On March 8, 2016, a final rule changed the position of the National Aeronautics and Space Administration’s (“NASA”) suspending and debarring official (“SDO”). The SDO had been NASA’s Assistant Administrator for Procurement. The final rule reassigns the position to NASA’s Deputy General Counsel. Public comments were not accepted because NASA concluded that the change “affects only the internal operating procedures” of the agency.
Not mentioned in this action is Section 861(a) of the National Defense Authorization Act of 2013. That law applies to the U.S. Department of Defense (“DoD”), the U.S. Department of State (“State”), and the U.S. Agency for International Development (“USAID”), not to NASA, but for those agencies it specifically prohibits the not-uncommon practice of having a procurement officer act as an SDO. Last year, in International Relief and Development, Inc. et al. v. United States Agency for International Development et al., No. 15-CV-854 RCL (D.D.C.), a federal court concluded that such an arrangement at USAID likely violated Section 861(a).
Section 861(a) precipitated a necessary discussion on the independence and impartiality of SDOs. It is not hard to imagine how an SDO who also serves as a procurement officer could be predisposed against a contractor. But even if NASA’s change tacitly acknowledges this concern, it hardly resolves it. Conditioned already to advocate for a particular client, agency counsel are sure to have predispositions, as well.