence agencies, which
face similar challenges, have created tools to increase their ability
to identify multiple potential sources and obtain competition when
using the national security exception. The use of such tools could
enhance the ability of the military departments to obtain competition
on their national security exception procurements.
Recommendations for Executive Action:
We recommend that the Secretary of Defense take the following three
actions:
* Issue guidance establishing the circumstances under which security
sensitive contracting data are required to be reported to OSD and in
FPDS-NG, including the decision authority for excluding a given
program or contract from the database.
* Evaluate the effect of the Air Force's new review process on
competition and management oversight of national security exception
actions under a class justification; if the changes are found to be
beneficial, consider implementing similar changes across DOD.
* Assess the feasibility of providing contracting officials in
military department programs that routinely use the national security
exception with access to tools that facilitate market research and
competitive solicitation in a secure environment, either through
development of new tools or access to existing intelligence community
systems.
Agency Comments and Our Evaluation:
We provided a draft of this report to DOD. In written comments, DOD
concurred with the report's last two recommendations and partially
concurred with the first recommendation. DOD also provided technical
comments, which we incorporated as appropriate. DOD's comments are
reprinted in appendix II.
In commenting on the draft report, DOD agreed to evaluate the Air
Force's new review process for national security exception actions
under class justifications and implement a similar process across the
department if it found it beneficial. DOD also agreed to explore
deploying existing intelligence community market research and
solicitation tools to organizations in the military departments that
frequently use the national security exception. DOD partially
concurred with our recommendation to clarify guidance on the exclusion
of data from FPDS-NG citing a pending revision to the FAR that will
clarify that classified data should not be reported to FPDS-NG. We did
not encounter any ambiguity on this point--contracting officials we
met with were clear that classified data should not be entered into
the system. However, we found that DOD policy was not clear on if and
when sensitive, but unclassified, contract data should be excluded
from FPDS-NG. We continue to believe that additional guidance is
needed to clarify if and when any such data should be excluded
(outside the existing intelligence agency waiver), and if so, outline
the criteria and decision authority for doing so.
We are sending copies of this report to interested congressional
committees and the Secretary of Defense. This report will also be
available at no charge on GAO's website at [hyperlink,
http://www.gao.gov].
If you or your staff have any questions about this report or need
additional information, please contact me at (202) 512-4841 or
martinb@gao.gov. Contact points for our Offices of Congressional
Relations and Public Affairs may be found on the last page of this
report. Staff acknowledgments are provided in appendix III.
Signed by:
Belva M. Martin:
Director:
Acquisition and Sourcing Management:
List of Committees:
The Honorable Carl Levin:
Chairman:
The Honorable John McCain:
Ranking Member:
Committee on Armed Services:
United States Senate:
The Honorable Howard P. "Buck" McKeon:
Chairman:
The Honorable Adam Smith:
Ranking Member:
Committee on Armed Services:
House of Representatives:
[End of section]
Appendix I: Scope and Methodology:
Our mandate required us to review (1) the pattern of usage of the
national security exception by acquisition organizations within the
Department of Defense to determine which organizations are commonly
using the exception and the frequency of such usage; (2) the range of
items or services being acquired through the use of such exception;
(3) the process for reviewing and approving justifications involving
such exception; 4) whether the justifications for use of such
exception typically meet the requirements of the Federal Acquisition
Regulation applicable to the use of such exception; (5) issues
associated with follow-on procurements for items or services acquired
using such exception; and (6) potential additional instances where
such exception could be applied and any authorities available to DOD
other than such exception that could be applied in such instances. To
respond to these objectives, this report (1) identified the pattern of
DOD's use of the national security exception, including the range of
goods and services acquired; (2) assessed DOD's process for using this
exception; and (3) determined the extent to which DOD obtained
competition on selected contracts using the national security
exception.
To conduct our work we met with DOD officials at the Office of the
Secretary of Defense (OSD), the three military departments, and DOD
intelligence agencies. Within OSD we met with Defense Procurement and
Acquisition Policy officials, including a Federal Procurement Data
System-Next Generation (FPDS-NG) subject-matter expert. We also met
with FPDS-NG experts in the three military departments. In addition,
across DOD we met with officials from the following offices:
U.S. Air Force:
* Office of the Deputy Assistant Secretary for Contracting and Policy:
* Air Force Materiel Command, Special Programs Division:
* Air Force Materiel Command, Implementation Branch:
* General Counsel:
U.S. Army:
* Office of the Assistant Secretary of the Army for Acquisition,
Logistics and Technology:
* Army Materiel Command:
* Army Contracting Command:
* Army Space and Missile Defense Command:
* General Counsel:
U.S. Navy:
* Office of the Assistant Secretary of the Navy, Research, Development
& Acquisition:
* Naval Sea Systems Command:
* Space and Naval Warfare Systems Command:
* General Counsel:
Defense Intelligence Agency:
* Office of Contracting:
* Office of the Inspector General:
* General Counsel:
National Geospatial-Intelligence Agency:
* Acquisition and Contracts Office:
* Office of the Inspector General:
* General Counsel:
National Security Agency:
* Acquisition Organization:
* Office of Contracting:
* Office of the Inspector General:
* General Counsel:
National Reconnaissance Office:
* Office of Contracting:
* Office of the Inspector General:
* General Counsel:
Based on discussions with FPDS-NG subject-matter experts at OSD and
the three military departments, we determined that the data available
prior to fiscal year 2006 were not sufficiently reliable for our
purposes. Therefore, our review focused on the most current reliable
data from FPDS-NG, fiscal years 2007 through 2010. We conducted legal
research and interviewed DOD officials to identify other uses of the
exception and alternative authorities. To identify the DOD components
to include in our review, we used FPDS-NG data to determine those with
the most obligations under the national security exception during
fiscal years 2007 through 2010. These included the three military
departments--the Air Force, Army, and Navy. Within the departments, we
identified the commands with the highest obligations under the
exception--the Air Force Materiel Command (AFMC), Army Materiel
Command/Army Contracting Command (AMC/ACC), Army Space and Missile
Defense Command (SMDC), and Navy's Space and Naval Warfare Systems
Command (SPAWAR). For entities that do not report data to FPDS-NG we
relied on knowledgeable DOD officials to identify the frequent users
of the national security exception. These included the four DOD
intelligence agencies--the Defense Intelligence Agency (DIA), National
Geospatial-Intelligence Agency (NGA), National Security Agency (NSA),
and National Reconnaissance Office (NRO), as well as Special Access
Programs within the DOD military departments. Due to the security
limitations at the intelligence agencies, we employed different
methodological approaches to assess the uses and processes at the
intelligence agencies and the military departments, as described below.
DOD Military Departments:
To assess the pattern of use of the exception and the range of items
or services being acquired at the DOD military departments, we
obtained data from FPDS-NG. We included contracts and orders coded as
using the national security exception under the field "reason not
competed" from fiscal years 2007 through 2010. We analyzed obligations
data and the types of goods and services based on product code fields.
To compare use of the national security exception versus other FAR
exceptions, we conducted an analysis of the other values listed under
the "reason not competed" field.
To determine the processes the military departments employ when using
the national security exception and the extent to which they obtain
competition, we reviewed DOD policies and guidance and selected
contract files based on a non-generalizable sample of 27. The sample
included files from the three commands within the military departments
with the highest reported percentage of obligations under the
exception in fiscal years 2007 through 2010--AFMC, AMC, and SPAWAR.
[Footnote 20] Within these three commands, we identified contracting
offices with the highest reported obligations under the national
security exception as well as contracting offices with a high
percentage of overall contracting dollars obligated under the national
security exception. The components we identified for the sample were:
Air Force Materiel Command:
* Air Logistics Center, Robins Air Force Base:
* Aeronautical Systems Center, Wright-Patterson Air Force Base:
Army Materiel Command:
* Army Contracting Command, Aberdeen Proving Ground:
* Special Operations Command, Ground Application Program Office, Fort
Belvoir:
* Soldier Systems Center, Natick Army Base:
Navy Space and Warfare Systems Command:
* Systems Center Charleston:
Because the Air Force makes up 73.5 percent of all obligations under
the national security exception, we selected 18 contracts from the Air
Force, 6 from the Army, and 3 from the Navy. We selected the
individual contracts based on several criteria. First, we selected
high-dollar contracts. Based on our analysis of commonly procured
goods and services from FPDS-NG data, we selected contracts with a mix
of these types of purchases. FPDS-NG data do not indicate whether a
contract is a follow-on procurement, therefore we selected both older
and newer contracts. DOD officials also identified contracts to select
to capture follow-on activities. However, based on other selection
criteria, these contracts had already been included. The 27 contracts
we reviewed represented about $3.4 billion--about 27 percent--of the
$12.7 billion in obligations under the national security exception
across the military departments in fiscal years 2007 through 2010.
We analyzed the justification and authorization documents for these
selected contracts and determined whether they met the requirements of
the FAR Sections 6.302-6 and 6.303-2. In addition, we reviewed pre-
award documentation to determine the extent to which the services
obtained competition under the exception and to review market research
documents. Further, we reviewed the contract files to determine
whether the contract was a follow-on contract. We met with officials
to discuss efforts the military departments make to obtain competition
when using the national security exception to limit competition.
We conducted assessments of both the completeness and the reliability
of the FPDS-NG data. To assess how complete the FPDS-NG data are, we
interviewed agency officials at OSD and the three military departments
to identify instances when individual contracts or entire programs are
excluded from FPDS-NG to protect classification or security sensitive
information. OSD officials provided us with the directive from the
Director of National Intelligence that exempts all DOD intelligence
agencies from FPDS-NG. We met with officials who oversee Special
Access Programs in the Army and Air Force to discuss any policies and
procedures related to the inclusion or exclusion of contract
information from FPDS-NG.
Our assessment of the reliability of FPDS-NG data involved several
stages. First, we interviewed FPDS-NG subject-matter experts at OSD
and the three military departments. We discussed issues with miscoding
and results of any anomaly reports. After identifying the sample for
our file review, we asked officials at the contracting offices to
verify if the contracts did use the national security exception as
they were coded in the "Reason not Competed" field in FPDS-NG. After
identifying coding errors in that field for five of the contracts, we
compared the "Extent Competed" and "Number of Bids" (proposals) fields
with the documentation in the contract files for the 27 contracts in
our review. We found four errors in the "Extent Competed" field and
one error in the numbers of proposals. We also drew upon prior GAO
findings regarding FPDS-NG data reliability.
Based on this initial data reliability assessment, we selected a
second random, non-generalizable stratified sample of 36 contracts to
assess the same three fields in FPDS-NG. We stratified based on the
military department (Air Force, Army, and Navy); whether it was
identified as an indefinite delivery, indefinite quantity contract in
FPDS-NG; and whether it was listed as not competed or competed after
exclusion of sources in FPDS-NG. We asked DOD officials to review
contract files to determine 1) if the contract cited the national
security exception, 2) whether the contract was competed, and 3) how
many proposals the contract received. In addition, in discussions with
the Navy, they identified contracts that were incorrectly coded as
using the national security exception. After three Air Force contracts
fell out of our sample due to nonresponse, we found errors in the
"Extent Competed" field for about a third of the contracts. However,
we found only two of the contracts (6 percent) had errors in the
"Reason not Competed" field and only one contract (3 percent) with an
error in the number of proposals. These data reliability assessments
indicate that the "Reason not Competed" and "Number of Offers" fields
in FPDS-NG are sufficiently reliable for our analyses.
DOD Intelligence Agencies and Special Access Programs:
To assess the extent of DOD intelligence agencies' use of the national
security exception, we obtained data from the four agencies, as these
agencies do not report data to FPDS-NG. Specifically, we obtained data
on the percentage of total obligations under the national security
exception and the percentage of total obligations competed at the four
agencies.
We reviewed five contract files at four DOD intelligence agencies. We
analyzed the justification and authorization documents for these
selected contracts and determined whether they met the requirements of
the FAR Sections 6.302-6 and 6.303-2. Because we did not have a list
of contract numbers from which to choose, we relied on the agencies to
select the contracts for review. In addition, we reviewed pre-award
documentation to determine the extent to which the agencies obtained
competition under the exception and to review market research
documents. Further, we reviewed the contract files to determine
whether the contract was a follow-on contract. We met with officials
to discuss efforts the intelligence agencies make to obtain
competition when using the national security exception to limit
competition.
DOD entities for which little or no use of the exception appeared in
federal procurement data were not included in our file review. To
assess the use of the exception at these entities, we met with
officials at OSD, as well as officials knowledgeable about Special
Access Programs at the Army, Air Force, and Navy. We obtained
information from an Air Force official on the extent of use and
competition within the Air Force Materiel Command's Special Programs
Division.
To assess the reliability of data received from the DOD intelligence
agencies, we solicited information from officials on the data.
Specifically, we asked cognizant officials about the type of database
systems used to track contracting activity; how these systems are
used; what procedures are in place to ensure consistency and accuracy;
if there have been issues with the system that may compromise data;
what limitations exist in tracking CICA exceptions; and what data
reliability assessments have been conducted on these systems.
We conducted this performance audit from March 2011 to January 2012 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.
[End of section]
Appendix II: Comments from the Department of Defense:
Office of The Under Secretary Of Defense:
Acquisition, Technology and Logistics:
3000 Defense Pentagon:
Washington, DC 20301-3000:
January 11, 2012:
Ms. Belva M. Martin:
Director, Acquisition and Sourcing Management:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, DC 20548:
Dear Ms. Martin:
This is the Department of Defense (DoD) response to the GAO Draft
Report, GAO-12-263, "Defense Contracting: Improved Policies and Tools
Could Help Increase Competition on DoD's National Security Exception
Procurements," dated November 21, 2011 (GAO Code 120965). Detailed
comments on the report recommendations are enclosed.
Sincerely,
Signed by:
Richard Ginman:
Director, Defense Procurement and Acquisition Policy:
Enclosure: As stated.
[End of letter]
GAO Draft Report Dated November 21, 2011:
GAO-12-263 (GAO CODE 120965):
"Defense Contracting: Improved Policies And Tools Could Help Increase
Competition On DOD's National Security Exception Procurements"
Department Of Defense Comments To The GAO Recommendations:
Recommendation 1: The GAO recommends that the Secretary of Defense
issue guidance establishing the circumstances under which security-
sensitive contracting data is required to be reported to the Office of
the Secretary of Defense (OSD) and in the Federal Procurement Data
System—Next Generation (FPDS-NG), including the decision authority for
excluding a given program or contract from the database.
DoD Response: Partially concur. The Defense Federal Acquisition
Regulation Supplement (DFARS) Procedures, Guidance, and Information
(PGI) 204.606(2)(ii) instructs the Components not to report actions
that are classified in FPDS-NG. FAR Case 2010-014, "Updates to Contract
Reporting and Central Contractor Registration," (currently out for
public comment in Federal Register 76 FR 73564) provides a proposed
rule to clarify that FPDS-NG is only for unclassified actions. At the
request of the Office of the Director of National Intelligence (ODNI),
DPAP granted a waiver to NGA, DIA, and NSA to not report unclassified
actions in FDPS-NG due to concerns that aggregation of unclassified
contract action data may reveal operational sensitive mission
information. The waiver was not granted to address national security
issues of a specific program. The NRO was not included in the waiver
because its procurement authority does not originate with the DoD. DoD
does not intend to grant additional waivers to other DoD organizations
for FPDS-NG reporting.
Recommendation 2: The GAO recommends that the Secretary of Defense
evaluate the effect of the Air Force's new review process on
competition and management oversight of national security exception
actions under a class justification; if the changes are found to be
beneficial, consider implementing similar changes DoD.
DoD Response: Concur. The Department will evaluate the Air Force
review process, and if determined to be beneficial, will prepare
guidance to implement a similar process throughout the DoD.
Recommendation 3: The GAO recommends that the Secretary of Defense
assess the feasibility of providing contracting officials in military
department programs that routinely use the national security exception
with access to tools that facilitate market research and competitive
solicitation in a secure environment, either through development of
new tools or access to existing intelligence community systems.
DoD Response: Concur. The Department will assess existing intelligence
community market research tools, and if feasible will provide the
military departments using the National Security exception at FAR
6.302-6 access to the market research tools to help improve
competition in a secure environment.
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Belva M. Martin, (202) 512-4841 or martinb@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, John Neumann, Assistant
Director; Laura Greifner; Julia M. Kennon; John A. Krump; Caryn E.
Kuebler; Teague Lyons; Jean McSween; Kenneth Patton; Roxanna T. Sun;
Sonya Vartivarian; and C. Patrick Washington made key contributions to
this report.
[End of section]
Footnotes:
[1] Ike Skelton National Defense Authorization Act for Fiscal Year
2011, Pub. L. No. 111-383, § 844 (b).
[2] Because we did not have a list of intelligence agency contract
numbers from which to choose, we relied on the agencies to select the
contracts for review.
[3] The Competition in Contracting Act of 1984 (CICA), Pub. L. 98-369,
established these seven exceptions to competition, which are often
referred to as CICA exceptions. Subpart 6.3 of the FAR implements the
CICA exceptions.
[4] See FAR § 6.303-2 (b) and FAR Subpart 6.304 for approval levels.
[5] The FAR allows for limited competition in some other instances
beyond the seven CICA exceptions, such as actions at or below the
Micro-Purchase threshold (FAR Subpart 13.2) or when simplified
acquisition procedures are used (FAR Subpart 13.3). These make up less
than half a percent of all obligations based on other than full and
open competition.
[6] DOD intelligence agencies provided the percent of total
obligations for their organizations, rather than dollar amounts, as we
did not have access to such information. Three of these agencies
reported their use for fiscal years 2007 through 2010, but due to
database limitations, DIA reported its use only for fiscal year 2010.
[7] OSD holds quarterly meetings with competition advocates from DOD's
21 different components to discuss ways to increase competition. The
intelligence agencies are not required to attend, but OSD officials
told us that some participate in the discussions.
[8] DOD distinguishes between two basic types of Special Access
Programs--acknowledged and unacknowledged. The unacknowledged programs
limit the number of people aware of the program's existence, while
acknowledged programs limit the specific details of the programs not
the knowledge of the program itself.
[9] For purposes of this report, we define sensitive contract data as
data that while not classified, its release could have a negative
impact on the agency's ability to perform its mission.
[10] One Army contract originally awarded under the national security
exception was modified in 2004 to cite the "only one source"
exception, and thus had no obligations under the national security
exception during the fiscal year 2007 through 2010 period.
[11] This new class justification is the successor to one of the Air
Force justifications included in our review.
[12] FPDS-NG indicated that about 70 actions accounting for 0.02
percent of obligations (about $3.16 million) under the national
security exception at the military departments received no proposals,
which are likely data entry errors.
[13] About 87 percent of Army contract actions received only one
proposal, but the actions that did receive multiple proposals had much
larger obligation amounts, on average.
[14] GAO, Federal Contracting: Opportunities Exist to Increase
Competition and Assess Reasons When Only One Offer Is Received,
[hyperlink, http://www.gao.gov/products/GAO-10-833] (Washington, D.C.:
July 26, 2010).
[15] [hyperlink, http://www.gao.gov/products/GAO-10-833].
[16] The FAR requires contracting officers to synopsize proposed
contract actions expected to exceed $25,000 in the Government Point of
Entry (GPE), FedBizOpps.com. FAR § 5.101(a)(1) The GPE may be accessed
via the Internet at [hyperlink, https://www.fbo.gov/]. FAR § 5.201(d).
[17] Contract awards involving classified materials may be announced
publicly on FedBizOpps.com in instances where the solicitation itself
is unclassified.
[18] The FAR requires that agencies conduct market research to arrive
at the most suitable approach to acquiring, distributing, and
supporting supplies and services. FAR § 10.000.
[19] The database includes companies with existing security
clearances, as well as companies without clearances.
[20] Two Army commands made up nearly equal shares of Army's total
obligations under the National Security Exception. We selected AMC for
review over SMDC for logistical purposes.
[End of section]
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