ACUS Chairman PAUL VERKUIL
September 14, 2010
To whom it may concern:
1. I hereby respectfully protest the 9/1/2010 ACUS "Request for Expressions of Interest from Potential Consultants" (RFEI) to GAO and ACUS. I request you halt any ACUS research contracts from being awarded on the basis of the RFEI, which is the sequelae of the secret 8/30/2010 ACUS Council meeting, held in apparent violation of FACA and its mandatory open meeting requirements. I only learned of the RFEI late last night, despite a pending Electronic FOIA request, which should have resulted in its disclosure before now. Thus, this bid
protest is timely.
2. To award contracts based upon the deeply flawed RFEI -- apparently
approved at a secret 8/30/2010 ACUS Council meeting, held after ACUS
denied my 8/27/2010 request that ACUS not violate the open meeting requirements of the Federal Advisory Committee Act (FACA)-- would violate Restatement of Contracts, 2nd, sec 178. (Contract Violations of Public Policy). Such illegal contracts in violation of law or public
policy are void ab initio. Thus, ACUS is requested to cease and desist and GAO is requested to uphold this protest.
3. I further object to the 9/1/2010 Request for Expressions of Interest
(RFEI) as:
a. de facto sole source procurement for all ACUS research, without
conflict of interest disclosure by prospective consultants,
b. inadequately advertised for less than a fortnight (9/1 to 9/13),
c . outside the ordinary course of government business (not listed on
fedbizopps.gov),
d. asking for consultants to study issues in cabined, biased, predetermined ways,
e. for what would appear to be already agreed upon scopes of work,
f. for what would appear to be predetermined or agreed upon prices,
g. eliminating the possibility of any meaningful, full and open
competitive bidding (inadequate notice and for only twelve days,
failing to describe agency needs adequately),
h. failing to comply with reasonable expectations of probity for a
controversial, long-moribund advisory group that Congress de-funded
and effectively abolished for some fifteen (15) years due to ACUS'
secrecy, poor studies and lack of accountability (documented in
my 1989 Common Cause Magazine article, "Business As Usual" and later
Congressional report language in both Houses of Congress).
i. apparently violating Federal Acquisition Regulation (FAR) requirements, with ACUS planning on awarding some seven contracts based upon sources sought, not bids, as ACUS' Research and Policy Director confirmed by telephone to me today,
j. potentially violating EEO/Affirmative Action
requirements/expectations, and
k. with the apparent intent of reducing the scope of FACA, our cherished government in the sunshine laws and transparency.
4. The 9/1/2020 RFEI stated that ACUS intends to award contracts by
9/39/2010 (end of fiscal year). Any rush to spend funds, illegally,
before the end of the fiscal year, on questionable studies, is contrary to the genius of a free people.
5. ACUS is requested to cease and desist.
6. ACUS is requested to kindly notify me immediately upon any and all
contract award(s) so I may alert GAO,OMB, OIRA, President Obama,
Congress (and the American people through journalists and the Internet).
7. My ACUS FOIA request No 2 of 8/27/2010 should have yielded the
information about the 9/1/2010 RFEI, but I received no response and had
no notice in time to file a timely proposal in response to the RFEI.
8. This protest is filed less than 21 hours after I first read the RFEI, late on 9/13/2010.
9. I hereby respectfully object and file this bid protest with ACUS and GAO.
10. I respectfully request that:
a. GAO order an open public hearing on what took place at the 8/30/2010
ACUS Council meeting and all other issues of fact raised by the parties
or GAO;
b. GAO order instanter discovery of all paper and electronic documents
on ACUS consultant contracting;
c. GAO issue a protective order to preserve all paper and electronic
documents held by ACUS and all present and prospective ACUS consultants.
Let justice be done.
With kindest regards, I am,
Sincerely,
Ed
Ed Slavin
Clean Up City of St. Augustine, Florida
www.cleanupcityofstaugustine.blogspot.com
Box 3084
St. Augustine, Florida 32085
215-554-1187 (c)
-----Original Message-----
From: easlavin@aol.com
To: BRichardson@acus.gov; pverkuil@acus.gov
Sent: Mon, 30 Aug 2010 20:14:03 -0400
Subject: Re: Secret ACUS Council Meeting Monday, August 30th Violated FACA -- Please Cease and Desist All Future Violations of FACA bY ACUS, Its Council and its Committees and Subcommittees
Dear Bill and Paul:
ACUS has not yet responded about its violation of the Federal Advisory Committee Act's (FACA's) Sunshine requirement earlier today.
In the light of wisdom and experience, I sincerely hope that ACUS will take my concerns about the Federal Advisory Committee Act to heart and open Council meetings in the future, and disclose what took place in all Council meetings since 1972. This will avoid a Constitutional crisis at ACUS' first Plenary Session since it was abolished in 1995. It will prevent the need for ACUS members and fellows, to raise the issue, or for anyone to file a lawsuit to enjoin future violations.
As Justice Stephen Breyer testified about ACUS earlier this year, a key question is, "who regulates the regulators?" See Testimony of Justice Stephen Breyer May 20, 2010 hearing on ACUS before House Judiciary Subcommittee on Commercial and Administrative Law. As Justice Antonin Scalia testified at that same hearing, ACUS should "do good and avoid evil." Id.
As Congressman William Delahunt stated at the same hearing, the purpose of ACUS is to promote accountability. But ACUS can't promote accountability if its Council meetings are secret.
As you can see from the previous citations, the work of the ACUS Council is covered by FACA.
Thus, will you please open the Council meetings, please disclose promptly what took place at today's Council meeting, and kindly "let the sun shine in," as Congress intended in enacting FACA in 1972?
Thank you.
Sincerely,
Ed
Ed Slavin
Clean Up City of St. Augustine, Florida
www.cleanupcityofstaugustine.blogspot.com
Box 3084
St. Augustine, Florida 32085
904-829-3877 (direct)
215-554-1187 (cellular)
-----Original Message-----
From: easlavin@aol.com
To: BRichardson@acus.gov; pverkuil@acus.gov
Sent: Mon, Aug 30, 2010 12:54 pm
Subject: Re: Secret ACUS Council Meeting Monday, August 30th Violated FACA; My FOIA and FACA Request No. 2 to Revived ACUS for Minutes, Notes and Tapes of Illegal Meeting
Dear Bill and Paul:
I am sorry that an abject and incurious worship of "tradition" has led the new ACUS astray and led to a FACA violation this morning. I request that you correct this monstrous error.
ACUS members (and its then-Chair Antonin Scalia) were wrong in 1972 to have Council meetings be secret. Again, as Justice Oliver Wendell Holmes, Jr. said, "it is revolting to have no other reason for a rule of law than that it was laid down during the reign of Henry IV." ACUS' interpretation is wrong.
Please send me the minutes and tapes and all notes of this morning's illegal meeting. Please preserve all evidence of this morning's meeting.
Please note that the meeting is ultra vires and any actions taken or void or voidable under FACA.
FACA defines, in Section 3(2) , the term "advisory committee" to include "councils":
(2) The term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other sub-group thereof (hereafter in this paragraph referred to as "committee"), which is --
(A) established by statute or organization plan, or
(B) established or utilized by the President; or
(C) established or utilized by one or more agencies;
in the interest of obtaining advise and recommendations for the President or one or more agencies or offices of the Federal Government...
Thus, FACA applies to ACUS' Council. Hence, this morning's Council meeting was illegal. Please govern yourselves accordingly.
Sincerely,
Ed Slavin
-----Original Message-----
From: easlavin@aol.com
To: BRichardson@acus.gov; pverkuil@acus.gov
Sent: Fri, Aug 27, 2010 6:42 pm
Subject: Re: ACUS Council Meeting Monday, August 30th Must be Opened to Public Under FACA
Dear Bill and Paul:
As Oliver Wendell Holmes, Jr. said, "it is revolting to have no other reason for a rule of law than that it was laid down during the reign of Henry IV." ACUS' interpretation is wrong.
Sincerely,
Ed Slavin
-----Original Message-----
From: Bill Richardson
To: easlavin@aol.com
Sent: Fri, Aug 27, 2010 5:39 pm
Subject: RE: ACUS Council Meeting Monday, August 30th Must be Opened to Public Under FACA
Mr. Slavin,
Since the enactment of the Federal Advisory Committee Act (FACA) in 1972, ACUS has consistently interpreted FACA to apply to the ACUS Assembly and its committees, but not to the ACUS Council. Thus, in determining that Monday’s meeting of the Council will not be open to the public, ACUS is following its long-established practice. The agency’s recently refiled FACA charter confirms that “All meetings of the [ACUS] Assembly and [its] subcommittees will be open to the public and announced in accordance with FACA.”
From: easlavin@aol.com [mailto:easlavin@aol.com]
Sent: Friday, August 27, 2010 11:55 AM
To: Bill Richardson; Paul R. Verkuil
Subject: ACUS Council Meeting Monday, August 30th Must be Opened to Public Under FACA
Dear Bill and Paul:
In paragraph 13 of your August 26, 2010 letter, the newly-reviving Administrative Conference of the United States (ACUS) asserts its Council is exempt from FACA open meeting requirements. I respectfully disagree. In pertinent part, 5 U.S.C. 595(b) states:
The Council has the power to
(1) determine the time and place of plenary sessions of the Conference and the agenda for the sessions. The Council shall call at least one plenary session each year;
(2) propose bylaws and regulations, including rules of procedure and committee organization, for adoption by the Assembly;
(3) make recommendations to the Conference or its committees on a subject germane to the purpose of the Conference;
(4) receive and consider reports and recommendations of committees of the Conference and send them to members of the Conference with the views and recommendations of the Council;
(5) designate a member of the Council to preside at meetings of the Council in the absence or incapacity of the Chairman and Vice Chairman;
(6) designate such additional officers of the Conference as it considers desirable;
(7) approve or revise the budgetary proposals of the Chairman; and
(8) exercise such other powers as may be delegated to it by the Assembly.
Based on the plain meaning of the statute, I reckon that FACA applies. Thus, Monday morning's proposed secret meeting of the Council of a FACA-chartered committee is a violation of the public's Right to Know. The meeting must be open to the public. All Council meetings must be open to the public in the future.
By copy of this letter, I am reporting ACUS' planned Monday morning FACA violation to Professor Cass Sunstein and his staff at OIRA and I am requesting that OIRA instruct Chairman Verkuil on the importance of Sunshine in our government.
Upon reflection and review of the statute, I am certain that you and Chairman Verkuil agree today that the meeting on August 30, 2010 must be open to the public.
If, however, you still opine that the Administrative Conference of the United States meeting Monday should be run outside of the Sunshine, please:
(a) Cite by close of business today any legal opinions from DOJ, GSA, GAO or otherwise.
(b) State whether President Obama and Professor Cass Sunstein and his staff at OIRA are aware that the meeting on August 30, 2010 will be in secret.
For the record, I request to attend by "conference call." I believe at least one person in the Washington, D.C. area will want to attend, so please make arrangements to welcome visitors to ACUS' first meeting since 1995.
Thank you.
Sincerely,
Ed
Ed Slavin
904-829-3877
No comments:
Post a Comment