This is the accessible text file for GAO report number GAO-04-18
entitled 'U.S. Commission on Civil Rights: More Operational and
Financial Oversight Needed' which was released on November 06, 2003.
This text file was formatted by the U.S. General Accounting Office
(GAO) to be accessible to users with visual impairments, as part of a
longer term project to improve GAO products' accessibility. Every
attempt has been made to maintain the structural and data integrity of
the original printed product. Accessibility features, such as text
descriptions of tables, consecutively numbered footnotes placed at the
end of the file, and the text of agency comment letters, are provided
but may not exactly duplicate the presentation or format of the printed
version. The portable document format (PDF) file is an exact electronic
replica of the printed version. We welcome your feedback. Please E-mail
your comments regarding the contents or accessibility features of this
document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
Report to the Chairman, Subcommittee on the Constitution, Committee on
the Judiciary, House of Representatives:
United States General Accounting Office:
GAO:
October 2003:
U.S. Commission on Civil Rights:
More Operational and Financial Oversight Needed:
GAO-04-18:
GAO Highlights:
Highlights of GAO-04-18, a report to the Chairman, Subcommittee on the
Constitution, Committee on the Judiciary, House of Representatives
Why GAO Did This Study:
Over the past 10 years, GAO, the Congress, the Office of Personnel
Management (OPM), and others have raised numerous concerns about the
U.S. Commission on Civil Rights. GAO was asked to assess (1) the
adequacy of the Commission’s project management procedures, (2)
whether the Commission’s controls over contracting services and
managing contracts are sufficient, and (3) the extent of recent
oversight of the Commission’s financial activities.
What GAO Found:
The Commission has established a set of project management procedures
for commissioners and staff to follow when they plan, implement, and
report the results of approved Commission projects. However, the
procedures lack, among other things, a requirement for systematic
commissioner input throughout projects. As a result, commissioners
lack the opportunity to review many of the reports and other products
drafted by Commission staff before products are released to the
public, which serves to significantly reduce the opportunity for
commissioners to help shape a report’s findings, recommendations, and
policy implications of civil rights issues.
The Commission lacks sufficient management control over its
contracting procedures. The Commission routinely did not follow proper
procedures for its fiscal year 2002 contracting activities. For the
Commission’s largest dollar contract, key documentation on how the
contract was initially awarded was missing from contract files.
Moreover, Commission officials did not follow the legal requirements
to obtain competition for its subsequent media services contracts. As
a result, the Commission did not have all of the information it should
have had to determine whether its contracts provided the best value to
the government.
Little, if any, external oversight of the Commission’s financial
activities has taken place in recent years. An independent accounting
firm has not audited the Commission’s financial statements for the
last 12 years. Although the Accountability of Tax Dollars Act of 2002
requires the Commission—along with certain other executive agencies—to
have its financial statements independently audited annually, the
Commission has been granted a waiver by the Office of Management and
Budget (OMB) from compliance with the financial statement preparation
and audit requirements of the act for the fiscal years 2002 and 2003
audit cycles, which OMB was authorized to waive during an initial
transition period of up to 2 years.
What GAO Recommends:
GAO recommends, among other things, that the Commission adopt
procedures that provide for increased commissioner involvement in
projects; establish greater controls over its contracting activities
in order to be in compliance with federal regulations; and take steps
immediately to meet the financial statement preparation and audit
requirements of the Accountability of Tax Dollars Act of 2002 for
fiscal year 2004.
In commenting on a draft of this report, four of the commissioners
agreed with GAO’s conclusions and recommendations. GAO did not receive
comments from the remaining four commissioners. In separate comments,
the staff director indicated he will consider implementing GAO’s
recommendations but took exception with many of GAO’s findings of
management weaknesses at the Commission.
www.gao.gov/cgi-bin/getrpt?GAO-04-18.
To view the full product, including the scope and methodology, click
on the link above. For more information, contact Robert E. Robertson
at (202) 512-7215 or robertsonr@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Procedures Have Improved, but Lack Some Key Elements of Good Project
Management:
Controls Over Commission's Contracting Procedures Are Insufficient:
No Independent Financial Audits Have Been Conducted in Recent Years:
Conclusions:
Recommendations:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Products Issued or Expected to Be Issued after Fiscal Year
2002:
Appendix III: Comments from Four Commissioners:
Appendix IV: Comments from the Commission's Staff Director:
GAO Comments:
Appendix V: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Acknowledgments:
Tables:
Table 1: Number of Products Issued by OCRE, OGC, and OSD during Fiscal
Year 2002, by Type of Product:
Table 2: OGC, OCRE, and OSD Projects and Products, Fiscal Year 2002:
Table 3: Number of Products Issued or Expected to Be Issued after
Fiscal Year 2002 by OCRE and OGC from Projects That Were Ongoing during
Fiscal Year 2002, by Type of Product:
Figure:
Figure 1: U.S. Commission on Civil Rights, Project Management Reporting
Structure, Fiscal Year 2002:
Abbreviations:
ASCD: Administrative Services and Clearinghouse Division:
FAR: Federal Acquisition Regulation:
FPDC: Federal Procurement Data Center:
GSA: General Services Administration:
NFC: National Finance Center
OCRE: Office of Civil Rights Evaluation:
OGC: Office of General Counsel
OMB: Office of Management and Budget:
OSD: Office of the Staff Director:
RFQ: Request for Quotation:
United States General Accounting Office:
Washington, DC 20548:
October 31, 2003:
The Honorable Steve Chabot:
Chairman:
Subcommittee on the Constitution:
Committee on the Judiciary:
House of Representatives:
Dear Mr. Chairman:
The U.S. Commission on Civil Rights was created as an independent,
bipartisan, fact-finding agency to protect the civil rights of people
in the United States. The Commission is authorized to undertake
projects that study the impact of federal civil rights laws and
policies and disseminate information on its findings through the
issuance of reports to the Congress and the President. In our past
work, we recommended to the Commission ways to improve how it managed
its projects and issued reports.[Footnote 1]
You asked us to assess:
* the adequacy of the Commission's project management procedures,
* whether the Commission's controls over contracting services and
managing contracts are sufficient, and:
* the extent of recent oversight of the Commission's financial
activities.
To respond to your request, we reviewed Commission records, applicable
legislation and regulations, and internal administrative guidance. We
interviewed all current commissioners, the staff director, key
Commission officials, and several former Commission officials. We also
observed several Commission meetings. In addition, we reviewed all
projects and all contracts that were active during fiscal year
2002.[Footnote 2] Our review focused on projects undertaken by
Commission offices located at headquarters and excluded those produced
in field office locations.[Footnote 3] Our review also focused on
whether the Commission maximized competition and followed established
procedures in purchasing services. See appendix I for a more detailed
overview of our scope and methodology. We performed our work in
accordance with generally accepted government auditing standards
between December 2002 and September 2003.
Results in Brief:
The Commission has established a set of project management procedures
for commissioners and staff to follow when they plan, implement, and
report the results of approved Commission projects. However, the
procedures lack certain key elements of good project management that
are reflected in federal internal control and budget preparation
guidance. For example, commissioners have not generally received
updates about certain project cost information. Commissioners, in
practice, make many planning decisions with little or no discussion of
project costs, which can eventually contribute to problems such as
delayed products and lower-quality products if too many projects are
undertaken. While some steps are being taken to increase the flow of
cost information, it remains unclear whether this will meet Commission
needs. Additionally, Commission procedures do not provide for
systematic commissioner input throughout projects. As a result,
commissioners often lack the opportunity to review many of the reports
and other products drafted by Commission staff before products are
released to the public, which serves to significantly reduce the
opportunity for commissioners to help shape a report's findings,
recommendations, and policy implications of civil rights issues.
The Commission lacks sufficient management control over its contracting
procedures. The Commission routinely did not follow proper procedures
for its fiscal year 2002 contracting activities. For the Commission's
largest dollar contract--$156,000 for media services--which has been
ongoing for over 3 years--key documentation on how the contract was
initially awarded was missing from contract files. Moreover, Commission
officials did not follow the legal requirements to obtain competition
for subsequent media services contracts. As a result, the Commission
did not have all of the information it should have had to determine
whether its awards represented the most advantageous offer available to
the government. In addition, the Commission has inadequate controls
over the administration of its contracts. For example, information on
specific tasks to be performed by vendors is communicated orally, not
in writing as required by the Federal Acquisition Regulation (FAR). As
a result, it is difficult for the Commission to track vendors'
performance against an objective measure and ensure that public funds
are used in an effective manner.
Little, if any, external oversight of the Commission's financial
activities has taken place in recent years. An independent accounting
firm has not audited the Commission's financial statements for the last
12 years. Additionally, the Commission is not required by statute to
have an Office of Inspector General, which can typically conduct
regularly scheduled or periodic oversight of an agency's financial
standing. Although the Accountability of Tax Dollars Act of 2002
requires the Commission, along with other executive agencies not
previously required to do so under another statute, to have its
financial statements independently audited annually, the Commission has
been granted a waiver by the Office of Management and Budget (OMB) from
compliance with the financial statement preparation and audit
requirements of the act for fiscal years 2002 and 2003. During the
initial transition period for this new requirement, the act permits the
OMB Director to waive these requirements for up to 2 years.
This report contains recommendations for improving the Commission's
project management process and for providing greater transparency and
control over its contracting and financial management activities. In
commenting on a draft of this report, four of the commissioners agreed
with our conclusions and recommendations. We did not receive comments
from the remaining four commissioners, who include the chairperson and
the vice-chair. In separate comments, the staff director pointed out
that the Commission is committed to ensuring that its operations are
well maintained and will consider implementing whatever recommendations
and suggestions appear in the final report. However, the staff director
believed that many of the findings were inaccurate and that aspects of
the draft report contained errors, unsubstantiated allegations, and
misinterpretations. After carefully reviewing his concerns, we continue
to believe that our conclusions and recommendations are well founded.
The staff director also provided technical comments and clarifications,
which we incorporated in the report as appropriate. Both sets of
comments and our detailed responses to the staff director's comments
are provided in full in appendixes III and IV.
Background:
The Commission on Civil Rights is a fact-finding federal agency
required to report on civil rights issues. Established by the Civil
Rights Act of 1957, the Commission is currently directed by eight part-
time commissioners and employs approximately 70 staff members in fiscal
year 2003. The Commission's annual appropriation has averaged
approximately $9 million since fiscal year 1995. The eight
commissioners have a number of responsibilities, including
investigating claims of voting rights violations and studying and
disseminating information, often collected during specific projects, on
the impact of federal civil rights laws and policies. Commissioners
serve 6-year terms, and they are appointed on a staggered basis. Four
commissioners are appointed by the President, two by the president pro
tempore of the Senate, and two by the speaker of the House of
Representatives. No more than four commissioners can be of the same
political party.
The Commission accomplishes its mission by (1) investigating charges of
citizens being deprived of voting rights because of color, race,
religion, sex, age, disability, or national origin; (2) collecting and
studying information concerning legal developments on voting rights;
(3) appraising federal laws and policies with respect to discrimination
or denial of equal protection of the laws; (4) serving as a national
clearinghouse for information; and (5) preparing public service
announcements and advertising campaigns on civil rights issues. The
Commission may hold hearings and, within specific guidelines, issue
subpoenas to obtain certain records and have witnesses appear at
hearings.
The Commission must submit at least one report annually to the
President and the Congress that monitors federal civil rights
enforcement in the United States, and such other reports as deemed
appropriate by the Commission, the President, or the Congress.[Footnote
4] For instance in 2002, the Commission issued a report that evaluated
the civil rights activities of the Departments of Justice, Labor, and
Transportation and another on election reform. The Commission is also
authorized to investigate individual allegations of voting rights
discrimination. However, because it lacks enforcement powers that would
enable it to apply remedies in individual cases, the Commission refers
specific complaints it receives to the appropriate federal, state, or
local government agency for action.[Footnote 5] A staff director, who
is appointed by the President with the concurrence of a majority of the
commissioners, oversees the day-to-day operations of the Commission and
manages the staff in its six regional offices and Washington, D.C.,
headquarters.
The Commission also has 51 State Advisory Committees--1 for each state
and the District of Columbia. Each committee is composed of citizens
familiar with local and state civil rights issues. The members serve
without compensation and assist the Commission with its fact-finding,
investigative, and information dissemination functions.
Concerns Raised in the Past:
In 1997, we reported that the management of the Commission's operations
lacked control and coordination.[Footnote 6] Among other findings, we
found that projects lacked sufficient documentation, project monitoring
to detect budget delays or overruns was not systematic, and little
coordination took place among offices within the Commission to approve
and disseminate reports. Moreover, senior officials were unaware of how
Commission funds were used and lacked control over key management
functions, making the Commission's resources vulnerable to misuse. We
reported that key records had been lost, misplaced, or were
nonexistent, leaving insufficient data to accurately portray Commission
operations. Centralized agency spending data resulted in Commission
officials being unable to provide costs for individual offices or
functions. We also found in 1997 that the Commission had never
requested any audits of its operations, and information regarding
Commission audits in its fiscal year 1996 report on internal controls
was misleading.[Footnote 7] The Commission also had not updated
administrative guidance to reflect a major reorganization that occurred
in 1986. We recommended that the Commission develop and document its
policies and procedures to assign responsibility for management
functions to the staff director and other Commission officials and
provide mechanisms for holding them accountable for proper management
of Commission operations.
Federal Regulations Governing Contracting:
The FAR, established to codify uniform policies and procedures for
acquisition by executive agencies, applies to acquisitions of supplies
and services made by federal executive agencies--including the U.S.
Commission on Civil Rights--with appropriated funds. The FAR contains
procedures for awarding both competitive and sole-source contracts and
selecting contracting officers.[Footnote 8]
Competition Using Simplified Acquisition Procedures:
The FAR calls for federal agencies to promote competition to the
maximum extent practicable when making purchases using simplified
acquisition procedures.[Footnote 9] In 1994, Congress authorized the
use of simplified acquisition procedures for acquisitions not exceeding
$100,000.[Footnote 10] Under those procedures, agency officials may,
among other things, select contractors using expedited evaluation and
selection procedures and are permitted to keep documentation to a
minimum. In 1996, Congress authorized a test program that permits
federal agencies to use simplified acquisition procedures for
commercial items not exceeding $5 million.[Footnote 11] The authority
to issue solicitations under this test program is set to expire on
January 1, 2004.[Footnote 12]
Awarding a Sole-Source Contract under Simplified Acquisition
Procedures:
When they award on a sole-source basis,[Footnote 13] contracting
officers are required by regulations to prepare a written justification
explaining the absence of competition. The regulations also generally
require public notices of proposed sole-source awards. Further,
contracting officers must determine that the price of a sole-source
award is reasonable. This determination may be based on evidence such
as (1) market research, (2) current price lists or catalogs, (3) a
comparison with similar items in related industry, or (4) a comparison
to an independent government cost estimate.
Using the Federal Supply Schedule:
Under the Federal Supply Schedule, the General Services Administration
(GSA) awards contracts to several companies supplying comparable
products and services. These contracts can then be used by any federal
agency to purchase products and services. As a general rule, the
Competition in Contracting Act of 1984 requires that orders under the
Federal Supply Schedule result in the lowest overall cost alternative
to meet the needs of the agency.[Footnote 14] The FAR and GSA
procedures generally require agencies to compare schedule offerings of
multiple vendors in arriving at an award decision.
Procedures Have Improved, but Lack Some Key Elements of Good Project
Management:
The Commission has established a set of project management procedures
for commissioners and staff to follow when they plan, implement, and
report the results of approved Commission projects. However, the
procedures lack certain key elements of good project management that
are reflected in federal internal control and budget preparation
guidance.[Footnote 15] For example, commissioners do not generally
receive updates about certain project cost information. Commissioners,
in practice, make many planning decisions with little or no discussion
of project costs, which can eventually contribute to problems such as
delayed products and lower-quality products if too many projects are
undertaken. Additionally, Commission procedures do not provide for
systematic commissioner input throughout projects. In practice,
commissioners do not always have the opportunity to review many of the
reports and other products drafted by Commission staff before products
are released to the public, which serves to significantly reduce the
opportunity for commissioners to help shape a report's findings,
recommendations, and policy implications of civil rights issues.
Commission Has Updated Its Management Policies and Procedures to Better
Manage Projects:
The Commission has made a number of improvements in project management
since our 1997 review. For example, the Commission has revised and
established policies that clarify the roles of the staff director and
senior Commission staff such as the assistant staff director of the
Office of Civil Rights Evaluation (OCRE) and the general counsel in the
Office of the General Counsel (OGC), both of whom report directly to
the staff director. These three key Commission officials are
responsible for carrying out the policies established by the eight
commissioners and for directly overseeing and managing virtually all
headquarters projects that result in Commission products.[Footnote 16]
See figure 1 for an abbreviated organization chart that shows the
reporting relationship between commissioners, the staff director, and
senior Commission staff.
Figure 1: U.S. Commission on Civil Rights, Project Management Reporting
Structure, Fiscal Year 2002:
[See PDF for image]
[End of figure]
In addition to clarified roles of the staff director and senior
Commission staff, the chief of the Budget and Finance Division now
regularly provides the staff director with spending data by office and
function. This detailed information enables the staff director to track
the status of the Commission's expenditures by organizational component
at headquarters and field offices.
Senior Commission staff and the project team leaders we interviewed
were also using various project management procedures to meet target
deadlines. For example, the assistant staff director, OCRE, and the
deputy general counsel, OGC, were using a combination of techniques to
ensure that project deadlines were met. These techniques included
weekly meetings with staff, weekly or monthly reports from staff, and
computer-generated schedules to monitor large, complex projects and
smaller projects. Moreover, all project team leaders were routinely
monitoring their assigned projects to ensure that projects stayed on
schedule. Our review determined that the Commission's project
management procedures allow commissioners, the staff director, senior
Commission staff, and project team leaders to manage long-range
projects that take a year or longer to complete as well as time-
critical projects that take several months or weeks to
complete.[Footnote 17] The Commission chairperson, who was also
chairperson in 1997, is of the opinion that Commission projects and
products in fiscal year 2002 and later were generally timelier than
those products discussed in our 1997 report and testimony.[Footnote 18]
Table 1 summarizes the number of Commission products issued during
fiscal year 2002 by Commission office and by type of product.[Footnote
19] Appendix I provides details about project names and product titles
produced during fiscal year 2002 by those offices that generate
headquarters Commission products that result from commissioner-
approved projects: the Office of Civil Rights Evaluation, the Office of
General Counsel, and the Office of the Staff Director (OSD). In
addition, some fiscal year 2002 projects will generate products in
future years. Appendix II lists the number of products, by type of
product, issued or expected to be issued after fiscal year 2002 from
projects that were ongoing during fiscal year 2002.
Table 1: Number of Products Issued by OCRE, OGC, and OSD during Fiscal
Year 2002, by Type of Product:
Type of product: Background paper; OCRE: 0; OGC: 1; OSD: 0;
Total: 1.
Type of product: Briefing*; OCRE: 3; OGC: 4; OSD: 0; Total: 7.
Type of product: Briefing paper; OCRE: 3; OGC: 4; OSD: 0; Total:
7.
Type of product: Clearinghouse publication*; OCRE: 1; OGC: 0;
OSD: 0; Total: 1.
Type of product: Correspondence; OCRE: 2; OGC: 0; OSD: 0;
Total: 2.
Type of product: Executive summary; OCRE: 0; OGC: 4; OSD:
0; Total: 4.
Type of product: Hearing, consultation, and conference*; OCRE: 0;
OGC: 2; OSD: 0; Total: 2.
Type of product: Miscellaneous*; OCRE: 1; OGC: 0; OSD: 1; Total:
2.
Type of product: OCRE memorandum; OCRE: 1; OGC: 0; OSD: 0;
Total: 1.
Type of product: OSD memorandum; OCRE: 1; OGC: 0; OSD: 0;
Total: 1.
Type of product: Staff report*; OCRE: 1; OGC: 0; OSD: 0;
Total: 1.
Type of product: State advisory committee report*; OCRE: 1; OGC:
0; OSD: 0; Total: 1.
Type of product: Statutory and interim reports*; OCRE: 2; OGC: 0;
OSD: 0; Total: 2.
Type of product: Total; OCRE: 16; OGC: 15; OSD: 1; Total: 32.
Source: U.S. Commission on Civil Rights.
Note: Product types marked with an asterisk appear in the Commission's
Catalog of Publications, September 2003. We ascertained other product
types based on the document title or from information supplied by
Commission officials.
[End of table]
Procedures Do Not Ensure the Inclusion of Cost Information:
Commission procedures do not provide for commissioners and senior
Commission staff to systematically receive project cost information--
primarily staff time charges--to help commissioners and senior staff
plan and monitor projects. Commissioners continue to approve the
majority of projects and products each year without having any specific
information on how much the project will cost, or how much similar
projects have cost in past years. Both federal government guidance and
private sector project management specialists emphasize the importance
of top-level reviews of actual performance. Feedback about actual
project performance, including costs, is basic information essential
for sound planning and allocation of scarce staff and other dollar
resources. Without specific estimates of how much staff time will be
spent and how much the project and its products will cost, Commission
planning will continue to be conducted without key information.
Commissioner approval of projects without key cost information may
contribute to problems such as delayed products and lower-quality
products if too many projects are undertaken for staff to carry out
without additional resources.
The Commission has taken action to limit the number of major projects
that it will approve during the Commission's annual long-range planning
meeting at which commissioners decide which projects to undertake.
However, commissioners continue to approve new projects throughout the
year without any detailed feedback from the staff director about the
amount of time that staff is already committed to spend to complete
previously approved projects. Unless they periodically receive a
comprehensive picture of how much current projects have cost to date
and how much staff time has already been committed, commissioners will
continue to make decisions about how many and which future projects to
undertake, or which current projects and costs to adjust, without basic
information necessary for sound project planning.[Footnote 20]
Without downplaying the value of cost information in project
management, commissioners have been divided over how much project cost
information they need. During our review, several commissioners
expressed concern, both to us and publicly at monthly Commission
meetings, that commissioners were not receiving sufficient information
about project costs. However, several other commissioners said that
they received a sufficient amount of information about the status of
projects. In March 2003, the commissioners did not pass a motion--the
vote was tied 4-4--for the staff director to provide them with, among
other things, quarterly information about project costs that
commissioners were not receiving at that time. However, the
commissioners reached a compromise and passed a subsequent motion in
April 2003 to receive that quarterly cost information. Specifically,
the motion requires commissioners to receive information quarterly on
cost by project and by office. A category of information that was in
the original motion that was not included in the motion that passed
includes projects' travel costs.
Good project management principles dictate that cost information be
integrated in a timely manner into project management. As applied to
the Commission, cost information may be most useful if it is provided
on a monthly basis. During its monthly meetings, the commission
discusses whether or not to undertake emerging civil rights issues.
These decisions will be better informed if, for example, data on costs
that are already being experienced--or expected on other projects--be
included in the monthly discussions.
As of September 2003, commissioners had not begun to receive the agreed
upon information. Once the commissioners begin to receive the cost
information, it will be important to assess the extent that the
information is meeting their collective needs and responsibilities.
Procedures Do Not Ensure Commissioner Input Once Projects Have Been
Approved:
Although the Commission has guidance on project management procedures,
we found that commissioners have limited involvement in the management
of commission projects once they have been approved. This condition
serves to significantly reduce the commissioners' ability to lend their
expertise to the development of Commission products that address civil
rights issues.
On a positive note, the Commission has a set of written instructions
that outline the procedures that should be followed to manage its
projects.[Footnote 21] The instructions describe the general steps that
should be taken in the planning, implementation, and product
preparation stages of projects undertaken by the commission. For
example, the instructions address steps for planning projects at the
front-end as well as legal review prior to the publication of reports.
Nevertheless, the general nature of the written project management
guidance limits the involvement of commissioners in project management.
Specifically, the guidance does not specify the role that commissioners
play in the implementation and report preparation phases, nor does it
discuss the timing that commissioners should be involved throughout the
process. It is especially important to have clear guidance on
commissioner involvement because commissioners serve on a part-time
basis and are not headquartered in a central building. Clear guidance
on the nature and timing of commissioner involvement can help
commissioners prepare themselves to make substantive contributions to
implement a project and sharpen its conclusions and policy
recommendations. In addition, clear guidance can help commissioners
balance their commission duties with other professional duties and
travel commitments.
While the guidance addresses the role of commissioners in the last
stage of the product preparation phase--final revision and approval
prior to official release--this guidance only covers 2 of the 15 types
of products produced by the Commission: statutory reports and
clearinghouse reports.[Footnote 22] In fiscal year 2002, 3 of the
Commission's 32 products were either a statutory or a clearinghouse
report. Put another way, the guidance does not dictate that
commissioners give final review and approval for 29 of the 32 products
worked on in fiscal year 2002.[Footnote 23] The 13 product types not
covered by the guidance include, for example, briefings, briefing
papers, executive summaries, staff reports, and State Advisory
Committee reports.[Footnote 24] However, these reports address civil
rights issues and as such, they could benefit from review by
commissioners, as appropriate, as they are being developed.
Further evidence pointing to a lack of commissioner involvement in
project management is the very general nature of the monthly staff
reports--the main management tool currently used to keep commissioners
informed about the progress of projects. The monthly staff report is
prepared by the staff director and sent to commissioners in preparation
for the monthly Commission meetings. The report highlights the status
of selected on-going projects (the report may contain a summary of any
of the 15 product types). The staff director has the discretion to
select the projects to include in the monthly report. We reviewed the
11 monthly reports that the staff director sent to the commissioners
during fiscal year 2002 in preparation for the monthly Commission
meetings and found that information in those reports about the two-
volume statutory report (and other projects and reports) to be issued
during the year was limited to general descriptions of project status.
For example, regarding the Commission's statutory report, commissioners
were informed via the staff director's monthly reports that "progress
on the project has slowed" or "staff is working on an initial draft of
the report" or "staff has nearly completed a draft of the report."
These updates did not contain information about the project's costs or
staff day usage to date, nor potential findings or conclusions.
Likewise, during the 4-month period that the one clearinghouse project
and report were being developed, only one monthly report even mentioned
that project, and none of the four monthly staff reports made reference
to the anticipated product or the anticipated date of report issuance.
During our review, several commissioners told us that they are often
unaware of the status and the content of many of the written products
that result from approved projects until they are published or released
by the Commission to the public. Moreover, some commissioners expressed
dissatisfaction with the level of detail on project status contained in
the monthly report.
Some commissioners are increasingly concerned about their lack of
opportunity to review reports and other products drafted by Commission
staff before they are released to the public. These commissioners
believe that a lack of periodic commissioner input and review
undermines the opportunity for commissioners to help shape a report's
findings, recommendations, and policy implications of civil rights
issues. In June and July 2003, several commissioners expressed their
displeasure publicly about this lack of involvement by voting against,
or abstaining from, acceptance of Commission draft products, in part
because the commissioners had not had the opportunity to provide input
to those projects or products. Other commissioners voted to accept the
draft reports without commenting on their opportunity, or lack thereof,
to provide input.
Controls Over Commission's Contracting Procedures Are Insufficient:
The Commission on Civil Rights lacks sufficient management controls
over its contracting procedures. In fiscal year 2002, the Commission
did not follow proper procedures in awarding most of its 11 contracts.
For example, the Commission's largest dollar contract--currently
$156,000--is for media services and has been ongoing for over 3 years
with the same vendor. According to Commission officials, key
documentation on how the contract was initially awarded was missing
from contract files. Moreover, Commission officials did not follow the
legal requirements to obtain competition for subsequent media services
contracts. As a result, the Commission did not have all of the
information it should have had to determine if the contract pricing was
fair and reasonable. The Commission also has inadequate controls over
the administration of its contracts. For example, information on
specific tasks to be performed by vendors is communicated orally, not
in a performance based statement of work as required by regulation. As
a result, it is difficult for the Commission to track vendors'
performance against an objective measure and ensure that public funds
are used in an effective manner.
Proper Procedures for Awarding Contracts Were Not Followed:
The Commission did not follow federal contracting regulations for any
contracts initiated in fiscal year 2002 that were over $2,500.[Footnote
25] All but 4 of its 11 contracts were at or over this amount. When a
government agency purchases services, the contracting officer must
follow certain procedures, though these procedures vary slightly
depending on the contracting method. Using simplified acquisition
procedures, the contracting officer may select contractors using
expedited evaluation and selection procedures and is permitted to keep
documentation to a minimum. The agency still must, for contracts over
$2,500, seek competition to the maximum practical extent. If
circumstances prevent competition, agencies may award "sole-source"
contracts, but are required to justify them in writing.
A government agency may also issue orders against contracts that GSA
awards to multiple companies supplying comparable products and services
under its Federal Supply Schedule. The FAR and GSA procedures require
agencies to consider comparable products and services of multiple
vendors prior to issuing an order over $2,500.[Footnote 26] For service
orders, the agency must send a request for quotes (RFQ) to at least
three Federal Supply Schedule contractors based on an initial
evaluation of catalogs and price lists. The agency must evaluate the
quotes based on factors identified in the RFQ. GSA's ordering
procedures also state that the office ordering the services is
responsible for considering the level of effort and mix of labor
proposed to perform specific tasks and for making a determination that
the total price is fair and reasonable.
In fiscal year 2002, seven of the commission's contracts were for
amounts over $2,500, and the Commission did not follow proper
procedures for any of them. For example, in fiscal year 2002, the
Commission ordered its media services from a contractor listed on the
Federal Supply Schedule. Instead of requesting quotes from other
Schedule vendors, as required by GSA's special ordering procedures, the
Commission merely selected the same contractor to which it had made
improper awards in previous years using simplified acquisition
procedures.
A factor that likely caused the Commission to not follow proper
contracting procedures is that the Commission does not have personnel
who are sufficiently qualified to conduct several of the required
actions. The Commission has only two officials authorized to enter into
contracts: the Acting Chief of the Administrative Services and
Clearinghouse Division and the staff director.[Footnote 27] However,
both officials are operating with limited awareness of proper federal
contracting procedures.
By not following proper procedures, the Commission did not obtain the
benefits of competition and did not meet federal standards of
conducting business fairly and openly. For example, by not competing
its media services contract, and by using an incremental approach to
obtaining media services, the Commission did not make clear the fact
that it would have a recurring need for media services. Initially, in
April 2000, the media services contract was offered with a 90-day/
$25,000 maximum. A series of 90-day, 60-day, and even 30-day contracts
followed, none of which were competed. The Commission's relationship
with this media services vendor has evolved into what is now an annual
award with a maximum value of $156,000.[Footnote 28] The staff director
could not document for us whether the agency competed its media
services contract initially in 2000,[Footnote 29] and told us that it
did not compete subsequent awards, including the last 2 years using the
Schedule. In effect, the Commission denied itself the opportunity to
choose from a potential pool of bidders because other vendors were
likely unaware of the contract, the contract's potential value or both.
Contract Administration Lacks Sufficient Internal Control:
The Commission lacks sufficient internal control over the
administration of its contracts. Examples of internal control
activities[Footnote 30] include maintaining clear and prompt
documentation on all transactions and other significant events;
evaluating contractor performance; and segregating key duties and
responsibilities among different people to reduce the risk of error or
fraud. However, these elements of good organizational management are
not evident in the Commission's administration of its contract
activities. For example, the Commission has not met federal
requirements to establish and maintain proper contract files and to
report contract actions to the Federal Procurement Data Center (FPDC),
just a few of the numerous contract administration functions listed in
the FAR. As a result, the Commission is not promoting the transparency
necessary to keep the Congress and others informed about the
Commission's contracting activities.
Record-keeping and Reporting Standards Not Met:
According to federal regulations, an agency must establish and maintain
for a period of 5 years a computer file containing unclassified records
of all procurements exceeding $25,000.[Footnote 31] Agencies must be
able to access certain information from the computer file for each
contract, such as the reason why a non-competitive procurement
procedure was used, or the number of offers received in response to a
solicitation. Agencies must transmit this information to the FPDC, the
government's central repository of statistical information on federal
contracting that contains detailed information on contract actions over
$25,000 and summary data on procurements of less than $25,000.[Footnote
32]
The Commission has not followed federal regulations or established
internal control standards with regard to reporting transactions.
According to the Acting Chief of the Administrative Services and
Clearinghouse Division, and to officials at the FPDC, the Commission
has not met federal reporting requirements to the FPDC for at least the
last 3 fiscal years. The Acting Chief said that a lack of resources is
the reason for its noncompliance with this federal requirement.
Moreover, the FPDC was unaware that the Commission, which historically
had not entered into contracts over $25,000, now had contracts above
that amount. FPDC officials told us that when they contacted the
Commission, officials there told the FPDC that they were not able to
submit the data because, for example, of problems with its firewalls.
In addition, Commission officials did not accept FPDC's offer to come
to FPDC's offices and key in the data.[Footnote 33]
Little If Any Performance Monitoring Being Done:
According to federal regulations, agency requirements for service
contracts should be defined in a clear, concise performance-based
statement of work that enables the agency to ensure a contractor's work
against measurable performance standards.[Footnote 34] Despite these
regulations and principles of good management, the Commission has not
established a system to monitor contractors' performance, even for its
contract that exceeds $100,000. The Commission has no records that
document its decision-making on this contract. Lack of this basic,
well-established management control makes the Commission vulnerable to
resource losses due to waste or abuse.
Commissioner Participation in Contract Management Is Minimal:
An integral component of good organizational management is a strong
communication network between key decision-makers. To that end, it is
vital that information on key transactions be communicated among the
staff director, the commissioners and other key decision-makers. In
addition, internal control standards dictate that key duties and
responsibilities be divided or segregated among different people to
reduce the risk of error or fraud. This includes the separation of the
responsibilities for authorizing, processing, recording, and reviewing
transactions, and handling any related assets. No one individual should
control all key aspects of a transaction or event.
Due to the nature of the Commission's operating environment, the staff
director does not provide information on procurements to the
commissioners. According to the chairperson of the Commission,
contracting is one of the duties that the Commission has delegated to
the staff director. In fact, at public Commission meetings, when
commissioners raised questions concerning contracting activities and
sought information on contract cost and vendor performance, the
chairperson asserted that contracting is not an area with which
commissioners should be concerned. Moreover, a recent motion for
commissioners to, among other things, be provided with cost and status
information on contracts and other items failed to pass. Commissioners
reached a compromise and passed a subsequent motion; however, it did
not include the provision to receive information on contracts. Although
the commissioners are charged with setting the policy direction of the
agency, the Chairperson told us that the decision to contract out for a
service is not a policy decision. She told us that the decision for the
Commission to receive a certain service is a policy decision, but
whether or not to perform that function in-house or contract out for
it, is not. Since the contracting function is delegated to the staff
director, it is her position that the commissioners need not know any
details, unless there is an allegation of fraud, waste, or abuse on the
staff director's part. For the Commission's largest contract, however,
only the staff director has knowledge of what is being done, why it is
being done and how it is being done. The Acting Chief of the
Administrative Services and Clearinghouse Division is not involved
because of the dollar limit on her contracting authority. Without
greater transparency, the current operating environment has no
mechanism to elevate concerns about contractual impropriety to the
Commission.
No Independent Financial Audits Have Been Conducted in Recent Years:
The Commission's fiscal activities have not been independently audited
in at least 12 years. As noted in our 1997 report, the Commission is
not required by statute to have an Inspector General, which could
independently and objectively perform financial audits within the
agency. In addition, for the fiscal year 2002 audit cycle, the
Commission received a waiver from the federal requirement that its
financial statements be independently audited.[Footnote 35] The
Commission submitted a request to have the requirement waived for both
the fiscal year 2003 and 2004 audit cycles, citing a stable budget and
high costs incurred through the agency's conversion to a new accounting
system. OMB granted the waiver for fiscal year 2003, but denied the
request for the fiscal year 2004 cycle.[Footnote 36]
In addition to this lack of independent financial oversight, the
Commission's current financial situation is not transparent within the
agency. The majority of the agency's budget-related information is
centralized, with only the staff director and the chief of the Budget
and Finance Division having a detailed knowledge of the Commission's
financial status. However, both the body of the commissioners, which
heads the organization, and senior Commission officials, who are
responsible for planning and carrying out Commission projects, only
know what is reported to them by the staff director. On the basis of
our interviews with commissioners and other Commission officials, we
found that information on costs is limited. As a result of the
centralized nature of the Commission's financial operations, financial
oversight is structured in a way that precludes appropriate checks and
balances.
Moreover, the Commission has in place a policy that discourages
individual commissioners and their special assistants from making
inquiries of any nature to Commission staff and to direct all inquiries
to staff through the staff director.[Footnote 37] The policy dictates
that commissioners not make direct contact with staff but work through
the staff director to exchange information with staff and vice-versa.
According to Commission documentation, this policy is meant to ensure
that requests are carried out and to avoid confusion and difficult or
embarrassing situations between staff and commissioners. One memo we
saw even stated that violations of this policy could result in
appropriate disciplinary action. Another stated that circumventing the
staff director can only create confusion and disorder within the
agency. According to some commissioners we spoke with, as well as
senior Commission managers, this policy stifles communication and
productivity within the agency and creates an environment of
uneasiness.[Footnote 38] In addition, while some commissioners believe
it is their fiscal duty to oversee the financial activities of the
Commission and want complete financial information, others do not and
cite their part-time status as the reason why they do not seek more
information on financial activities. The commissioners who have the
latter view believe that the fiscal responsibility of the agency lies
with the staff director.
In the absence of independent financial oversight, what is known about
the Commission's financial status suggests an austere financial
picture. The staff director has characterized the Commission's
financial condition in public meetings as "challenging." In fact,
although the Commission's budget has remained at essentially the same
level for about the last 10 years, it has incurred several new costs
associated with operations. For example, the Commission recently
converted its accounting and payment processing system from the
National Finance Center (NFC) to the Department of Treasury's Bureau of
the Public Debt at a cost to the Commission of almost
$300,000.[Footnote 39] In addition, Commission officials cited an
increase of more than $130,000 in rent for the Commission's
headquarters and field offices over the past year. Moreover, the
Commission's financial condition has affected its operations. For
example, the Commission ordered a moratorium, citing funding
limitations, on all previously authorized and new travel by the
agency's regional staff or State Advisory Committee members between
late March 2003 and the end of July 2003. In addition, the Commission's
financial status has left it unable to reduce its high staff vacancy
rate, which now stands at 20 percent.[Footnote 40]
Conclusions:
While the Commission has taken steps in recent years to improve its
operations, it nevertheless continues to operate in a manner not fully
consistent with sound management principles. These principles dictate
that key decision makers receive timely information on project cost and
have a vehicle throughout the project process to communicate their
ideas and expertise. We recognize that commissioners should soon be
receiving more information on project costs than had been previously
received. While it remains to be decided whether the amount and timing
of this information will meet the Commission's needs, the challenge now
facing commissioners is to partner toward the strategic use of cost
information. In addition, the current level of commissioner involvement
in the reporting phase of Commission products does not ensure that
products are reflecting the full and wide-ranging expertise of the
commissioners and as such, the potential impact of Commission products
can be limited. This outcome can undermine the important mission of the
Commission--to help inform and guide the nation on civil rights issues:
The Commission's procurement of services is not being conducted in
accordance with established internal control standards or federal
regulations. We have long held that an agency's internal control
activities are an integral part of its planning, implementing,
reviewing, and accountability for stewardship of government resources
and achieving effective results. Without the proper internal controls,
there is little public assurance that funds are being spent in a proper
and effective manner. As a result of the Commission's weak contract
management operations, the Commission does not have all of the
information it should have to determine that the contracts it is
entering into are reasonable and offer the best value to the
government.
Although the dollar amount involved in its contracting activities
represents a small percentage of its overall appropriation, such
expenditures are growing. But regardless of the amount spent on
contracting, there is a need for the Commission to take steps now to
ensure that current and future contract actions are performed in
compliance with established regulations. If the Commission does not
adhere to these regulations, then transparency cannot be established
and no assurance can be given to the public that the Commission's
activities are leading to the proper and efficient use of public funds.
The Commission has not had an independent audit of its financial
statements in recent years. The requirement for the Commission to
prepare and submit an audited financial statement, included in the
Accountability of Tax Dollars Act of 2002, is an important step to
strengthening its financial and performance reporting. However, these
benefits have yet to be realized. Given the Commission's limited
financial management controls and current budget situation, the lack of
external oversightparticularly in terms of financial audits--may make
the Commission vulnerable to resource losses due to waste,
mismanagement or abuse. Although funding an independent audit could
represent a significant new cost to the Commission, these audits are
essential to the sound stewardship of federal funds. Our longstanding
position has been that the preparation and audit of financial
statements increase accountability and transparency and are important
tools in the development of reliable, timely, and useful financial
information for day-to-day management and oversight. Preparing audited
financial statements also leads to improvements in internal control and
financial management systems.
Recommendations:
To further the Commission's efforts to better plan and monitor project
activities, we recommend that the Commission:
* monitor the adequacy and timeliness of project cost information that
the staff director will soon be providing to commissioners and make the
necessary adjustments, which could include providing information on a
monthly rather than quarterly basis, as necessary; and:
* adopt procedures that provide for increased commissioner involvement
in project implementation and report preparation. These procedures
could include giving commissioners a periodic status report and interim
review of the entire range of Commission draft products so that, where
appropriate, commissioners may help fashion, refine, and provide input
to products prior to their release to the public.
To ensure proper contracting activities at the Commission, we recommend
that the Commission:
* establish greater controls over its contracting activities in order
to be in compliance with the Federal Acquisition Regulation. These
controls could include putting in place properly qualified personnel to
oversee contracting activities, properly collecting and analyzing
information about capabilities within the market to satisfy the
Commission's needs, and properly administering activities undertaken by
a contractor during the time from contract award to contract closeout.
While the Commission has received waivers from preparing and submitting
audited financial statements for fiscal years 2002 and 2003, we
recommend that the Commission:
* take steps immediately in order to meet the financial statement
preparation and audit requirements of the Accountability of Tax Dollars
Act of 2002 for fiscal year 2004. These steps toward audited fiscal
year 2004 financial statements could include, for example, (1)
identifying the skills and resources that the Commission needs to
prepare its financial statements in accordance with generally accepted
accounting principles and comparing these needs to the skills and
resources that the Commission presently has available; (2) preparing
such financial statements, or at least the balance sheet with related
note disclosures, for fiscal year 2003; and (3) ensuring that evidence
is available to support the information in those financial statements.
Agency Comments and Our Evaluation:
The U.S. Commission on Civil Rights provided us with two sets of
comments on a draft of this report. We received comments from four
commissioners and from the Commission's Office of the Staff Director.
Commissioners Kirsanow, Redenbaugh, Thernstrom, and Braceras concurred
with our conclusions and recommendations on the management practices at
the Commission. Their comments are reproduced in their entirety in
appendix III. We did not receive comments from the remaining four
commissioners, who include both the chairperson and the vice-chair of
the Commission.
In comments from the Office of the Staff Director, the staff director
pointed out that the Commission is committed to ensuring that its
operations are well maintained and will consider implementing whatever
recommendations and suggestions that appear in the final report.
However, the staff director believed that many of the findings were
inaccurate and that aspects of the draft report contained errors,
unsubstantiated allegations, and misinterpretations. For example, the
staff director disagreed with our finding that the Commission lacks
sufficient management controls over its contracting procedures and
concluded the Commission's overall fundamental contract practices are
sound. Similarly, he disagreed with our findings concerning weaknesses
in project and financial oversight. After carefully reviewing his
concerns, we continue to believe that our conclusions and
recommendations are well founded. The staff director's detailed
comments and our responses to them are contained in appendix IV.
Finally, the staff director also provided a number of technical
comments and clarifications, which we incorporated, as appropriate.
As arranged with your office, unless you announce its contents earlier,
we plan no further distribution of this report until 30 days after its
issue date. At that time, we will provide copies of this report to
interested congressional committees. We are also sending copies to the
commissioners and the staff director, U.S. Commission on Civil Rights.
We will also make copies available to others upon request. In addition,
the report will be available at no charge on GAO's Web site at http://
www.gao.gov.
Please contact me on (202) 512-7215 or Brett Fallavollita on (202) 512-
8507 if you or your staff have any questions about this report. Other
contact and staff acknowledgments are listed in appendix V.
Sincerely yours,
Robert E. Robertson,
Director, Education, Workforce, and Income Security Issues:
Signed by Robert E. Robertson:
[End of section]
Appendix I: Scope and Methodology:
During our review of the U.S. Commission on Civil Rights' activities,
we focused on the management of individual projects, as we had done
during our 1997 review and examined them in the context of broader
management issues at the Commission. For example, to analyze the
Commission's expenditures on projects since 1997 in the context of both
the project spending discussed in our 1997 report as well as in
comparison with the Commission's most recent budget request, we
reviewed the Commission's annual Request for Appropriation for fiscal
years 1999 through 2004, which provided data on how the Commission
actually spent its appropriations for fiscal years 1997 through 2002.
We noted that the Commission's fiscal year 2004 Request for
Appropriation requests a significant increase in funding, from $9
million in fiscal year 2002 to $15 million in fiscal year 2004.
Consequently, we not only focused on how well the Commission currently
manages its projects, but also considered the implications of
potentially significant increases in project and product spending and
the human resources need to properly manage such increases.
We used a combination of Office of Management and Budget (OMB), private
sector, and our own guidance as criteria to identify key elements of
good project management. These criteria included U.S. General
Accounting Office, Standards for Internal Control in the Federal
Government, GAO/AIMD-00-21.3.1 (Washington, D.C.: Nov. 1999);
Preparation and Submission of Budget Estimates (2002) (OMB Circular No.
A-11, Part 2); Project Management Scalable Methodology Guide (" 1997,
James R. Chapman); A Guide to the Project Management Body of Knowledge
(PMBOK‚ Guide)--2000 Edition (The Project Management Institute, Sept.
2003); and Project Management--Conventional Project Management
(Northern Institute of Technology, Hamburg, Mar. 2002). Our standards
for internal control list top-level review of actual performance (e.g.,
commissioner review of actual project cost) as a key control activity.
OMB Circular No. A-11 emphasizes the importance of managing financial
assets.
To supplement the general guidance on good project management
principles described in OMB's and our guidance to agencies, we
identified several private sector principles, practices, and techniques
for good project management at the individual project level. For
example, the Project Management Scalable Methodology Guide (" 1997,
James R. Chapman) and the Project Management Institute's A Guide to the
Project Management Body of Knowledge (PMBOK‚ Guide)--2000 Edition
identify project management principles for small, straightforward
projects as well as a best practices approach for large, complex
projects. According to these principles, regardless of project size or
degree of risk, sound project cost management calls for comparisons
between project plans and actual project performance--even for projects
with minor levels of investment and low risk.
We reviewed the most recent complete fiscal year's project activities
at the time of our review (fiscal year 2002) and identified 22 projects
and 43 products (briefings, executive summaries, internal memorandums,
reports, etc.) that resulted from those projects. Of the 43 total
products that resulted from these projects as of July 2003, we included
in our review the 32 issued during fiscal year 2002. We excluded 3
products issued during fiscal year 2001 and 8 products issued or
expected to be issued during fiscal years 2003 or 2004.
Table 2 provides details about project names and product titles
produced during fiscal year 2002 by those offices that generate
headquarters Commission products that result from commissioner-
approved projects: the Office of Civil Rights Evaluation (OCRE), the
Office of General Counsel (OGC), and the Office of the Staff Director
(OSD). The OSD product resulted from a project initiated by the staff
director rather than from the commissioners. Table 2 also includes a
State Advisory Committee report from Alaska because OCRE staff assisted
in preparing the report. The table excludes an Arizona State Advisory
Committee briefing and State Advisory Committee reports from Iowa and
Pennsylvania in 2002 because OCRE staff were not involved in preparing
the briefing or those reports. Some fiscal year 2002 projects will
generate products in future years. (See app. II.):
Table 2: OGC, OCRE, and OSD Projects and Products, Fiscal Year 2002:
[See PDF for image]
Source: Commission staff.
[A] This list of OGC products does not reflect that OGC also produces
internal briefing books for the commissioners in connection with
hearings and briefings. OGC briefing books include a briefing or
background paper; briefing or hearing agenda; witness lists with
biographical information; copies of reports or studies conducted by
each witness that are relevant to the issues presented; an explanation
of the purpose and scope of the witness panels; relevant federal and
state statutes; and other information deemed necessary for
understanding the subject matter being presented during the hearing or
briefing. Briefing books are prepared for commissioner use only, may
contain privileged material, and are not made available to the public.
[B] The Commission originally approved a project titled Native American
Access to Justice for fiscal year 2001. The project was postponed until
fiscal year 2002 due to emerging issues and other project work. During
fiscal year 2002, the project was again postponed due to the
Environmental Justice and the Education Accountability projects being
given higher priority and for additional commissioner guidance to staff
about the nature and scope of further Native American project work. The
Commission terminated the access to justice project in November 2002,
and in January 2003 changed the focus of the Native American project
from administration of justice to health care. According to the staff
director, there were no costs associated with either the access to
justice project or the health care project during fiscal year 2002.
[C] According to the staff director, the work performed for the Racial
Privacy Act briefing and summary was charged under a general legal code
and, therefore, there were no specific cost data for this activity. The
OGC deputy general counsel told us that the practice of using a general
legal code sometimes occurs when staff perform general or miscellaneous
legal work of short duration that needs to be completed within brief
time frames. The deputy explained that legal work associated with most
projects approved by the Commission is charged to the specific
individual code established for each project assigned to the General
Counsel' s office.
[D] According to the staff director, the costs associated with OCRE's
work on the Alaska State Advisory Committee Report were not tracked by
office but were captured to include all State Advisory Committee
expenses associated with this project. However, the staff director did
not provide us with a total cost figure for this project or with the
proportion of total costs that were spent by headquarters staff and by
the region. If the Commission's project cost accounting system is to be
considered accurate and complete, it should be able to account for the
total costs associated with this type of field-headquarters
collaborative effort product.
[E] According to the staff director, in fiscal year 2002 the Funding
Civil Rights Enforcement project was tracked by OCRE as a monitoring
activity, and a separate code for that project has been established
since that time.
[F] THE COMMISSION APPROVED AN OCRE NATIVE AMERICAN PROJECT IN DECEMBER
2001. OCRE BEGAN WORK ON THIS PROJECT IN SEPTEMBER 2002.
[G] The project team leader told us that his time associated with the
OSD's work on the anniversary update project was not charged to a
separate code established for that report, but rather was charged to a
general code that includes many similar types of relatively short-term
efforts. This project was initiated by the staff director rather than
by the commissioners.
[H] Excludes costs for those projects and products described in notes b
through g.
[End of table]
[End of section]
Appendix II: Products Issued or Expected to Be Issued after Fiscal Year
2002:
This appendix lists the number of products, by type of product, issued
or expected to be issued after fiscal year 2002 from projects that were
ongoing during fiscal year 2002. (See app. I.):
Table 3: Number of Products Issued or Expected to Be Issued after
Fiscal Year 2002 by OCRE and OGC from Projects That Were Ongoing during
Fiscal Year 2002, by Type of Product:
Type of product: Briefing[A]; OCRE: 0; OGC: 1; Total: 1.
Type of product: Correspondence[B]; OCRE: 1 (January 2003); OGC:
0; Total: 1.
Type of product: Executive summary[A]; OCRE: 0; OGC: 1; Total: 1.
Type of product: Hearing[C]; OCRE: 0; OGC: 1 (FY 2004); Total: 1.
Type of product: Project summary; OCRE: 0; OGC: 1 (January
2003)[D]; Total: 1.
Type of product: Report; OCRE: 1 (July 2003)[E]; OGC: 1 (FY 2004)[A]; 1
(FY 2004)[C]; Total: 3.
Type of product: Staff analysis; OCRE: 0; OGC: 1 (October
2002)[F]; Total: 1.
Type of product: Staff report; OCRE: 1 (November 2002)[G]; OGC:
0; Total: 1.
Type of product: Total; OCRE: 3; OGC: 7; Total: 10.
Source: Commission staff.
[A] Education Accountability project briefing February 2003, executive
summary May 2003, and report due fiscal year 2004.
[B] The Individuals with Disabilities Education Act Reauthorization.
[C] Native American Project Health Care hearing (or briefing) and
report projected for fiscal year 2004.
[D] Crossing Borders: The Administration of Justice and Civil Rights
Protections in the Immigration and Asylum Context.
[E] A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country.
[F] Supreme Court Civil Rights and Related Cases: The 2001 - 2002 Term.
[G] Beyond Percentage Plans: The Challenge of Equal Opportunity in
Higher Education.
[End of table]
[End of section]
Appendix III: Comments from Four Commissioners:
October 14, 2003:
Mr. Robert E. Robertson Director:
EWIS-Room 5928 General Accounting Office Washington, D.C. 24548:
Re. GAO-04-18, U.S. Commission on Civil Rights: Mare Operational
Financial Oversight Needed (Report to the Chairman, Subcommittee on the
Constitution Committee on the Judiciary, House of Representatives):
Dear Mr. Robertson,
We write to inform you that we, the undersigned Commissioners, concur
with the conclusions and recommendations contained in the GAO report on
the management practices of the U.S. Commission on Civil Rights. We
respectfully submit these comments for inclusion in the final published
version of the report so that we might inform you and the public at
large of some of our own concerns regarding Commission management
practices, and so that we might clarify the important implications of
this report.
As you are aware, this report underscores many of our longstanding
concerns regarding the Commission's integrity and ability to function
effectively. 1n particular, the report raises two global questions
about the administration of this agency: (1) Who is in charge? (2) Who
has the authority to speak for the Commission? In both cases, one thing
is clear It is not the Commissioners.
(1) Who is in charge?
As this most recent GAO investigation clearly indicates, very few of
the reports published by the Commission in 2002 were, in fact, approved
by the Commissioners. Instead, the staff director chose not to bring
reports to a vote of the Commission and simply disseminated "staff
reports" and other documents claiming that Commission approval was not
required. As this report also makes clear, Commissioners often do not
have the opportunity to review official Commission documents before
they are released to the public.
To summarize, Commissioners have little input into most Commission
projects and activities and are expected to defer unquestioningly to
the staff director's recommendations. On more than one occasion,
Commission Chairman Mary Frances Berry has stated that Commissioners
should not ask questions and should simply let the staff "do their
jobs." This notion, that the Commission exists merely to rubberstamp
the decisions of the staff constitutes an abdication of the agenda-
setting function of the Commission and demonstrates how Commissioners
are treated as peripheral to the work of the Commission.
The failure to allow any significant Commissioner input into reports
and other Commission projects is not simply a management problem. It is
also a problem of duality control and casts serious doubt on the
Commission's ability to execute its core function to issue findings and
make recommendations to the President and Congress.[NOTE 1]:
(2) Who Speaks for the Commission?
The Chairman routinely issues press releases, public statements, and
letters to high-ranking elected officials on behalf of the entire body
without authorization from the Commission and without first notifying
the Commissioners or circulating a draft document to Commissioners.
We have protested these practices many times but have found that the
staff is unresponsive and is either unable or unwilling to change. In
part, this is because the Commission operates along an inefficient,
vertical administrative structure that isolates the staff from the
Commission-The only link between these two groups is the staff director
who claims, as GAO points out, to serve the Commission as a body, not
the Commissioners as individuals. In reality, however, this structure
concentrates all power in the hands of the staff director and the
Commission's senior staff enabling those officers to circumvent the
Commissioners, who should be the Commission's primary source of
political legitimacy and accountability.
Additionally, there are no internal or external mechanisms to provide
disinterested and objective audits of the Commission's operational and
financial processes. For example, the Commission's statute does not
provide for an Inspector General who could assess internal issues
independently from the Commissioners or the staff director. Its
Administrative Instructions are applied randomly principally because
the staff director does not feel bound by them. Even though the statute
provides for a general counsel who would be the legal advisor to the
Commission and the Commissioners, that position is vacant The person
currently serving as deputy general counsel concurs with the Chairman's
understanding that she too serves the Commission as a body through the
staff director.
This structural and administrative dysfunction at the U. S. Commission
on Civil Rights is not new. In its 1997 report, "U.S. Commission on
Civil Rights: Agency Lacks Basic Management Controls," GAO reported on
the dismal management and structural issues at the Commission. This
report recommended that the USCCR update its regulations, improve its
internal management guidance, and establish a management information
system.
Six years later, the Commission has yet to implement the first
recommendation. It has not published updated regulations that
accurately reflect the Commission's practices. In response to a
congressional inquiry in 2002, the Commission did send a version of the
regulations to the Federal Register. However, this version did not
reflect the 1998 Commission's vote and adoption of draft regulations.
Further, when Commissioners inquired in 2002 and 2003 as to why the
updated version of the Commission's regulations did not reflect the
consensus of the Commissioners, the deputy general counsel
characterized serious mistakes in the regulations as "typos" and stated
that there would be amendments. As of the date of this letter, the
amended regulations have not been published in the Federal Register and
Commissioners have not received an update.
Without clear and substantive lines of authority between the
Commissioners, the staff director, the senior staff, and the staff, the
Commission is unaccountable and inevitably inefficient. Many of this
report's findings reveal examples of such inefficiency - i.e., the
Commission's dismal contracting practices, its disturbing relationship
with its public relations firm, and the lack of qualified personnel at
the Commission to handle contracting functions [NOTE 2].
A culture of unaccountability is a firmly entrenched feature of the
Commission's administrative character. Structural changes geared to
clarify the ministerial function of the staff director and to increase
Commissioner involvement in shaping the Commission's reports, findings
and policy recommendations should be a predicate to further
appropriations.
The Commission could function as the nation's conscience if its
deliberative processes were rational, open, and fair; its findings
objective and unimpeachable; and its membership fully engaged in
framing, shaping and drafting its reports. Instead, the Commission
teeters on irrelevance. In short, we agree with the sentiment expressed
in a recent Washington Post editorial. "A serious, rigorous commission
could create breathing space for creative civil rights dialogue
unbeholden to the orthodoxies of either the left or
the right." [NOTE 3] Unfortunately, the Commission as currently
managed, is far from achieving this goal.
Signed by:
Peter N. Kirsanow, Commissioner:
Russell G. Redenbaugh, Commissioner:
Abigail Themstrom, Commissioner:
UNITED STATES COMMISSION ON CIVIL RIGHTS:
624 Ninth Street, N.W.:
Washington, D.C. 20425
October 14, 2003:
Mr. Robert E. Robertson Director:
EWIS Room 5928
General Accounting Office Washington, D.C. 20548:
Re. GAO-04-18, U. S. Commission on Civil Rights: More Operational
Financial Oversight Needed (Report to the Chairman, Subcommittee on the
Constitution, Committee on the Judiciary, House ofRepresentatives):
Dear Mr. Robertson,
I respectfully concur with the conclusions and recommendations
contained in the above-referenced report on the U.S. Commission on
Civil Rights. I write separately to urge Congress and the GAO to
continue monitoring the Commission and its compliance with the
recommendations contained herein. I am hopeful that with the
implementation of sound management practices and continued public
monitoring we might begin to restore the political legitimacy of this
once respected federal agency. Thank you for your role in that
enterprise.
Sincerely,
Signed by:
Jennifer C. Braceras:
Commissioner:
NOTES:
[1] Although GAO's narrow mandate did not include an assessment of the
quality of Commission products, we have found that the reports lack the
substantive and methodological rigor worthy of the Commission's history
and seal:
[2] Some Commissioners and other outside advocates have argued that
increased appropriations would resolve many of the Commission's
problems. We disagree. If management were sound, the Commission could
do more with less. The Commission, according to GAO, has not taken
effective steps to streamline or appropriately track key cost
information. Neither commissioners nor senior Commission staff
systematically receive project cost information. The Commission refuses
to compete or justify its largest dollar services contract and to fully
utilize the Commissioner's expertise, which is considerable, on
management and policy issues. And, in spite of requests for detailed
financial information, the Staff director is unwilling or unable to
produce it.
[3] Sins of the Commission, WASHINGTON POST, February 11, 2002.
[End of section]
Appendix IV: Comments from the Commission's Staff Director:
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
UNITED STATES COMMISSION ON CIVIL RIGHTS WASHINGTON, D.C. 20425:
OFFICE OF STAFF DIRECTOR:
October 15, 2003:
Robert E. Robertson Director:
Education, Workforce, and Income Security Division
U.S. General Accounting Office
441 G Street, N.W. Washington, D.C. 20548:
Re: GAO Draft Report:
Dear Mr. Robertson:
This letter is in response to the draft report prepared by GAO. We have
reviewed the report closely and are both pleased that it recognizes the
positive aspects of the agency's management processes, as well as
concerned with some of its analysis of the Commission's management
issues. We are particularly pleased that the report acknowledges the
Commission has addressed the concerns highlighted in GAO's last
examination of the agency in 1997. We agree with the draft report's
assessment that since 1997, the Commission has updated its management
policies and procedures to better manage projects in the following
ways:
* Establishing and clarifying the roles of the Staff Director and
senior Commission staff.
* Ensuring the Budget and Finance Division regularly
provides spending data by office and function to the Staff Director to
enable him to track the status of agency expenditures by organizational
component at headquarters and field offices.
* Implementing a combination of techniques, such as weekly staff
meetings, weekly or monthly reports from staff, and computer-generated
schedules to monitor large, complex projects, to ensure that project
deadlines are met.
* Ensuring that project leaders routinely monitor projects so they stay
on schedule.
The Commission also responded to GAO's 1997 recommendations by revising
the agency's Administrative Instruction Manual, implementing a project
tracking system, and revising the agency's regulations.
We are also pleased that the report determined that the Commission's
project management procedures allow Commissioners, the Staff Director,
senior Commission staff, and project team leaders to effectively manage
long-range projects that take a year or more to complete, as well as
time-critical projects that take several months or weeks to complete.
In addition, we find it noteworthy that your examination of current
Commission operations revealed no "management and administrative
improprieties" as were reported in GAO's 1988 examination of the
Commission. [NOTE 1]
We are concerned, however, with some findings in the draft report
relating to the Commission's project management procedures, as well as
the other two main areas examined in the report relating to financial
oversight status and contracting procedures. Many of the findings in
these areas are inaccurate, and there are aspects of the draft report
that must clearly be modified. The remainder of this response will
point out errors, unsubstantiated allegations, and misinterpretations
presented in the draft report in each of these three areas that should
be corrected in the final version.
PROJECT MANAGEMENT:
GAO's suggestions for future changes do not reveal any current
deficiencies in the area of project management. In fact, here GAO
focuses exclusively on the role of the Commissioners, misinterpreting
their duties and purpose.
The draft report presumes that it is desirable for Commissioners to
shape a report's findings and recommendations when the Commission has
specifically rejected this view. The Commission has a long history of
the career civil servant staff researching and drafting reports with
conclusions supported by the facts.
Although Commissioners do not have a role in influencing the findings
and recommendations in reports while they are being written, the GAO
draft fails to acknowledge that Commissioners are provided
opportunities to shape the scope of reports. For example, during the
annual project planning meeting, Commissioners actively debate and
provide specific feedback to project managers on the scope, potential
resources, duration, and the scheduling of projects in light of
existing priorities. Commissioners have the opportunity to meet with
the Staff Director and appropriate staff members to be briefed on the
progress of the projects. I have never turned down such a request.
Additionally, as noted in footnote b on page 32, Commissioners change
the scope of projects during Commission meetings throughout the year,
providing another avenue for Commissioner involvement in project
development.
The draft report minimizes the amount of information provided to
Commissioners about ongoing projects. Pursuant to their requests, last
month the Commissioners received a timely quarterly report on project
and office costs. This report will be forwarded to the Commissioners
each quarter. Pages 7 and 13 of the draft report should be corrected to
reflect this recent development. In addition, the draft report fails to
mention the project costs data and staff hours information that
are regularly shared with project managers. The timeliness of
Commission reports without any sacrifice to quality should be
emphasized in the draft report.
Additionally, in GAO's initial letter to the Commission defining the
scope and purpose of this review, written by Ms. Cynthia Fagnoni and
dated December 18, 2002, GAO noted that examination for compliance with
prior GAO recommendations was one of two key GAO objectives. Clearly,
this is an important issue to GAO, and it is only fair that our success
in addressing GAO's recommendations, such as improvement in timeliness
of reports, is acknowledged in the final report, rather than minimized
in footnote 18. The report in footnote 18 states that as the scope of
the 1997 report and the current report are different, a comparison on
report timeliness is methodologically inappropriate. However,
regardless of the scope of either report, it is clear that the
Commission completed 21 projects in fiscal year 2002 - in contrast to
the 1997 GAO report, which found that, "[d]uring fiscal years 1993
through 1996, the Commission completed 5 projects, deferred 10 others,
and worked on another 7 that were still ongoing at the end of fiscal
year 1996." GAO also found no evidence of lower quality in the
Commission's current products. Moreover, the draft report recognizes
that the Commission has instituted project planning procedures ensuring
that project deadlines are met. Thus, the final report should
acknowledge the improvement of timeliness in completion of projects.
Additionally, we provide the following responses to specific portions
of the draft report section on project management.
Page 2 Results in Brief:
The fourth sentence should specify that detailed costs information is
now flowing to the Commissioners and the staff.
Page 3 Results in Brief:
For the reasons stated above, we do not believe the last sentence in
this section is necessary. To the extent that the sentence remains in
the report, it should specify that the report contains recommendations
for improving project management at the Commissioner level. This
distinction should be made, because the report does not offer
recommendations to either the Office of the General Counsel (OGC) or
the Office of Civil Rights Evaluation (OCRE) for improving project
management.
Pages 3-4 Background:
On page 3 the report states, "[t]he eight commissioners have two
principal responsibilities - investigating claims of voting rights
violations and studying and disseminating information, often collected
during specific projects, on the impact of federal civil rights laws
and policies." Please provide a citation for that sentence and see the
Commission's authorizing statute for a correct description.
Page 7 Procedures Have Improved but Lack Some Key Elements of Good
Project Management.
After the first sentence, insert language to the following effect:
"Project management has improved to the extent that office managers now
establish project timelines and report progress
toward goals in monthly written reports to the Staff Director. Project
milestone dates also are routinely provided to Commissioners in monthly
reports from the Staff Director.":
After the third sentence, it should be restated that GAO did not find
evidence of lower quality products.
Page 11 Table 1:
The following corrections should be made to the OCRE portion of the
table on page 11 and to appendix I:
Briefings: 4 (Voting rights, IDEA, Welfare, Bioterrorism) Staff
reports: 2 (Election Reform, Percentage Plans):
Also, GAO misses some products that should be added. The relevant
source documents are attached to this letter.
Briefing paper: 3 (GAO did not list the welfare briefing paper.)
Correspondence: 2 (GAO did not list the welfare letter.):
TOTAL: 17 products should be listed on page 11 in the OGRE column (as a
result of above changes).
The following corrections should be made to the OGC portion of the
table on page 11 and to appendix 1:
Briefing paper: 5 (2 on Environmental Justice, 1 on Education
Accountability, Florida Election Reform, and Racial Data Collection
(assisting OSD)). In addition, there was no staff analysis in fiscal
year 2002 for OGC. The item GAO refers to as a staff analysis is the
briefing paper on Florida election reform.
Briefings: 6 (3 on Crossing Borders, 1 on Florida Election Reform,
Education Accountability, and Racial Data Collection (assisting OSD)).
Executive Summaries: 6 (3 on Crossing Borders, 1 on Education
Accountability, Florida Election Reform, and Racial Data Collection
(minimally assisting OSD)). The draft report misidentifies some of the
six summaries as briefing summaries and fails to count all the work
produced when both categories are counted.
Page 15:
First full paragraph. The text suggests that Commissioners did not
discuss the Percentage Plan report. However, it was discussed at the
November 15 meeting in San Diego. The relevant portion of the
transcript is attached to this letter.
Page 31 Appendix I:
The table needs to be corrected as follows:
Item 21 the words "Briefing Paper" should be in bold because it fits
the definition on the preceding page.
Add item 34: Welfare Reform Briefing Paper Add item 35: Welfare Reform
Correspondence:
Re-number to allow for above changes. There should be 38 products
total.
Footnotes:
The second footnote should indicate that it is specifically referencing
a project assigned to OGC because there was a separate OGRE project
during the same time.
Since collateral duties of other offices are noted, a footnote should
be added to the effect that OCRE has responsibility for processing/
referring the more than 4,000 complaints that the Commission receives
annually. It is noteworthy that during the review period, OCRE staff
also covered Public Affairs Unit (PAU) functions such as producing The
Civil Rights Journal, scanning daily newspapers for civil rights-
related news, clipping and distributing relevant news items to
Commissioners and the staff, briefing international visitors, and
planning special-emphasis months.
Page 33 Appendix II:
Correspondence: As stated above, the Correspondence listed here was
assigned 12 days before the close of the fiscal year, thus there was
not an expectation that it would be implemented before the end of the
fiscal year.
Staff Report: This report was assigned to OGRE in June by the Staff
Director. There was not an expectation that it would be completed and
released before the end of September.
For the foregoing reasons, the two deliverables referenced here do not
qualify as being carried over from the previous year.
FINANCIAL OVERSIGHT:
The financial oversight section of the draft report, like others,
contains inaccuracies and simply makes recommendations without any
findings of improper conduct or mismanagement. It is completely
appropriate that the Staff Director relay financial information to the
Commissioners. Page 22 of the draft report implies that this flow of
financial information from the Staff Director to the Commissioners is
in someway wrong without providing any further explanation.
The reference to the Commission's longstanding policy on Commissioner
and staff interaction is inappropriate, but somewhat typical of more
than a few of GAO's suggestions. That is, it argues for overturning a
policy that has always existed at the Commission, as far as we can
tell, and certainly since the early 1980's. Responsibility for
determining policy on Commissioner interaction with staff is a function
delegated by statute to the Commissioners, and the Commissioners have
reaffirmed on numerous occasions the current policy regarding
interaction with staff. GAO did not make any findings of impropriety in
this policymaking process, as
indeed they could not, since the policymaking is entirely appropriate.
The policy also does not dictate that the Staff Director reply only to
the Commissioners as a body, as stated on page 22. On the contrary,
information is routinely provided to individual Commissioners and their
Special Assistants in response to their inquiries.
CONTRACT ACTIONS:
Regarding GAO's draft criticisms of the Commission's contracting
processes for contracts entered into or ongoing in fiscal year 2002,
the characterizations and assertions in GAO's draft report are
overstated and erroneous.
Commission's contract practices are fundamentally sound:
In pursuing contract actions each year, whether by small-scale purchase
orders, interagency agreements, or contracts with private entities, the
Commission's contract practices are fundamentally sound. The Commission
takes part in hundreds of contract actions-both large and small, and of
varying complexity-each year to procure goods and services. These
contract actions can come in a variety of arrangements. Most of them
are in the form of credit card purchases or purchase orders issued
directly to vendors. As the Commission is a very small agency with a
yearly budget of approximately only $9 million, most of its purchases
of goods and services are modest and done through small scale purchase
orders below the micro-purchase threshold.
For the majority of its large dollar purchases of goods and services
(i.e., more than $25,000 under simplified acquisition procedures), the
Commission enters into interagency agreements with other federal
agencies such as the General Services Administration (GSA), the Library
of Congress (LOC), the National Finance Corporation (NFC), the Bureau
of Public Debt (BPD), and the Government Printing Office (GPO). For
example, information technology product and service purchases for the
Commission's local area network, to date worth close to $300,000, are
done by interagency agreement with GSA. GSA also administers the
Commission's rent agreements. The Commission obtains Lexis-Nexis and
media subscription services from LOC worth between $100,000 and
$200,000, and payroll and budgeting services from NFC and BPD, also
worth several hundred thousand dollars. The Commission also pays GPO
several tens of thousands of dollars each year for printing and storage
services.
The Commission occasionally also enters into contracts with private
entities for purchase of goods and services exceeding the micro-
threshold. Thus, for example, the Commission has, at times, contracted
out various functions to the private sector, such as the drafting of
certain state advisory committee reports, the provision of background
investigation services, and the provision of some media services.
Out of these hundreds of contract actions, the draft report addresses
only 12 and takes to task, without detail, eight. As an initial matter,
the Commission is able to identify only 11 contracts (seven above
$2,500) that GAO requested to examine that were entered into or ongoing
in fiscal
year 2002. [NOTE 2] Second, although the draft report acknowledges in a
footnote that the Commission entered into a multitude of administrative
contracts in fiscal year 2002, it does not include them in the final
contract figures, instead leaving the wrong impression that the
Commission entered into only 12 contracts for the entire fiscal year,
and that it did not follow contracting regulations in a majority of its
contract actions. In reality, out of the hundreds of contract actions
that the Commission undertook, GAO stated that it considered only eight
contained any possible problems. Thus, the Commission's overall
fundamental contract practices are sound.
Contract actions identified by GAO:
Documentation and micro-purchase thresholds:
It is difficult to respond to the assertion that the Commission did not
follow proper procedures in awarding eight contracts over the GAO-
identified micro-purchase threshold of $2,500, since the draft report
does not identify all eight contracts and does not describe all the
alleged deficiencies in the contracting actions. While the Commission
cannot be certain as to the specific alleged deficiencies to which the
draft report refers, the characterization in the draft report is
nevertheless overbroad and incorrect, as the vast majority of any
possible contracting anomalies falls into two main categories-
documentation and alternate assumptions as to the micro-purchase
threshold.
The Commission acknowledges that it could improve its documentation and
recordkeeping procedures in terms of its contract file maintenance, and
we are examining the issue to improve the situation. The draft report,
however, confuses and blurs the documentation issue with other alleged
errors. For example, the draft report erroneously states that the
Commission did not follow legal requirements to compete its media
services contract. However, as we explained on multiple occasions to
GAO, the Commission did compete the initial media services contract,
and in instances where competition was not obtained, the Commission was
operating under the exception outlined in sections 13.106-1(b) & (c)
and others provisions of the FAR.[NOTE 3]Thus, at most, there was
simply missing documentation in the contract file reflecting these
processes - an area that the Commission acknowledges needs improvement.
In at least two of the seven contracts over $2,500 examined by GAO,
this was the case.
Three of the remaining five contracts [NOTE 4] over $2,500 examined by
GAO were for minimal amounts less than $5,000 and treated as micro-
purchases, which do not need to be competed. Here, the Commission
believed there was a test provision in which the micro-purchase
threshold had been raised to at least $5,000. While it appears that
the applicable micro-threshold may actually be $2,500, the Commission
was operating under an honest belief of the applicability of the
higher threshold. Thus, even if the Commission made a mistake, the
contracts at issue were at most, only a few thousand dollars and a
couple of thousand dollars over $2,500-a tiny percentage of the
Commission's contract totals.
Promoting competition:
The draft report statement that the Commission did not obtain the
benefits of competition and suggestion that the Commission did not
compete any of its contracts are also inaccurate. The statement ignores
the various instances that the Commission has taken to compete
contracts exceeding the micro-purchase threshold. As noted above, the
Commission competed the initial media services contract. With respect
to the remaining two contracts over the micro-purchase threshold
(regional office report preparation and graphic design contracts) that
GAO examined, the Commission issued multiple requests for quotations
under simplified acquisition procedures and obtained the benefits of
competition.
Furthermore, with respect to the Commission's GSA Federal Supply
Schedule contract for subsequent media services, per GSA's own
regulations, "GSA has determined that the prices for services contained
in the contractor's price list applicable to this [Federal Supply]
Schedule are fair and reasonable." Normally, when ordering goods, no
additional competition is required and an agency can simply choose a
vendor off of the supply schedule. At the time of the subsequent media
services contract, this was true of service orders as well. Therefore,
contrary to the assertion in the draft report, ordering off of the GSA
Federal Supply Schedule was proper and was already indicative of
obtaining benefits of competition, such as assurance of fair and
reasonable value. [NOTE 5]:
Promoting not iust competition but disadvantaged small businesses_ and
simplified rules:
The exclusive focus of GAO's draft report on the benefits of
competition ignores other equally important goals of government
contracting. While reaping the benefits of competition is a valid goal
of government contracting regulations, the draft report does not
discuss the statutorily mandated goals of promoting traditionally
disadvantaged small businesses in government procurement and pursuing
simplification of contracting procedures. In doing so, GAO unfairly
imposes its own subjective and arbitrary judgment as to the relevant
goals of the Commission's contracting practices without sufficiently
weighing other important statutory and regulatory considerations.
Disadvantaged small businesses:
Beyond the simple goal of competition, the Commission, also puts great
value in promoting the hiring of traditionally disadvantaged and women-
owned small businesses-a government goal codified in and exemplified by
the Small Business Administration's (SBA) 8(a) program. For
example, the Commission's media services vendor is both minority and
women owned and operated, and has been 8(a) qualified for the entire
time it has been under contract with the Commission. In 2001, the
Commission wished to enter into a new contract with the vendor under
the SBA's 8(a) program, which specifically permits sole sourcing, but
decided to select the vendor off of a GSA Federal Supply Schedule, due
to limited staff resources at the time preventing pursuit of the 8(a)
process. [NOTE 6] Furthermore, in contracting out media services, the
Commission was acting consistent with OMB Circular A-76, which
encouraged that government commercial functions be contracted out to
the private sector, such as small businesses, wherever possible. In any
event, the Commission was seeking the most efficient and cost effective
way to accomplish the Commission's media service goals. [NOTE 7]
Simplified contracting procedures:
Another goal of government contracting regulations is to streamline
contracting through the implementation of simplified acquisition
procedures, a very important objective-especially for small agencies
such as the Commission that do not often enter into high dollar,
complicated contracts exceeding the simplified acquisition threshold.
In this light, the statement in the draft report that the Commission
does not provide information on specific tasks to be performed on a
performance-based statement of work is subjective and erroneous. A
statement of work is attached to each of the contracts examined by GAO.
The Commission 's statements of work describe what the required output
is and establish standards of performance "to the extent practicable"
as required under contracting regulations. For example, the statement
of work for the regional office report preparation contract describes
the reports to be produced in detail and the timeframe for producing
them. These statements of work are entirely adequate for a small agency
operating under simplified acquisition procedures, and the draft report
provides no explanation as to why it makes the blanket statement that
the Commission does not issue performance-based statements of work.
Performance monitoring of contracts is occurrin:
The criticism that the Commission has not established a system to
monitor contractor performance, especially that of the media services
contractor, is also erroneous. Five of the 11 contracts [NOTE 8]
examined by GAO pertain to legal or advisory services in which the
vendor works in close relationship with the contracting officer's
technical representative (COTR). Thus, there is constant monitoring of
the contractor's performance. Four of the remaining five contracts were
for purchases under the micro-purchase threshold, where work was not
complicated and monitoring consisted mainly of evaluating the receipt
of the final product or service, such as delivery of subpoenas, or
completion of routine security investigations. The last two remaining
contracts were for production of specifically designed products-
graphical designs and reports, in which the vendor was monitored
periodically to ensure an acceptable final product. In any
event, if the final products were not to specification under the
contracts, the Commission was not obligated to purchase them.
With respect to the media services contract, as GAO was informed on
more than one occasion, the vendor must submit invoices of its expenses
every month to me for review and approval. The vendor also submits
supplemental information on activity performed, such as work reports-
almost half a foot thick-that I review. The Commission provided all of
this documentation to GAO as well. I work directly with the vendor and
converse weekly, if not daily, with other Commission employees who work
with the vendor, and am apprised of work the vendor does for the
Commission. I am able to make an informed analysis as to whether fees
and expenses submitted by the vendor are reasonable. When I have
questions or concerns, I do not hesitate to talk directly with the
vendor principal. Furthermore, the contract can be terminated at any
time by me.
Miscellaneous factors driving contract and internal control issues:
With respect to the statement in the draft report that the Commission
does not have personnel sufficiently qualified to conduct contract
actions, we disagree with any characterization that Commission
personnel are not qualified to conduct contracting. However, the
Commission has experienced attrition of key contracting personnel. In
small agencies such as the Commission, attrition of a single individual
can often lead to a loss of institutional knowledge. Nonetheless,
despite constraints posed by a decade long flat-lining of the agency's
budget and decline in real spending power, the Commission is attempting
to acquire additional contract and procurement expertise. [NOTE 9]
In approaching the divergent views represented by the draft report and
this response, two factors should be kept in mind. First, the head of
the Commission's Administrative Clearinghouse Services Division, who
was also the Commission's primary contract expert, retired from the
Commission shortly before GAO initiated its investigation. The
Commission was, thus, left without her institutional knowledge of the
Commission's historical contracting activities, including the 2002
contracts. Neither did the Commission have the benefit of her services
in assessing and addressing contractual issues raised by GAO.
Second, compounding this problem was the fact that while GAO
investigators assigned to conduct the contract practices investigation
conducted themselves professionally, they admitted that they did not
have backgrounds in contract regulations or contract law, and were
unable to answer certain contract regulation questions posed to them
during interviews seeking clarification of GAO inquiries. For example,
according to the investigators, a GAO procurement expert helped draft
the prepared questions that were asked during the interviews on
contracting practices. However, as the investigators were not
procurement experts themselves, it was difficult to fully engage them
in an interactive colloquy that may have eliminated any resulting
confusion or misunderstanding.
CONCLUSION:
It is clear from the draft report that the Commission has made great
strides in improving its management structure and operational oversight
since the GAO's 1988 report, as well as since GAO's more recent 1997
examination of the Commission. The Commission is committed to ensuring
that its operations are well maintained and will consider implementing
whatever recommendations and suggestions appear in GAO's final report.
In fact, we have already accepted and begun to institute some of the
recommendations mentioned in the draft report, such as preparing and
forwarding quarterly reports on project and office costs to the
Commissioners.
As noted, however, although many of the recommendations in the draft
report are worth considering, they are not premised on any findings of
fraud, abuse, or managerial impropriety. Rather some are merely
suggestions for modifying Commissioner roles and their relation to
staff, which are decisions for the Commissioners as a body to make,
while others are suggestions to further refine and improve proper
processes already in place. And though we welcome these suggestions,
unfortunately, many of them would require the Commission to spend
additional monies not available in its current $9 million budget.
Information we have provided GAO documents the steady decrease in
Commission funding over the past years that has greatly constrained the
agency's ability to incur any additional, new expenses. Funding levels
from 1995 to 2003 represent a loss of $1.3 million per year after
adjusting for inflation, using a 1995 baseline. The draft report itself
recognizes that although the Commission's non-inflation adjusted budget
has remained essentially the same for the last 10 years, its purchasing
power has been severely eroded, especially in light of unavoidable,
substantial new costs. The draft report also acknowledges that the
Commission's financial status has left it unable to reduce its high
staff vacancy rate, which now stands at 20 percent. In fact, in 1997,
GAO reported the Commission had 91 staff members, while the current
draft report reflects a staffing level of approximately 70. It would be
an extreme, if not impossible, challenge to institute some of GAO's
recommendations and continue to produce the current quality and volume
of products, given the agency's dire budgetary and high staff vacancy
rate situation. Nevertheless, we continue to look for ways to improve
every aspect of our operations and will consider GAO's input
accordingly.
This concludes our response.
Sincerely,
Signed by:
LES JIN:
Staff Director:
Enclosures:
NOTES:
[1] Also important to note, GAO stated early on during this review
that another area of inquiry was whether the Commission's Human
Resources Division appropriately handled personnel matters, including
the matter regarding a Commissioner's proposed special assistant. In
furthering this examination, GAO asked our director of Human Resources
several questions on this subject before acknowledging that our
handling of the matter was consistent with proper procedures. GAO
officials subsequently informed us that they dropped the examination of
the Commission's personnel policies as an area of inquiry for this
report.
[2] The 12tH contract that GAO refers to in its draft report may be a
fiscal year 2003 contract that was also provided to GAO per its
request.
[3] As explained previously to GAO, .due to exigent circumstances, the
contract was amended pursuant to urgent-circumstance and contract-
amendment procedures as contemplated under Section 13.106-1 (b) & (c)
and other parts of the FAR.
[4] The possible 12th fiscal year 2003 contract also exceeded $2,500,
but not $5,000 (so four of the remaining six contracts).
[5] GSA regulations at the time of the contract awards stated only that
a request "should be provided to three (3) contractors . . . "
(emphasis added). Reasonable people may differ as to the interpretation
of this language, and it was the Commission's understanding that the
procedures permitted an agency to identify at least one vendor and
issue the request to that vendor. This interpretation is not only
consistent with the general principle that the federal supply schedule
exists to simplify contracting procedures by permitting selection of
vendors off of the schedule, but is underscored by the fact that the
language was amended in April 2003 to state that the request "shall be
provided to three (3) contractors," clarifying that soliciting from
three vendors was no longer optional but mandatory.
[6] In fact, the vendor is now under contract with the Commission
through SBA's 8(a) program.
[7] The relationship with the media services vendor has not evolved
into an annual award with a maximum value of $156,000 as stated in the
draft report. The vendor's fees under the contract never approached
$156,000, as that was simply the "not-to-exceed" limit imposed on the
vendor. In fact, in fiscal year 2003, total vendor fees were less than
$90,000.
[8] Six of the 12 contracts, if including the contract from fiscal
year 2003.
[9] For example, the Commission resumed submitting current and prior
year data to the FPDC beginning in September.
GAO Comments:
1. Our draft report clearly indicates that we found deficiencies in the
project management practices at the Commission. We focused largely on
the role of the Commissioners because they comprise the Commission
which, under the applicable statute, has ultimate responsibility in
providing reports to Congress and the President, and carrying out other
statutory responsibilities.
2. We do not concur with the staff director's comment that the
Commission has rejected the desirability of Commissioners shaping the
findings and recommendations of Commission projects. Commission staff
play an important role in running projects and helping produce reports,
but their involvement does not diminish the important role that
commissioners can and should play in shaping reports on civil rights
issues.
3. We disagree that our draft failed to acknowledge the Commissioners'
role in helping scope projects. The draft indicates that Commissioners
have some involvement, albeit limited, in the planning process. Our
basic point remains: procedures do not provide for systematic
commissioner input throughout projects and in practice, commissioners
do not always have the opportunity to review many of the reports and
other products drafted by the staff before they are released to the
public.
4. We believe that the draft report accurately portrays the amount of
information provided to commissioners and project managers about
ongoing projects. We based our assessment on the (limited) information
that has been provided to commissioners and project managers in the
recent past. Project managers told us that, during fiscal years 2002
and 2003 (as of August), they were not regularly receiving project cost
data and staff hour information. Additionally, the draft recognized
that arrangements have recently been made to provide additional
information to commissioners. As we noted in a draft recommendation,
the efficacy of this action will need to be monitored. For example, the
staff director's first project cost report on September 30, 2003, in
response to the commissioners' April 2003 vote for quarterly cost
information, was incomplete because it did not contain cost information
for at least two projects that had been regularly reported in monthly
staff director reports during fiscal year 2003.
5. In our discussions with Commission officials subsequent to the
December 18, 2002, letter, we discussed in further detail the scope of
our review. We indicated that our review would primarily focus on
current management operations and not entail a specific point-by-point
assessment of the Commission's implementation of our past
recommendations. Nevertheless, during our review, we learned that the
Commission had made a number of improvements since our 1997 review. Our
draft report discusses these improvements. However, our review was not
intended to evaluate either the improvement in timeliness or the
quality of Commission products since our 1997 review. Notably,
Commissioners Kirsanow, Redenbaugh, and Thernstrom expressed concern in
their written response to our report that although we did not include
an assessment of the quality of Commission products, they found that
"reports lack the substantive and methodological rigor worthy of the
Commission's history and seal." The staff director may wish to pursue
the commissioners' comments in further detail.
6. As noted above, our report includes this recent development.
7. The staff director believes that our sentence in the draft stating
that the report contains recommendations for improving Commission
operations should be deleted or at least modified to reflect that
recommendations are directed at commissioners and not staff offices. We
do not believe that a change is warranted. The implementation of our
recommendations will clearly involve the commissioners, the staff
director, and officials throughout the agency.
8. The Commission's responsibilities are described in the applicable
statute. See 42 U.S.C. 1975a. We have qualified our description of the
responsibilities we list in our report.
9. Our draft report noted that improvements in certain project
management procedures have been made.
10. We believe that the staff director's comment that project milestone
dates are routinely provided to commissioners in monthly reports from
the staff director is an overstatement. Our draft report noted that,
during fiscal year 2002, the staff director's monthly reports to the
commissioners in preparation for their monthly meetings did not contain
a comprehensive list of project milestone dates for all ongoing
projects. Furthermore, fiscal year 2003 staff director reports to the
commissioners generally did not list all ongoing projects and did not
include estimated product issuance dates or project completion dates
for most projects. This information was maintained and routinely
updated when warranted by OCRE and OGC project managers for project
planning, management and monitoring purposes but was not reported in
the staff director's monthly reports to the commissioners.
11. As we note in comment 5, our review was not intended to evaluate
the quality of Commission products.
12. We shared a draft of tables 1 and 2 with the staff director and
other senior staff before we sent the draft report to the Commission.
The officials indicated that the tables were generally accurate.
Nevertheless, we made technical corrections, as appropriate, in areas
clarified by the Commission.
13. The purpose of the table in which the footnote in question appears
is to provide details about the projects produced by those offices that
generate headquarters products. The footnote intends to inform the
reader about an OGC internal product not contained in the body of the
table. The footnote is not intended to convey collateral duties.
Therefore, we did not add the information suggested by the staff
director. We note, however, the draft report contained a background
paragraph which lists the activities carried out by the Commission to
accomplish its mission, including the investigation of charges of
citizens being deprived of voting rights because of color, race,
religion, sex, age, disability, or national origin.
14. The products that the staff director refers to were accurately
described in our draft report as expected to be issued after fiscal
year 2002, as he acknowledges in his description of expectations
regarding each product.
15. We continue to believe that our findings on the extent of financial
oversight at the Commission are factually correct. Moreover, the
recommendations we made in the draft report were based on the
deficiencies we found in the Commission's management practices.
16. We do not agree that the draft report implied that a flow of
financial information from the staff director to the commissioners is
inappropriate. In fact, the concern the draft highlights is that
information is centralized around the staff director, creating a
situation that precludes appropriate checks and balances.
17. We believe that the Commission's internal communication policy was
an appropriate aspect of Commission operations for us to review. As
noted in our draft report, some commissioners, as well as senior
Commission managers, told us they believe that the current policy
stifles communication and productivity within the agency and creates an
environment of uneasiness. Moreover, the Commission's policy limiting
direct commissioner and staff interaction is not consistent with sound
management principles of highly effective organizations. Finally, we do
not believe the longevity of a policy justifies its existence when the
need for change becomes apparent.
18. While it is true that the Commission has several large dollar
agreements with other agencies, these agreements are not contracts
awarded pursuant to the FAR, and our review did not extend to them. Our
review was limited to an examination of how well the Commission used
its contracting authority for purchases above the micro-purchase
threshold. Our review focused on the extent to which the Commission
complied with regulatory requirements applicable to these procurements.
19. When we requested a list of all contracts for which the Commission
budgeted or paid funds against in fiscal year 2002, the Commission
provided us with a list of 11 contracts and orders awarded by the
Commission. The staff director correctly points out that we requested
and received information on a 12TH contract that was entered into in
fiscal year 2003. This contract was specifically brought to our
attention by our requester, but fell outside the timeframe we included
in our scope. The draft has been corrected to show 11 contracts
reported by the Commission as ongoing in fiscal year 2002. The change
in the number of contracts we are reporting on did not affect in any
manner our findings or conclusions.
20. Our draft report has been revised to report 11 as the number of
contracts that the Commission listed to us that it entered into in
fiscal year 2002. The Commission noted in a letter accompanying the
list, however, that its list of contracts did not include the
Commission's day-to-day administrative contracts, such as those for
court reporters, temporary support services, and meeting room rentals.
In discussions with the staff director and the acting chief,
Administrative Services and Clearinghouse Division, we were told, as
the staff director restates here, that these administrative contracts
were modest and done through small scale purchase orders below the
micro-purchase threshold. We noted in our draft report that we did not
include these contracts in our review.
21. We disagree with the staff director's conclusion, and the logic
used to reach that conclusion, that the Commission's contracting
practices are currently sound. We recognize that the Commission has
undertaken many other contracting actions. We did not include these in
our analysis because of the reasons stated in comments 18 and 20. Our
review of the 11 contracts provided to us reveals that the Commission
did not follow proper procedures for the majority of these contracts,
that is, all 7 above the micro-purchase threshold.
22. We refer the staff director to the list of 11 contracts provided to
us earlier in our review, 7 of which were of amounts exceeding the
micro-purchase threshold. The Commission, in addition to lacking
documentation on whether some contracts were competed, could not
provide documentation to support that publicity requirements were met
for other purchases, nor in the absence of such documentation, written
justifications from contract files that would explain why those
requirements were not met.
23. The staff director acknowledges that the Commission could improve
its recordkeeping and documentation procedures in terms of contract
maintenance. He indicates that we erroneously state that the Commission
did not compete its media services contract. In fact, our report states
that the Commission could not document that it competed the initial
media services contract. Without such documentation, we cannot
ascertain whether or not this or certain other contracts at the
Commission were, in fact, competed. We believe documentation
deficiencies constitute a material breach of proper contracting
activities.
24. The staff director's comments support our finding that
documentation deficiencies were found across the contracts we reviewed.
To the extent that an unfamiliarity with specific requirements
contributed to the deficiencies, our draft recommendation for greater
controls, including the need for qualified personnel to oversee
contracting activities, becomes underscored.
25. We continue to believe that the Commission did not follow proper
procedures in awarding any of its contracts over the micro-purchase
threshold, and that this condition limited the Commission's ability to
obtain the benefits of competition. Concerning the 2 contracts
specifically mentioned in the staff director's comments, we found that
the Commission did in fact send out requests for quotations; however,
it could not document that it had met other regulatory requirements,
such as the requirements for publicizing proposed contract actions that
serve to ensure that the vendor community is made aware of an agency's
need for services. By not doing so, the Commission limited the
potential pool of bidders because other vendors were likely unaware of
the contract and therefore did not have the opportunity to submit bids.
26. We continue to believe that the manner in which the Commission
obtained media services from the Federal Supply Schedule was not
consistent with GSA's established ordering procedures. While it is true
that the GSA has clarified its regulation language to make clear its
intent that soliciting from three vendors is mandatory, the staff
director in his comments ignores the requirements in those earlier
regulations to prepare an RFQ, transmit the request to contractors, and
evaluate the responses before selecting the contractor to receive the
order. We maintain that even the earlier version of GSA's regulation
was sufficiently clear in its requirement to solicit quotes from more
than one vendor.
27. For the reasons cited in comments 28 and 30, we do not agree that
we imposed subjective and arbitrary criteria when assessing the
soundness of the Commission's contracting activities.
28. While the Commission's concern for small, traditionally
disadvantaged and women-owned businesses is laudable, it does not
provide a license for circumventing established contracting regulations
and procedures to achieve these ends. We are aware of the Small
Business Administration's 8(a) program. Having elected not to pursue
the 8(a) program, however, it was incumbent upon the Commission to
adhere to procedures governing its choice of procurement vehicles. The
regulations do not state nor imply that agencies promoting small
disadvantaged or women-owned businesses in government procurement may
dispense with the other requirements, such as the requirement to
solicit multiple bids. Moreover, we note that OMB Circular A-76 does
not encourage contracting out but merely establishes procedures for
public-private competition.
29. We disagree. The Commission's relationship with its media services
vendor has evolved into a de facto annual award. In addition, for
fiscal year 2003, the contract had a maximum value of $156,000. We did
not request records from the Commission in attempt to tally a fiscal
year 2003 total of funds actually spent. We did, however, tally a
fiscal year 2002 total of funds spent on the media services contract
and found that $131,225 was spent on a "not-to-exceed" limit of
$140,000. We have added a footnote in the report section to clarify
this point.
30. We disagree with the staff director's belief that our findings are
subjective and erroneous. We continue to believe that it is important
to provide written performance-based requirements documents and do not
believe that simplified acquisition procedures preclude this need.
31. As our draft report stated, written performance-based requirements
documents can help ensure contractors' work against measurable
standards.
32. For the 7 contracts we reviewed with amounts above the micro-
purchase threshold, the Commission did not provide contractors in
writing with specific task orders, instead providing oral information
on tasks to be performed. For example, for its largest contract (media
services), a broad statement of work with little detail was written to
accompany the order. The staff director told us that he meets regularly
with the contractor to discuss specific tasks under the order. As we
state in comment 31, without written performance-based requirements
documents, contractors' work products cannot be successfully evaluated
in a transparent manner.
33. The Commission does not maintain written information on specific
work tasks communicated to the vendor, expected timeframes for specific
tasks to be performed, or the definition or description of how tasks
were to be performed. Rather, the work reports that the staff director
refers to consisted of several press releases, meant to illustrate
activities performed by its media services vendor and copies of vendor
invoices that showed tasks such as, media outreach/story placement,
faxing, planning and consultation, etc., for which the Commission was
billed. We continue to believe that the Commission cannot effectively
assess contractor performance based on the documentation we were
provided.
34. The staff director recognizes that the Commission has experienced
significant turnover with regard to its contracting personnel. Yet he
disagrees with our characterization that the Commission's current
personnel are not sufficiently qualified in certain areas of
contracting. The problems identified in this report should alert the
Commission to the necessity of improving its contracting support or to
look for outside assistance in this area.
35. To conduct our review, we relied upon the extensive legal and
technical assistance available within our agency. When issues arose
during our interviews that required either GAO or Commission officials
to conduct additional analysis, then a follow-on discussion usually
transpired. We stand behind the findings reported in the draft report.
[End of section]
Appendix V: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Brett Fallavollita, Assistant Director (202) 512-8507 Monika Gomez,
Analyst-in-Charge (202) 512-9062:
Acknowledgments:
Dennis Gehley made significant contributions to this report, in all
aspects of the work throughout the review. In addition, Caterina
Pisciotta assisted in gathering and analyzing information and in
writing a section of the report; Lori Rectanus was instrumental in
developing our overall design and methodology; Corinna Nicolaou
assisted in report and message development; Julian Klazkin and Robert
Ackley provided legal support; and Ralph Dawn and H. Kent Bowden
provided specialized assistance in the areas of contract and financial
management.
FOOTNOTES
[1] See U.S. General Accounting Office, U.S. Commission on Civil
Rights: Agency Lacks Basic Management Controls, GAO/HEHS-97-125,
(Washington, D.C.: July 8, 1997) and U.S. Commission on Civil Rights:
Update on Its Response to GAO Recommendations, GAO/HEHS-98-86R,
(Washington, D.C.: Feb. 3, 1998).
[2] We did not review the Commission's day-to-day administrative
contracts, such as those for court reporters, temporary support
services, and meeting room rentals.
[3] The Commission defines a project as "…a study of civil rights
issues that culminates in a report, transcript, summary of proceedings,
film, monograph, or other product for public release…."
[4] These reports are termed "statutory" reports. Statutory reports are
produced in accordance with 42 U.S.C. 1975a(c).
[5] Several agencies have enforcement authority for civil rights
issues. For example, the Equal Employment Opportunity Commission is
charged with enforcing specific federal employment antidiscrimination
statutes, such as Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act of 1990, and the Age Discrimination in
Employment Act of 1967. Also, the Assistant Attorney General for Civil
Rights in the Department of Justice is the enforcement authority for
civil rights issues for the nation.
[6] See U.S. General Accounting Office, U.S. Commission on Civil
Rights: Agency Lacks Basic Management Controls, GAO/HEHS-97-125
(Washington, D.C.: July 8, 1997).
[7] Federal agencies are required under the Federal Managers' Financial
Integrity Act of 1982 to report on internal controls annually to the
President and the Congress.
[8] "Contracting officer" means a person with the authority to enter
into, administer, and/or terminate contracts and make related
determinations and findings.
[9] FAR part 13.
[10] Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355,
108 Stat. 3243.
[11] Clinger-Cohen Act of 1996, Pub. L. No. 104-106, Divs. D, E, 110
Stat. 642.
[12] FAR subpart 13.500(d).
[13] "Sole-source acquisition" means a contract for the purchase of
supplies or services that is entered into or proposed to be entered
into by an agency after soliciting and negotiating with only one
source.
[14] If this requirement is met, and the program has been open to all
responsible sources, the competition requirements of the Competition in
Contracting Act are satisfied. See 10 U.S.C. § 2302(2)(C) and 41 U.S.C.
§ 259(b)(3).
[15] We used a combination of OMB, private sector, and our guidance as
criteria to identify key elements of good project management. These
criteria included U.S. General Accounting Office, Standards for
Internal Control in the Federal Government, GAO/AIMD-00-21.3.1
(Washington, D.C.: Nov. 1999); Preparation and Submission of Budget
Estimates (2002) (OMB Circular No. A-11, Part 2); Project Management
Scalable Methodology Guide (" 1997, James R. Chapman); A Guide to the
Project Management Body of Knowledge (PMBOK‚ Guide-2000 Edition (The
Project Management Institute, September 2003); and Project Management-
Conventional Project Management (Northern Institute of Technology,
Hamburg, March 2002). See appendix I, for additional details about our
criteria.
[16] At the time of our current review, the general counsel position
was vacant and the deputy general counsel was overseeing and managing
OGC projects and products and reporting to the staff director.
[17] Commissioners and Commission staff use the term "emerging issues"
to describe projects that are generally not identified during the
Commission's annual project planning cycle but which the commissioners
decide are high-priority projects as they emerge throughout the year.
Emerging issues projects generally take less calendar time to complete
than do larger, more complex projects included in the annual planning
meeting, during which commissioners decide which projects to undertake.
[18] In this review, we did not analyze the timeliness of Commission
products for comparison with the results of our 1997 review. As agreed
with our requester, our current review focused on the most recent
fiscal year. Also, we examined during the current review a more
expansive number and variety of products than what we reported on in
1997, which made comparisons between this review and our 1997 report
methodologically inappropriate.
[19] Of the 43 total products that resulted from these projects as of
July 2003, 32 were issued during fiscal year 2002 and were included in
the scope of our review. We excluded from our scope 3 products issued
during fiscal year 2001 and 8 products issued or expected to be issued
during fiscal years 2003 or 2004.
[20] Our 1997 review also found that commissioners at that time did not
receive information on the costs of projects or the personnel working
on projects. After a vote to approve a project, commissioners were not
aware of (1) those projects the staff director decides to start; (2)
when projects are actually started; (3) cost adjustments for projects;
(4) time frame changes; and (5) personnel changes, all of which can
affect the timeliness and quality of projects. See U.S. General
Accounting Office, U.S. Commission on Civil Rights: Agency Lacks Basic
Management Controls, GAO/HEHS-97-125 (Washington, D.C.: July 8, 1997),
pp. 17-19.
[21] Administrative Manual, Administrative Instruction 1-6, National
Office Program Development and Implementation, January 24, 2003.
[22] Clearinghouse reports are general purpose, informational reports
that do not include formal findings, conclusions and recommendations.
[23] Two of the 29 products were internal memoranda from senior
Commission staff to the staff director and were not intended for
distribution to the public. Consequently, those memoranda do not meet
the Commission's definition of a product intended for public release
and would not routinely be expected to be subject to commissioner
review.
[24] The full list of 13 product types not covered by the written
guidance include background papers; briefings; briefing papers;
briefing summaries; correspondence; executive summaries; hearing,
consultation, and conference transcripts (The Commission defines these
as "accurate transcripts of testimony at hearings" which the Commission
periodically holds at headquarters and other locations throughout the
United States); internal Commission staff memorandums; miscellaneous
publications; project summaries; staff analyses; staff reports; and
State Advisory Committee reports.
[25] According to the FAR, $2,500 is considered the "micro-purchase
threshold" with certain few exceptions. Micro-purchases may be awarded
without soliciting competitive quotations if the contracting officer or
individual appointed in accordance with FAR 1.603-3(b) considers the
price to be reasonable.
[26] In July 2000, GSA revised the ordering procedures for services.
These "special ordering" procedures now apply to an order for services
that requires a statement of work.
[27] The FAR provides that unless specifically prohibited by another
provision of law, authority and responsibility to contract for
authorized supplies and services are vested in the agency head. The
agency head may establish contracting activities and delegate broad
authority to manage the agency's contracting functions to heads of such
contracting activities. At the Commission, the staff director, solely
by virtue of his position as the administrative head of the agency, is
a designated contracting official who may also award contracts and act
as a contracting officer.
[28] In an attempt to downplay the increasing dollar value of the
Commission's media services contract, the staff director stated in his
comments on a draft of this report that the fiscal year 2003 total
vendor fees related to its media services contract were less than
$90,000. We were not provided documentation to support of this dollar
figure. For fiscal year 2002, however, according to documentation from
the Commission, total vendor fees related to its media services
contract were approximately $131,225 under a contract maximum of
$140,000.
[29] No officials are currently employed at the Commission who
originally awarded the initial contract for media services. Current
Commission officials could not provide us with documentation to ensure
that procedures had been properly followed in awarding that contract.
Subsequent contracts for continued media services were awarded to the
incumbent contractor.
[30] Internal control activities are the policies, procedures,
techniques, and mechanisms that enforce management's directives, such
as the process of adhering to requirements for budget development and
execution. They help ensure that actions are taken to address risks and
are considered to be essential elements of good organizational
management. See U.S. General Accounting Office, Standards for Internal
Control in the Federal Government, GAO/AIMD-00-21.3.1 (Washington,
D.C.: Nov. 1999).
[31] FAR part 4.601.
[32] Executive departments and agencies are required to collect and
report procurement data quarterly to the FPDC. The FPDC provides data
for Congress, the executive branch, the private sector, and the public.
The data are used to measure and assess the impact of federal
procurement on the nation's economy, the extent to which small business
firms and small disadvantaged business firms are sharing in federal
procurement, the impact of full and open competition in the acquisition
process, and other procurement policy purposes.
[33] At the end of our review, the Commission provided us several
documents that were purportedly submitted to the FPDC. However, the
records were not consistent with FPDC documents. Specifically, the
Commission sent us several completed summary contract action reports
(standard forms 281, used to report data to the FPDC), showing contract
data for selected quarters of fiscal years 2000-2003. According to the
FPDC's Federal Procurement Reports for fiscal years 2000-2002, the
Commission did not report any data in fiscal years 2000 and 2002 and
only submitted first quarter data for fiscal year 2001. Moreover, the
Commission's standard forms 281 covering the first three quarters of
fiscal year 2003 are all dated August 11, 2003. According to FPDC, new
data from the Commission regarding fiscal years 2002 and 2003
contracting activity were received on September 26, 2003.
[34] FAR part 37.602.
[35] Prior to November 2002, federal law did not require the Commission
on Civil Rights to prepare annual financial statements or have them
independently audited. The Accountability of Tax Dollars Act of 2002
(Pub. L. No. 107-289, 116 Stat. 2049) requires the Commission and other
executive agencies, not previously required to do so by another
statute, to begin submitting annual audited financial statements to
Congress and OMB.
[36] OMB waived the fiscal year 2002 requirement for all covered
agencies that had not prepared audited financial statements in the
past, including the Commission, pursuant to a provision allowing the
OMB Director to grant such a waiver for the first 2 fiscal years after
the law's enactment. Additionally, the law permits the OMB Director to
exempt a covered agency from the requirement in any given fiscal year,
if its budget in the fiscal year does not exceed $25 million and if the
Director determines that an audited financial statement is not
warranted due to an absence of risks associated with the agency's
operations, demonstrated performance, or other relevant factors.
[37] This policy likewise discourages Commission staff from contacting
commissioners or each commissioner's special assistant, instead
directing all inquiries through the staff director.
[38] Other commissioners we spoke with, however, believed the policy
was implemented to allow staff to better manage its work requirements.
[39] This figure includes a one-time fee of approximately $93,000.
Annual costs are nearly $200,000 compared with $54,000 under NFC.
Officials at the Commission told us that the Commission had to convert
its accounting and payment processing system as they could no longer
use NFC, due to a decision by NFC to no longer offer accounting and
payment processing services to non-USDA agencies.
[40] The Commission had no unfilled permanent positions at the end of
fiscal year 1997 and had two vacancies at the end of fiscal 1998. The
Commission had 10 unfilled positions at the end of fiscal year 1999, 9
at the end of fiscal year 2000, and 18 at the end of fiscal years 2001
and 2002. Although the Commission reports 3 vacancies in its Public
Affairs Unit, Commission officials have outsourced the agency's public
affairs function.
GAO's Mission:
The General Accounting Office, the investigative arm of Congress,
exists to support Congress in meeting its constitutional
responsibilities and to help improve the performance and accountability
of the federal government for the American people. GAO examines the use
of public funds; evaluates federal programs and policies; and provides
analyses, recommendations, and other assistance to help Congress make
informed oversight, policy, and funding decisions. GAO's commitment to
good government is reflected in its core values of accountability,
integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through the Internet. GAO's Web site ( www.gao.gov ) contains
abstracts and full-text files of current reports and testimony and an
expanding archive of older products. The Web site features a search
engine to help you locate documents using key words and phrases. You
can print these documents in their entirety, including charts and other
graphics.
Each day, GAO issues a list of newly released reports, testimony, and
correspondence. GAO posts this list, known as "Today's Reports," on its
Web site daily. The list contains links to the full-text document
files. To have GAO e-mail this list to you every afternoon, go to
www.gao.gov and select "Subscribe to e-mail alerts" under the "Order
GAO Products" heading.
Order by Mail or Phone:
The first copy of each printed report is free. Additional copies are $2
each. A check or money order should be made out to the Superintendent
of Documents. GAO also accepts VISA and Mastercard. Orders for 100 or
more copies mailed to a single address are discounted 25 percent.
Orders should be sent to:
U.S. General Accounting Office
441 G Street NW,
Room LM Washington,
D.C. 20548:
To order by Phone:
Voice: (202) 512-6000:
TDD: (202) 512-2537:
Fax: (202) 512-6061:
To Report Fraud, Waste, and Abuse in Federal Programs:
Contact:
Web site: www.gao.gov/fraudnet/fraudnet.htm E-mail: fraudnet@gao.gov
Automated answering system: (800) 424-5454 or (202) 512-7470:
Public Affairs:
Jeff Nelligan, managing director, NelliganJ@gao.gov (202) 512-4800 U.S.
General Accounting Office, 441 G Street NW, Room 7149 Washington, D.C.
20548: