Reasserting Congress' Power of the Purse

House Budget, Protecting our Democracy: Reasserting Congress' Power of the Purse, April 29, 2021

While it did not look this way at the time, in the case of Ukraine, the process worked. Fund certifiers did what they were meant to do and the money which the President did not want spent was spent. Time will tell whether the perfect phone call was a cover for giving aid and comfort to Mr. Putin or not. I expect so and further believe that the Eastern District of Virginia will one day show its cards. 

The immediacy of the issue has passed with the inauguration of President Biden, whose respect for the Congress is second to none. In relations to these issues, please see my comments from last year’s hearing.

The Committee’s professional staff has done its usual yeoman’s work in laying out the issues for today’s hearing. While it is important to strengthen legal tools to keep the Executive Branch accountable, these will not give Congress what you are asking for, which is information. With respect to your assigned witnesses, unless they have experience not included in their current titles, they will not have the answer you need.

I have served many roles in my career in and out of federal and District of Columbia government as a program control officer and cost analyst, as a contacted grants office technical representative, a contracted contract administrator (contract specialist), a political appointee in the Office of the City Administrator a congressional intern and a real estate specialist, as well as a proposal writer and coordinator in the private sector. Let us just say that I got good mileage out of my MPA degree.

The coin of the realm in the Executive Branch is budget execution, which then dovetails into budget formulation for the next fiscal year’s submission and contracting in the near term, with auditing and closeout being their poor step-children. If there is money left over, it goes into the M Account, which must be used before expiration. The last is sometimes how needed technology is purchased - not as an abuse but as a necessity.

At every phase, the Office of the Solicitor is available, but this is especially the case in contracting and procurement. Any new process, such as Fair Opportunity, or complex questions coming from regional offices are vetted in this way. While the recent administration attempted to play fast and lose with the rules, the permanent government did not. 

Even those matters such as layovers in Scotland by Air Force Mobility Command flights would have been vetted in this way. This likely relied on DoJ’s case filing on emoluments to justify the position that being a vendor is not the same thing as corruption. Such trips were hardly a hardship for Air Crews. Air Force pilots are notorious golfers, so I am sure they did not object too strongly. 

Likewise, when some genius decided that executive personnel may not fly first class, a whole fleet of executive transport arrangements were made, and likely abused, although the first vendor of choice is always federal air assets, from the Air Force (which has been known to fly members of Congress) to the FAA jet. 

The common feature of all of this is senior contracting leadership not wanting to cross their appointed leaders. Good contracting officers can work with appointees to do things appropriately. When this is not done, errors come to the front and people who could not say no are soon retired or removed from leadership. 

Perhaps making all contracting personnel employees of the General Services Administration may help, but in the end the problem is not with the civil service, it is with untrained (and in the prior Administration untrainable) political appointees. These individuals are the weakest link. 

As I have written elsewhere, it is not the Senior Executives who need better training, it is the cadre of Assistant and Deputy Secretaries. In other places, I have written about creating a Senior Political Service, which would include pre-clearing and a demonstrated level of competence and education in both their area of expertise and administrative law and procedure itself. Sadly, this is a matter outside of the Committee’s silo. I will now return to the matter at hand.

The government of the United States main job is spending money. This happens in three ways. The first, which is outside of the scope of these comments, is distributing money to beneficiaries through the Social Security System, Temporary Assistance to Needy Families, Food Stamps and Unemployment Insurance, as well as tax benefits such as the Earned Income and Child tax credits.

The second way is some form of uniformed function, from the military to corrections officers to homeland security to the Fish and Wildlife and Forest Services. These items are fairly straightforward as far as budget execution. You hire people and pay them to service the public.

The third way, which is the focus of this inquiry, is the contract and grant process. I have seen this process from every perspective. Step one is the authorization of programs, all of which is accomplished under the direction of authorizing legislation. Program Office personnel, who after contracts are negotiated are called Contracting (or Grant) Officers Technical Representatives, translate statutory goals into financial plans, working with program control personnel. This work turns into purchasing requests. 

When I was in program control, this was a paper intensive process. Any automation came with budget clerks processing PRs, which were reviewed by a fund certifier, sent to accounting to put into the system and sent to contracts for obligation - all through interoffice mail. In my last year in program control, I served as the technical representative in an effort called STARS, which automated the process. 

My concept, which TRW was to implement, would have been for program office personnel to use the system to allocate their budget by either initiating new contracts or funding existing ones, sending the statement of work along with the request, electronically. Sometimes vendors write a statement of work for the program office, sometimes contracting specialists do so. The goal is the same, to wisely spend the public’s money.

Part two is STRIPES, which is the online contracting module. It was just coming online as I was leaving the Department of Energy. In this system, the Purchase Request is sent to the Contracts Office and assigned to the cognizant specialist, who either funds an existing contract with a contract modification or initiates a new procurement. Both of these are done under a Contracting Office, who holds a warrant to spend the public’s money. In some cases, contracting officers operate without assistance of a contract specialist. STRIPES now does all the work. New procurements are now put out for bid electronically, are received the same way, with proposals coming back electronically. Source selection is made appropriately and contracts are issued. 

Before STRIPES, contracts and modifications were generated using Microsoft Word and upon signature by the Contracting Officer, they were distributed using paper. Part of the process was updating the Federal Procurement Data System - Next Generation. Under STRIPES, this is accomplished by the system. Forms are no longer even signed.

If you are still awake, you will have guessed my point. Data on both budget execution and contracting is now fully electronic. It would not be difficult to create read only access to an information system linking Program Elements to Contracts, including information as to how much of the total has been funded, by fiscal year. 

FPDS-NG does not include fund citation information, but it does exist. Congress should not demand access to every transaction or even request a monthly report. Indeed, Congress could not digest this information and some members would abuse it if they could - either by attempting to interfere with objective source selection decisions or by using such information for personal financial benefit. Political appointees are not the only ones who have abused the system thinking that they would never be caught. 

The proper conduit for this information should be the budget process. When budget requests come in, members and staff can be given access to budget execution summaries on a program element basis. This could be through read-only access and would be paperless. It should only be available to trained personnel, either on Committee staff or congressional agencies. 

If you wish to go down this road, it will take funding to do correctly and ethically. Political hacks whose main purpose is to score partisan points for reelection should have no access. This will require hiring additional staff on a professional basis (with no regard to connection with the member’s home state, district or campaign). It cannot be done on the cheap and anyone who resists such an expense should be denounced for grandstanding by the leadership of both parties.

The main difficulty in doing this, however, is the current inability of Congress to efficiently deal with the budget and appropriations process it has now. There are too many cooks stirring the pot, i.e., too many choke points where action can be stopped, often for reasons that have nothing to do with good government. Obstructing good government seems to have been fashionable in some parts of the Hill. The process must be changed to stop this from happening.

As I have said before, we need automatic tools. These include a new Budget Control Act with realistic budget marks that would come into play if a budget resolution is not passed in a timely manner. This should be a joint resolution authorizing automatic appropriation if actions are not taken by the end of the start of the next fiscal year.

The status quo makes budget execution impossible. It is almost understood that real contracting cannot occur until February or March when Congress finally acts. Money must then be spent by the end of August in most cases - usually on a crash basis. Having STARS and STRIPES simply automates the budgetary dysfunction which comes from Congress. 

The chaos in the current system lends itself to abuse by members of the Executive Branch. If the congressional process works, the budget execution process will work more smoothly. The system to monitor budget execution that I have outlined will only add to the current chaos if it is attempted on the cheap and in concert with a broken budget process.

The second attachment provides more detail on how to fix the budget process. The Committee has seen all of this previously, sometimes in more detail. The problem is not amiability or bipartisanship. Indeed, the recent reforms are not adequate to get the job done. Only an automatic process will force action and consideration. 

Perhaps the best reform would be to pass the Legislative Appropriation last. This  should include any funding to assist the District of Columbia (or better yet, Washington, Douglass Commonwealth) in securing the Capital. Any incentive will do.

Attachment: 2020 Hearing

Attachment: Budget Process