介绍:
A. GENERAL-SERVICE CONTRACTS AND PROCUREMENTS
At the base of our pyramid lie traditional procurement contracts and similar agreements between agencies and private actors, such as contracts for the maintenance of facilities, the development of infrastructure, the deployment of logistics, and the acquisition of equipment. These contracts enable government to function, and they free up some agencies to focus on rulemaking, adjudication, and other regulatory activities that legislatures have charged them to perform.
Procurement contracts represent a substantial percentage of the federal government’s annual outlay.36 In fiscal year 2007, for instance, federal agencies spent nearly $460 billion on procurements.37 The Department of Defense (“DoD”) is responsible for most of these procurements: it spent over $330 billion on procurements in 2007.38 By comparison, the Department of Health and Human Services spent nearly $14 billion,39 the Department of Education and the Environmental Protection Agency (“EPA”) each spent less than $1.5 billion,40 and the Equal Employment Opportunity Commission spent around $54 million.41 In 2013, the top federal contractors were all well-known corporate names: Lockheed Martin, with over 9% of the procurement *894 budget; Boeing, with 4.6%; and Raytheon, General Dynamics, and Northrup Grumman, each with contracts worth billions.42
Many of these governmental procurements are relatively uncontroversial. For instance, no one would seriously challenge an agency’s authority to strike a deal with an outside vendor for onsite food services.43 But even where the contract’s subject matter is straightforward, the need for accountability and public participation is an entirely different matter from the discretion of agencies to contract with private providers in the first place. There is always a need to ensure that the processes by which contractors are chosen are fair and not susceptible to corruption. The massive outlays at the DoD and other large agencies may trigger suspicion, particularly where the contracts are formed without competitive bidding. Moreover, for any contract, irrespective of subject matter, the cost may be substantial enough to warrant greater public participation (or at least a greater effort on the part of contracting agencies to publicize contract terms).44 Further, troubling questions arise as privatization takes on new forms in new contexts. For instance, the recent privatization of many municipal utility providers may raise concerns over *895 affordable public access to essential services.45 The transition from publicly administered highways to privately operated toll roads may also trigger concern, especially if the funds generated from tolls do not result in improved infrastructure (e.g., fewer potholes and additional lanes of traffic).46
In addition to those contracts with a potentially adverse impact on consumer access and affordability, some procurement contracts may implicate democracy concerns. Jennifer Nou, for example, has addressed the privatization of ballot counting, describing a “hybrid regime featur[ing] thousands of decentralized bureaucracies and a select group of private vendors that produce the equipment and requisite software to count millions of ballots.”47 Though Nou recognized the importance of technological innovation, she criticized a system characterized by a “lack of centralized coordination” and “little sense of shared best practices.”48
General-service contracts can raise concerns, and these concerns warrant consideration. But for the most part, for the purposes of this Article, we leave these contracts to the expertise of agencies charged with carrying out their legislative directives.49 We turn our primary attention instead to those *896 contracts that implicate individual rights and liberties and complex human services decisions.
