National Parks Bills: S 1191

STATEMENT OF KATHERINE H. STEVENSON,

ACTING ASSISTANT DIRECTOR, BUSINESS SERVICES, NATIONAL PARK SERVICE,

U.S. DEPARTMENT OF THE INTERIOR,

BEFORE THE SENATE SUBCOMMITTEE ON NATIONAL PARKS

OF THE COMMITTEE ON ENERGY AND NATURAL RESOURCES,

CONCERNING H.R. 1191, TO AUTHORIZE THE NATIONAL PARK SERVICE

TO PAY FOR SERVICES RENDERED BY SUBCONTRACTORS

UNDER A GENERAL SERVICES ADMINISTRATION INDEFINITE DELIVER/INDEFINITE

QUANTITY CONTRACT ISSUED FOR WORK

TO BE COMPLETED AT THE GRAND CANYON NATIONAL PARK.

NOVEMBER 8, 2007

Mr. Chairman, thank you for the opportunity to present the views of the Department of the Interior on H.R. 1191, a bill that would authorize the National Park Service to pay for services rendered by subcontractors under a General Services Administration Indefinite Deliver Indefinite Quantity Contract issued for work to be completed at the Grand Canyon National Park.

The Department appreciates the subcommittee's efforts to address this situation but opposes H.R. 1191. The Department also testified in opposition to H.R. 3961, a similar bill, in testimony before the House Subcommittee on National Parks on March 30, 2006.

H.R. 1191 would authorize payment, through the appropriation of such funds as are necessary, to subcontractors who completed work under task orders to Pacific General, Incorporated (PGI) for which PGI was paid, but subcontractors were not. The work was completed under National Park Service (NPS) task orders issued against PGI's Indefinite Deliver Indefinite Quantity (IDIQ) contract with the General Services Administration.

PGI's default has created a financial burden on the affected firms. The NPS had a contractual relationship with the prime contractor, PGI. The NPS does not have a contractual relationship with the subcontractors and NPS does not have the legal authority to pay subcontractors who completed work under PGI's IDIQ contract for which PGI failed to render payment.

H.R. 1191 would authorize the Secretary to pay these subcontractors under certain conditions. The bill would authorize payment if: 1) the task orders issued to PGI by NPS have been terminated, 2) the amount owed to the subcontractors is verified, 3) all reasonable legal avenues or recourse have been exhausted by the subcontractors to recoup amounts owed directly from PGI, and 4) the subcontractors provide a written statement that payment of the amount verified represents payment in full by the United States for all work performed at the park under PGI task orders issued by NPS between Fiscal Years 2002 and 2003.

Between Fiscal Years 2002 and 2003, the Grand Canyon National Park (park) issued approximately 40 task orders to PGI under this IDIQ contract. Those task orders totaled an estimated $17 million for various construction projects throughout the park. Invoices sent to the park indicated that PGI certified payments were being sent to subcontractors and suppliers. The NPS paid more than $10 million to PGI, of which approximately $1.4 million, based on our most recent estimates, was owed, but never paid, to subcontractors. PGI has been indicted by the U.S. District Attorney's Office in Arizona on 26 counts of fraud involved with these task orders.

In January 2004, the park began receiving complaints from subcontractors citing lack of payment by PGI. In February 2004, the NPS suspended further payment to PGI and issued a suspension notice ordering PGI to cease activity, followed by termination for default of 17 remaining task orders. PGI has had every reasonable opportunity to resolve the situation, but has since ceased doing business.

Following PGI's default, the NPS withheld payment to PGI and began paying subcontractors directly for work completed on PGI task orders, valued at $906,335. Contract law generally prohibits payments directly to subcontractors because of the lack of a direct, contractual relationship between the parties. However, in this case, NPS consulted with the Government Accountability Office (GAO) and with their approval, began paying subcontractors directly for these claims. NPS has used approximately 92% of the withheld funds to pay 41 claims of an estimated total of 76 claims submitted.

The impact of PGI's default was compounded by lapses in the contracting operations at Grand Canyon National Park. An acquisition management review conducted by the NPS Washington Contracting and Procurement Office, determined that the park had failed to obtain payment and performance bonds from PGI required by the IDIQ contract and the Miller Act (40 U.S.C. § 3131). To prevent future lapses, we have strengthened internal controls both at the park and regional level. For example, the park superintendent is now annually evaluated for management of the park's contracting program. In addition, the NPS Intermountain Region will be conducting periodic acquisition management reviews of the Grand Canyon contracting program.

The Department understands the hardships PGI's default and NPS' actions have placed upon the involved subcontractors. The payment bonds required of the contractor under the Miller Act are designed to protect subcontractors who do not have the recourse of placing a lien on the property at issue, since liens cannot be placed on government property. The courts have held that, while the contractor has an obligation to provide such bonds, the Miller Act places no affirmative obligation on the federal government to ensure the bonds have been obtained. The Department recognizes that H.R. 1191 is intended to be an equitable resolution to a difficult situation. However, it singles out one situation for relief not available to others under the Miller Act and would effectively have NPS pay for the same services twice.

Although we are sympathetic about the position of the subcontractors, the Administration is concerned about the precedent that would be set by requiring the federal government to assume the liability for the contractor's default, particularly in a situation where no contractual relationship exists.

Mr. Chairman, this concludes my prepared remarks. I will be happy to answer any questions you or other members of the subcommittee might have.