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Thursday, September 29, 2005

No-Bid Contracts: a No-Good Idea
Be sure to check out the latest article from two GW law professors on efforts to make no-bid contracts and other erasures of procurement law the rule rather than the exception in natural disasters and other crisis events. From the abstract:
As Hurricane Katrina relief efforts grow into the billions of dollars, the U.S. Congress is considering additional legislation to liberalize procurement, including H.R. 3766, co-sponsored by Representatives Kenny Marchant and Tom Davis. In these comments on the proposed legislation, Professors Christopher Yukins and Joshua Schwartz asked whether the proposed changes, which would eviscerate competition for most procurement related to disaster relief, are truly necessary. Professor Yukins suggests that, though it might in some circumstances be necessary to dismantle the federal regulatory regime to accommodate a wave of new firms in the federal market, there is too little evidence yet to support such radical measures. Professor Schwartz argues that there is no basis, empirically or analytically, for any effort to undo the careful protections afforded by the federal procurement system.
Click here to download the articles.


Posted by Robert Shull, 11:35:51 AM



Wednesday, September 28, 2005

OMB Watch Testifies on Sunset/Reorganization
OMB Watch testified yesterday before a subcommittee of the House Government Reform Committee against House bills that would implement the White House's proposal for mandatory program sunsets and powers to reorganize government at will.

>Read the press release

>Download the testimony

Posted by Robert Shull, 12:40:49 PM



Friday, September 23, 2005

OMB To Expand EPA Guidance Reviews
According to InsideEPA (subscription only), OMB is planning an unprecedented expansion of its review authority that will include reviews of almost all agency guidance documents, further stymieing agency efforts to implement new protections. From the article:

EPA sources say the draft OMB document announcing the new policy, entitled OMB Bulletin on Good Guidance, could delay agency efforts to develop new risk assessments for a major agency risk database, issue implementation procedures for state clean air plans, announce drinking water advisories and undermine the Superfund cleanup program, which relies on guidance documents to provide on-the-ground technical advice to site managers, such as monitoring and assessment procedures.

A number of EPA officials say the review process will dramatically slow the agency’s ability to clarify EPA procedures to its staff, even if the documents do not impose requirements on the regulated community.

This represents “a historic expansion of OMB oversight,” one EPA source says.

OMB's Office of Information and Regulatory Affairs (OIRA) was given authority to review significant final and proposed rules under Executive Order 12866. OIRA currently reviews a limited number of guidance documents, but under the new bulletin, OIRA would expand those reviews to include all guidance except those dealing with personnel policies. The plan would likely impede the promulgation of new guidance documents and further tax the limited resources of both OMB and the federal agencies. According to InsideEPA:

EPA sources say this lack of resources could also slow down or kill documents that OMB opposes, since neither the White House nor EPA and other agencies have the resources to evaluate all guidances or shepherd them through an intensive review and revision process. “There’s not enough money or staff for that,” one Superfund program source says.

During the Bush administration, OIRA has expanded interference into agency actions through a number of mechanisms, including soliciting regulations for repeal or reform from industry representatives.

Posted by Genevieve Smith, 01:40:35 PM



Recent OIRA Meetings



Posted by Genevieve Smith, 01:11:53 PM



Thursday, September 22, 2005

Don't Mess With Texas (Unless You're Homeland Security)
The Department of Homeland Security's decision to waive all law in order to expedite construction of border area fencing near San Diego now has some landowners in Texas worried that their private property rights are endangered. Read more.

Posted by Robert Shull, 07:48:43 PM



Friday, September 16, 2005

Bush Decision to Waive Wage Protections Could Be Illegal

As many surely know by now, the White House decision to suspend its obligations under the Davis-Bacon Act to require a fair minimum wage for contractors working on the reconstruction and recovery efforts in the aftermath of Hurricane Katrina will have a direct and drastically negative impact on many of the very victims of the hurricane. Some have noted the irony of this decision given that the hurricane's devastation was compounded by years of poverty and low-wages throughout the Gulf region. In response, Representative George Miller (D-CA) introduced legislation to overturn the wage cuts instituted by the president last week.

But what many might not know is that Bush's decision to waive the protections could be illegal. The Federation of American Scientists' Secrecy News revealed a Congressional Research Service report issued yesterday concluding that the president may have acted illegally in waiving those wage protections. CRS states that the September 8 presidential declaration was "an anomaly," and it did not follow "the historical pattern of declaring a national emergency to activate the suspension authority."

The report concludes, "The propriety of the President's action in this case may be ultimately determined in the courts."

The Davis-Bacon Act prohibits the federal government from undercutting prevailing wages in areas where the federal government is contracting for work. The administration is required to ensure that its contracts establish minimum wages for workers that comport with the prevailing wage of the area.



Posted by Adam Hughes, 01:45:34 PM



Wednesday, September 14, 2005

OMB and the Price of Gas
Astronomically high gas prices and possible post-Katrina price gouging are all over the news these days. So what does OMB have to do with the price of gas?

Well, OMB has for some time been living in a fantasy land with regard to what we're paying at the pump. OMB puts out an annual report on the costs and benefits of regulations, and for the last several years the office has been using a low-ball estimate for the price per gallon of gas when calculating cost and benefit estimates. This year and last, OMB used an estimate of -- get this -- $1.10 to $1.30.

Of course, OMB could not have predicted Hurricane Katrina or post-hurricane price gouging. OMB still could have done a much better job with gas price estimates: at the time of the report, the government's best guess was for prices above $2.00 per gallon.

Why the lowball number--and the failure to correct this obvious mistake after it was pointed out last year by economist Frank Ackerman and law professor Lisa Heinzerling? Nothing makes sense, unless OMB is intending to minimize the benefits from fuel economy standards.

For more, see OMB Watch's comments on this year's report.

Posted by Robert Shull, 03:55:13 PM



Tuesday, September 13, 2005

Did Politics Warp FEMA Priorities?
Under the provocative headline "Did FEMA 'Buy' Votes for Bush?," IPS asks if political considerations influenced FEMA's priorities -- in particular, the disparity between FEMA's response in Florida (politically valuable) and Louisiana (not). Here's an excerpt:
As Michael Brown resigned his post as head of the Federal Emergency Management Agency (FEMA) Monday following a relentless beating in the press for his mismanagement of Hurricane Katrina relief and rescue efforts, details on FEMA's past missteps began emerging.

Possibly the most egregious of these largely under-reported fiascos was the revelation that FEMA made 31 million dollars in questionable payments to residents of Florida's Miami-Dade County for damage from Hurricane Frances in September 2004, even though the storm caused only minimal damage in that area.

J. Robert Hunter, director of insurance for the Consumer Federation of America, who was a top federal flood-insurance official in the 1970s and 1980s, said that the Frances overpayments "are questionable given the timing of the election and Florida's importance" as a battleground state. Hunter was Texas insurance commissioner in the 1990s under then-Gov. Ann W. Richards, a Democrat.



Posted by Robert Shull, 12:26:29 PM



Thursday, September 08, 2005

Bush Suspends Minimum Pay for Contract Workers
The White House announced that it is suspending its obligations under the Davis-Bacon Act to require a fair minimum wage for contractors working on the reconstruction and recovery efforts in the aftermath of Hurricane Katrina.

The Davis-Bacon Act prohibits the federal government from undercutting prevailing wages in the construction industry in areas where the federal government is contracting for work. The administration is required to ensure that its contracts establish minimum wages for workers that comport with the prevailing wage of the area. The White House invoked the act's exemption for national emergencies.

The irony here is that the devastation of Hurricane Katrina was compounded by poverty and low wages -- factors that kept many from evacuating in time. Now the Bush administration is empowering itself to pay substandard wages for the reconstruction effort.

Posted by Robert Shull, 06:09:58 PM



Americans Demand Focus on Domestic Policy
USA Today is reporting the results of the latest Pew poll, in which a majority expresses its desire for a renewed focus on domestic policy:

More than half of Americans now say it is more important for the president to focus on domestic policy — the first time since Sept. 11, 2001 that domestic matters have been viewed as a higher priority than the war on terrorism in polling by the Pew Research Center.

Two-thirds said the president could have done more to get relief efforts going quickly, according to the survey.

The slow-moving response to the hurricane appears to have shaken American confidence in the government's ability to deal with a major disaster. Four in 10 said the response to the hurricane has made them less confident about the government's ability to handle a major terrorist attack.

Almost six in 10 in the Pew poll, 58%, say they have felt depressed because of what's happened along the Gulf Coast. Pew polling indicates that at no point during the Iraq war has that high a percentage of people said they were depressed because of the war.

The findings should not be all that surprising: majorities consistently report that they believe the government has an important role in protecting public health and safety. Meanwhile, those same majorities have been witnessing, with horror, the results of government's failure to fulfill that role.


Posted by Robert Shull, 05:31:59 PM



Tuesday, September 06, 2005

OIRA MEets over Risk-based Capital Guidelines
OIRA met with financial groups on January 27, 2005 to discuss risked-based capital guidelines in the Office of Thrift Supervision. The Unified Agenda lists two rules regarding risk-based capital guidelines: Risk-based Capital Guidelines; Capital Adequacy Guidelines; Maintenance: Domestic Capital and Risk-based Capital Guidelines; Implementation of New Basel Capital Accord.

Posted by Genevieve Smith, 03:24:16 PM



Friday, September 02, 2005

PART of the Problem in New Orleans
There are plenty of signs that the Bush administration failed to invest in projects that could have prevented the devastation in New Orleans — see this recap from the Center for American Progress for more. For another way in, be sure to look at the White House’s assessment of Army Corps of Engineers programs, using OMB’s Program Assessment Rating Tool (PART).

First, a recap of PART itself: PART is supposed to be a tool for performance measurement that, theoretically, generates data on program effectiveness that can then be fed back into program management reforms and budget decisions. In actuality, PART is a simplistic one-size-fits-all process that provides a technical veneer for very political decisions. In addition to creating fine-sounding rhetorics of results to justify slash-and-burn budget decisions, PART is a vehicle for sending signals to program managers to make policy adjustments that receive the White House seal of approval (whether or not those decisions are actually authorized by the law governing a program). Learn more with this introductory issue brief.

Check out the FY05 and FY06 PART assessments for the Army Corps of Engineers. Relevant programs PARTed:

  • Coastal Storm Damage Reduction Program: praised for using cost-benefit analysis in prioritizing construction projects. As John Woodley, Jr., Principal Deputy Assistant Secretary of the Army for Civil Works testified, the Corps “had numerous projects ongoing and insufficient funding to continue all of our projects at an efficient level” [in other words, too little funding to meet all the pressing needs] and therefore asked for construction funds “to be strictly prioritized by remaining cost to remaining benefit, and that is a measure that takes into account the benefits that are yet to be gained from a project compared to the remaining costs that are needed to be invested to reap those benefits.” [Testimony available on Westlaw at 2005 WL 82731 (F.D.C.H.).] We need more details about these cost-benefit analyses — after all, as one TV commentator has observed, “"If this [level of disaster] were to happen in California, okay, fine. There's a number of incentives to sort of rebuild that area. Imagine trying to do that in rural Mississippi.” Or in any other poor area where the benefits of damage reduction could count for less than damage reduction in a more prized coastal area. The program was rated as “Results Not Demonstrated” — a grade that OMB explains officially as an indeterminate score, meaning that there is insufficient information upon which to assess program results, but that the White House often invokes as meaning failure to produce results. The program was slated for successive budget cuts in the FY04, 05, and 06 budgets.
  • Emergency Management Program: The White House knew that the program was underfunded and relied excessively on supplemental funding, which forced the Corps to redirect funds from other projects until supplemental funds came through. Just the same, the White House asked for a dramatic budget cut for FY06.
  • Flood Damage Reduction Program: rated “Results Not Demonstrated.” One place the program lost points on its PART assessment was the question, “Is the program optimally designed to address the interest, problem or need?” OMB’s response: no, because — based on the OMB bean counter’s opinion, not any real evidence — the Corps “should put more emphasis on non-structural solutions and avoid designing projects to provide 100-year protection where it may not be economically feasible.” Another “failure”: “When formulating proposed investments, the Corps assumes schedules that do not reflect likely funding constraints. On the bright side, the budget examiner noted, “Recently, the Corps has adopted a performance measure where it compares the estimated costs of completed projects with the projected benefits to ensure that the project’s benefit cost ratio is maintained.”


Posted by Robert Shull, 03:10:32 PM



Thursday, September 01, 2005

OIRA Meetings on Brownfields, Oil Spills
EPA and OIRA met over standard practices for "all appropriate inquiries" with the National Association of Home Builders on Aug. 23. OIRA and EPA also met with energy companies and SBA representatives on Aug. 26 and 29 over a Spill, Prevention, Control and Countermeasure (SPCC) proposed rule.

Posted by Genevieve Smith, 12:49:34 PM




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