COGR Opposes NASA’s Proposed Term/Condition for Procurement

Following up on a post we published a couple of months ago, it appears the Council on Governmental Relations (COGR) is not a big fan of the National Aeronautics and Space Administration’s (NASA) proposed rule to include a term and condition requiring recipients of NASA financial assistance to obtain a quotation from small and/or minority businesses, women’s business enterprises or labor surplus area firms when the acquisition of goods or services exceeds the simplified acquisition threshold.

NASA’s proposal stems from President Biden's issuance of Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which outlines a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.

In comments submitted to NASA on the proposed rule (the comment period was extended from March 25 to April 24), COGR, which is an association of about 200 public and private U.S. research universities and affiliated academic medical centers and research institutes, explained that while it supports E.O. 13985, it objected to NASAs proposed new term and condition requiring the procurement stipulation for many reasons. It explained that implementing the requirement would:

• Place NASA as the only federal agency inconsistent with uniform guidance provision at §200.321(b), which lists six affirmative steps, noting that implementing the proposed NASA term and condition would create a seventh step.
• Create new and unnecessary administrative burden for all institutions, as NASA “would create a precedent for other agencies to implement terms and conditions unique to them,” thereby defeating the purpose of the uniform guidance. “Once an agency is allowed a deviation, institutions are put in the awkward position of complying with multiple administrative requirements across multiple agencies,” COGR added.
• Create disproportional administrative burden for historically Black colleges and universities , minority-serving Institutions, and other emerging research institutions, noting that emerging research institutions do not benefit from economies of scale associated with large-scale research operations, nor do they have reserve resources, and therefore are more significantly disadvantaged by any new compliance requirement.
• Compromise institutional policies now used to comply with §200.321, adding that COGR member institutions “take E.O. 13985 seriously and have developed institutional policies designed to achieve maximum engagement with small and/or minority businesses, women's business enterprises, and labor surplus area firms,” and that NASA’s proposed term and condition “would create an additional and unnecessary layer atop our current institutional procurement policies.”
• Create potential inconsistencies with state procurement policies.

Bottom line: COGR is requesting that NASA withdraw its proposed term and condition. We’ll continue to track this issue going forward and will publish any final decision on the proposal. Stay tuned!

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