DOE Compliance With Brooks Act

GAO inititated a review of recent acquisitions of automatic data processing (ADP) equipment by the predecessor agencies of the Department of Energy (DOE) or their contractors to determine their compliance with the Brooks Act and the General Services Administration (GSA) implementing regulations. The GSA position appears to be that only service contractors are subject to GSA authority under the Brooks Act in their acquisition and use of ADP. GAO is concerned that this view may not be in accord with the GAO understanding of the past GSA interpretation and implementation of the act. Many DOE procurements serve as examples of this discrepancy, and most DOE contractors operate under contracts subject to: (1) the government's control of funds to insure proper expenditures; and (2) the government's right to furnish services, property, or equipment. GAO noted that, under this type of contract, title to all equipment purchased by the contractor passes directly to the government. The contracts provide that procurement through government sources of supply is available to the contractor and is to be utilized by the contractor when it is in the best interest of the government to do so. However, DOE records show examples of ADP equipment purchases by contractors without active GSA participation. Records also show that a DOE contractor was able to take advantage of volume purchase discounts which GSA was unable to do. Finally, DOE records show that contractors acquired ADP equipment without GSA approval to accomplish routine administrative tasks which might have been supplied by the government using present capacity. GAO recognizes that the Brooks Act refers only to federal agencies. However, the intent of the act would be seriously undermined if an agency could avoid its application by merely having a contractor acquire its ADP equipment.