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40 Procurement Law. 1 (2004-2005)

handle is hein.journals/procurlw40 and id is 1 raw text is: JBUC CONTRACT -lr VL- U -VOLUME 40, NUMBER Share-in-Savings Contracting: The Big Lie By ANGELA B. STYLEs In an obscure section of the E-Govemment Act of 2002, titled share-in-savings ini- tiatives, Congress autho- rized shady financing and ac- counting techniques for federal information technol- ogy (IT) purchases.1 This provision effectively re- moved federal IT purchases from public and congression- al scrutiny. More troubling, however, is recent legislation introduced by Congressman Tom Davis-H.R. 4228, the Acquisition System Improvement Act-to expand this fi- nancing mechanism to cover more than $240 billion a year in federal purchases. One can only hope, for the taxpayers' sake, that Congress and the administration stand firm against an expansion of federal accounting and financing practices that mirror the private sector practices that so re- cently shook the core of our economy. To date, President George W Bush has held firm against the implementation of these risky so-called share-in-sav- ings (SIS) schemes. On December 17, 2002, the president sent a rare warning shot to Congress and executive branch agencies. While signing the E-Government Act into law, President Bush instructed agencies to ensure that these Angela B. Styles is a partner in the Washington, D.C., law firm Miller & Chevalier. She served as administrator for federal procurement policy in the Office of Management and Budget from May 2001 until Septem- ber 2003. She holds a B.A. with distinction from the University of Vir- ginia and a J. D. with honors from the University of Texas School of Law. The author worked on Capitol Hill for Congressman Joe Barton and former Texas Governor William P. Clements. The views expressed in this article are solely the views of the author and are consistent with the opinions expressed by her in sworn congressional testimony while serving as administrator for federal procurement policy. The author would like to thank the American Federation of Government Employees for providing funding and support to make this article possible. contracts are operated according to sound fiscal policy and limit authorized waivers for funding of potential termination costs to appropriate circumstances, so as to minimize the fi- nancial risk to the Government and ultimately the taxpay- er. As a further indication of the president's reluctance, 23 months after passage, the administration has yet to issue final regulations implementing these SIS initiatives. Unfortunately, a number of factors make the prospects for fending off the expansion of this financing scheme dim. The budget deficit looks a lot smaller with $240 billion in liability off-budget-great news for an election year. The executive branch will be reluctant to divest the power and financial flexibility that Congress appears to have ceded through these share-in-savings contracts-a power that the Supreme Court regards as the single most important constitutional curb on presidential power-that no money can be paid out of the Treasury unless it has been appropriated by an Act of Congress.2 And, finally, the proliferation of misinformation regarding the success of SIS initiatives makes rational decision making on both sides of Pennsylvania Avenue difficult. This article examines the modem history of share-in- (continued on page 14) News from the Chair 2 Section's List of Committees 3 Section's Five-Year Plan 6 Eichleay and Recovering Extended Home Office Overhead 8 DOD's Radio Frequency IDs 11 Committee News 19

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