The Federal Acquisition Regulations System was established to codify and publish uniform policies and procedures for acquisition by executive agencies (CFR, Title 48). Proposed regulations are published in the Federal Register for public comment. The proposed FAR on procurement of government printing and duplicating (case 2002-011) was published in the Federal Register on Nov. 13 (and is available at http://www.whitehouse.gov/omb/gpo_proposed_rule_revised.pdf).

The Government Printing Office (GPO) has been responsible for printing and distributing government documents since 1860. Title 44, Section 501 of the U.S. Code states that all printing for Congress, the Executive Branch, all independent agencies, and the Judiciary, other than the Supreme Court, shall be done at the Government Printing Office. But, in 1996, the Department of Justice's Legal Counsel issued an opinion stating that executive agencies could ignore the law mandating use of GPO. At what point did Justice Department opinions replace the law?

On Sept. 26, 2002, Congress ordered executive agencies to continue to use the GPO for printing. The next day, the White House said that agencies could ignore the order. Congress passed five additional joint resolutions on continuing appropriations between Oct. 9 and Nov. 19, 2002. These stated that no appropriated funds may be used to "implement or comply with" the OMB memorandum to pay for printing the federal budget by any agency other than the GPO (see http://thomas.loc.gov/home/approp/app03.html).

The Justice Department took the position that the continuing resolutions passed by Congress were unconstitutional because they violated the separation of powers. Where is it written that the Justice Department can decide the constitutionality of a law? We have a court system and a Supreme Court empowered to decide the constitutionality of laws and Congressional actions.

Senator Robert Byrd asked the General Accounting Office (GAO) for an opinion concerning the printing of the Federal Budget. In a letter dated November 13, 2002 the GAO stated, "[T]he effect of section 117 (b) (1) is that Executive branch departments and agencies may not contract with private sector sources for printing except as otherwise specifically provided by law."

The letter also noted that the provisions of the joint congressional resolutions required the president to make a choice. If he wants to print the Budget, he must do so at the GPO. If he elects not to use GPO, he cannot use federal funds to pay for printing elsewhere.

These actions of OMB and the provisions of the proposed FAR are the tip of the iceberg in limiting the distribution of government documents. The FAR, if implemented, will leave the Federal Depository Library Program and GPO weaker than they are today. Patrice McDermott, of the Washington Office of the American Library Association, in an interview about the regulations and access, indicated that the OMB and the proposed FAR take a bad situation and make it worse.

For years agencies have not delivered all their publications to the Superintendent of Documents, resulting in "fugitive documents" that are not easily available to the public. The proposed rule purports to relieve the problem of fugitive documents and increase the distribution of information by mandating agencies to submit copies of documents to the Superintendent of Documents for distribution to the depository libraries.

The FAR states: "Each publication would be transmitted using electronic means unless such means are unavailable. Agencies' obligation to provide Government publications to the Superintendent (of Documents) applies regardless of the source that prints the publication."

The FAR does not specify any standard for the format of electronic copies and appears to leave the format decision to the agency or the printer. Executive agencies would print copies sufficient for their purposes.

The GPO would print copies for distribution to the depository libraries and the sales program. The duplication of effort clearly would more than offset any savings alleged by the OMB. The total cost of printing and distributing documents would increase significantly. In an interview, Andrew Sherman of the GPO observed that FAR specifies that bids are required only for orders in excess of $2,500. Orders of $2,500 or less can be paid with a credit card and are not subject to competitive bidding. Sherman pointed out that 85 percent of GPO's orders are for less than $2,500.

The OMB alleges that the new regulation would help small business. The GPO handles about 150,000 orders per year with 70 percent of the jobs, large and small, going to small business. If small business is shut out of 85 percent of the business, how will they be helped? In addition, small businesses would be required to submit extra paperwork to qualify to bid with hundreds of agencies.

The regulation provides that when an agency contracts with a private printer, the GPO may wish to purchase copies from that printer for distribution. The printer would bill GPO for the copies. This arrangement could be tricky. How will costs be shared between an agency and GPO? Who would pay the set-up costs?

The FAR Council is considering a clause that would require a contractor to ensure that GPO receives a copy, thereby shifting the burden from the agency to the contractor. Who would be responsible and accountable for insuring that the Superintendent of Documents receives copies in an acceptable format for reproduction and distribution? Is the agency responsible? Or is the printer responsible? There are no penalties specified for noncompliance by agencies or printers.

The proposed regulations are based on three basic goals: increased competition, reducing the cost of government printing, and improving the depository library program. But, these admirable goals will not be met by the proposed FAR. The opposite effects are more likely to result: competition will be reduced, government printing and distribution will cost more, the depository library program and information users will suffer, and access to government information funded by the taxpayers will be limited.

Comments on the proposed FAR may be submitted to: General Services Administration, FAR Secretariat, Attention Laurie Duarte, 1800 F Street NW, Washington, DC 20405. The deadline for comments is Dec. 13, 2002. E-mailed comments should be sent to farcase.2002-011@gsa.gov.