[Congressional Record Volume 144, Number 147 (Thursday, October 15, 1998)]
[Extensions of Remarks]
[Page E2177]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E2177]]



  AMENDMENT OF THE SAVINGS PROVISIONS OF THE CLINGER-COHEN ACT OF 1996

                                 ______
                                 

                        HON. ROSCOE G. BARTLETT

                              of maryland

                    in the house of representatives

                       Thursday, October 15, 1998

  Mr. BARTLETT of Maryland. Mr. Speaker, it is not too often that a 
single, simple change in the law can save the Government tens of 
millions of dollars, but this is true of a technical amendment that the 
House has enacted. I became aware of this opportunity as a member of 
the House subcommittee overseeing DoD's commissaries, which are 
supermarkets operated at military facilities around the world.
  In October 1995, the commissaries awarded an important contract for 
category management services to Marketing and Management Information, 
Inc. (MMI), a small company in my State. Under this contract, MMI was 
required to provide the commissaries with almost $100 million in cash 
and free services, in exchange for sales data that the commissaries 
collect automatically. MMI first conceived this arrangement more than a 
decade earlier, and already had paid millions of dollars to the 
commissaries under earlier contracts. The 1995 contract was awarded 
after full and open competition, in which MMI prevailed against three 
competitors literally 50 times larger than MMI. In other words, this 
David beat three different Goliaths.
  At this point, the losers turned to high-priced Washington lawyers, 
who conceived the strategy of arguing that the competition ran afoul of 
the Brooks Act, one of the great achievements of our well-remembered 
former colleague from Texas. Now, this was simply sour grapes on their 
part, because they never raised this argument during the competition, 
when each of them was hoping to receive the contact. In fact, the 
commissaries said months before the award that the Brooks Act didn't 
apply, and none of them made a peep at that point. Nevertheless, they 
all got together right after the award and sued the Government to stop 
the contract.
  Now, the Brooks Act gave the GSA authority over computer purchases by 
the other agencies. The contract awarded to MMI was for the sale of 
commissary scanner data, which has as much in common with computer 
purchases as a hat does to a rat. Nevertheless, the GSA saw an 
opportunity to expand its little empire, and it tried to do so. The GSA 
told the commissaries that they needed written permission (a 
``delegation'') to proceed with the contract.
  Interestingly enough, the same thing had happened five years earlier. 
Then, the commissaries pushed the paperwork through, and everyone was 
happy. This time, however, acting on poor legal advice from William 
Sherman (the Government attorney responsible for losing the protest), 
the commissaries unwisely dug in their heels, and did nothing to clear 
the paperwork. MMI's contract remained at a standstill.
  The great irony is that a few months earlier, the Congress repealed 
the Brooks Act, eliminating this paperwork requirement for all of the 
agencies. Thus the contract was being held up by paperwork that wasn't 
even required any more. This repeal was accomplished in the Clinger-
Cohen Act, authored by our dear former colleague William Cohen, who now 
oversees the military commissaries and the rest of DoD.
  With the commissaries doing nothing to solve this problem, MMI 
appealed the GSA's decision. Rather than helping MMI, the commissaries 
imprudently claimed that they could do without MMI's money and free 
services, and would provide the same services with their own staff at 
Government expense. I asked the commissaries to provide me with a 
single example of any MMI report that they were able to generate 
themselves. They were unable to do so. In other words, the commissaries 
were wasting public money in an unsuccessful effort to duplicate 
services successfully performed by private enterprise for the past 15 
years, at no cost to the Government.
  In the appeal, MMI succeeded in getting the GSA's decision vacated, 
meaning that nothing prevented the commissaries from proceeding with 
the contract. Since the commissaries claimed that they would do without 
the money and free services, the court left it to the commissaries and 
MMI to work things out.
  At this point the commissaries, again acting on poor advice from Mr. 
Sherman, still maintained that they would needlessly deprive themselves 
of MMI's money and free services, and try to make up for these losses 
in other ways. MMI then filed a $45 million claim against the 
commissaries. Thus, through the commissaries stubborn insistence on 
infringing on private enterprise, we reached a point where the 
Government could end up losing $45 million, rather than receiving 
almost $100 million in cash and free services.
  I am happy to report that a simple technical amendment adopted by the 
House solves this problem. The technical amendment makes it clear that 
the Clinger-Cohen repeal of the Brooks Act means that there never was 
any requirement for the commissaries to obtain a ``delegation'' here, 
nor is there any valid basis of any kind for protesting the award to 
MMI. As a result, the amendment orders the commissaries to proceed with 
the MMI contract beginning 15 days after enactment, and to continue 
that contract for its full five-year term from that date, through the 
year 2003. Under the contract, MMI alone will receive the commissary 
sales data during this period, and it will provide the commissaries 
with the valuable cash and free services stipulated in the contract.
  Here in Congress, we rely on the other Branches of Government to 
carry out our intentions. With the repeal of the Brooks Act, there is 
no doubt that we wanted to eliminate GSA oversight of other federal 
agencies, once and for all. In the case of MMI's contract, however, the 
other Branches just weren't listening. The result has been to take the 
commissaries to within an inch of disaster. I am very happy that just a 
few words from us about our intentions, in the form of this technical 
amendment, will have the extraordinary effects of providing the 
Government with almost $100 million in cash and free services, avoiding 
the sheer waste of duplicating these services at the taxpayers' 
expense, and also avoiding the crushing blow of a $45 million judgment 
against the commissaries. I want to thank my respected colleague 
Congresswoman Morella, and others who have supported this effort. On a 
day like today, I am very proud to be a member of the subcommittee 
overseeing the commissaries, and a Member of this august body.

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