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House lawmaker joins bid to end TSA contracting exemption

Senators are making a similar effort; witnesses at hearing say changes would bring greater transparency, more competition.

A House lawmaker announced Wednesday that he will introduce legislation to end the Transportation Security Administration's exemption from contracting rules that apply to most other federal agencies, joining a similar drive in the Senate.

Rep. Christopher Carney, D-Pa., proposed the legislation shortly after a hearing Wednesday before the House Homeland Security Subcommittee on Management, Investigations and Oversight, of which he is the chairman. He was not dissuaded by the testimony of Homeland Security and TSA officials, who said they support the exemption and have the resources to continue it.

Carney said in a statement that allowing TSA to follow separate rules "creates an unnecessary layer of bureaucracy, decreases competition and shuts out small businesses from too many contracting opportunities."

Several witnesses agreed, testifying that ending the exemption will enable better oversight of and fairer competition for TSA contracts.

TSA manages contracts through the Acquisition Management System, a scheme adopted from the Federal Aviation Administration when TSA was formed in 2001. The rest of the Homeland Security Department operates under the Federal Acquisition Regulation, the set of rules that applies nearly everywhere else in government.

In addition to mechanical differences between the two systems, TSA is exempt from the "full and open competition" required under the standard rules. It also relies on its own process for handling challenges of contract awards, rather than the Government Accountability Office bid protest process other agencies use.

Although the exemptions were implemented to allow TSA to award emergency contracts quickly and efficiently, David Bodenheimer, a lawyer who specializes in government contracts, said that the opposite has occurred.

"TSA procurements have a disheartening history of schedule delays, cost overruns and performance shortfalls," Bodenheimer said. "Following the rules -- including competition and FAR -- will yield faster, cheaper and better acquisition results than continuing with TSA's exemption."

Alan Chvotkin, senior vice president of the Professional Services Council, a group that represents contractors, said bringing TSA under FAR will "expand opportunities for greater small business participation." He said small businesses lack the resources to train staff in separate TSA and DHS regulations.

But government witnesses said TSA needs the extra flexibility possible under the different system. "Under FAR, communication is regulated," said Rick Gunderson, TSA's assistant administrator for acquisition. He said the regulations "drag out the procurement process." With AMS, Gunderson said, TSA can focus on companies that are likely to win the award.

Rep. Bennie Thompson, D-Miss., said in a statement he was "concerned about the cost of having two systems, in terms of training staff, conducting oversight and fostering departmental integration."

But Elaine Duke, chief procurement officer for DHS, said she had no problems recruiting the necessary staff, and that AMS was a superior system because it allowed contracting officers to "make more judgment calls." When asked why she didn't push AMS for the entire department, Duke said the idea "wouldn't be entertained in earnest [by Congress.]"

Carney was not the only lawmaker to remain opposed to the separate system. Thompson said "removing TSA's exemption . . . is a good start."

Sens. John Kerry, D-Mass., and Olympia Snowe, R-Maine, planned to introduce the same measure Wednesday in the Senate. The Senate last week voted unanimously to accept an appropriations bill amendment that would accomplish the same thing. But the appropriations bill has yet to be completed. An identical amendment passed the Senate last year but did not make it into the final legislation.