The United States spends more money than any other country on public procurement. Yet, its system for collecting and disseminating data on public procurement is unusable and dysfunctional. The purpose of this Note is to offer ways to centralize and update the current procurement data systems to promote transparency, accountability, and collaboration. This Note builds on existing legislation and technology to align federal procurement with internationally recognized open procurement standards.
The arguments in support of these updates are delineated in three parts. First, this Note introduces the subject of open data in public procurement and explains how open data currently functions in the United States. Second, this Note explores how open procurement practices can impact society positively when effectively implemented. Third, this Note offers an in-depth exploration of the current shortcomings of the open procurement systems as they currently operate in the United States. This analysis is strengthened by a case study exploring Ukraine’s approach to open procurement. Fourth, this Note then offers a detailed solution highlighting the language of an amendment to the DATA Act, outlining the enactments Congress should implement to achieve a truly robust open procurement system in the United States. This discussion is rounded out by policy and procedural considerations which would arise upon implementation of such legislation. Lastly, this Note argues that, despite potential hurdles and hiccups, legislatively modernizing the open procurement systems in the United States is essential to promoting transparency, accountability, and collaboration in federal procurement.
Towards the end of former President Trump’s incumbency, the Trump administration rushed the federal executions of thirteen individuals who had been living out their death penalty sentences on death row. This resumption of capital punishment by the federal government after a nearly two-decade long hiatus featured the use of pentobarbital, a lethal chemical compound which replaces other, less controversial methods of human execution. In both the United States and abroad, major pharmaceutical companies have refused to produce drugs used in human executions, like pentobarbital, leading governments to resort to extraordinary, expensive, and often unethical methods of obtaining the compounds.
No private citizen currently has access to the details of the procurement process engaged in by the Trump administration to obtain the pentobarbital used in the recent federal executions. This shortcoming is largely because the Trump administration and the Bureau of Prisons rushed a no-bid contract, invoking the use of FAR 6.302. This provision states:
When the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals, full and open competition need not be provided for.
The sensitive, and potentially scandalous, details of this confidential procurement, in conjunction with the lack of open competition allowed by the no-bid contracting process, have alienated the public from crucial information regarding where those lethal chemical compounds were made and by whom.
“Emergencies” which provoke an “unusual and compelling urgency” permitting the federal government to engage in no-bid contracting are becoming more frequent, yet less straightforward. With each new no-bid contract, due to the lack of publicity and often secretive nature of the goods or services being procured, the public is unknowingly losing its ability to evaluate the federal government’s use of tax dollars and other publicly funded resources in the procurement process. A countermeasure to this inaccessibility and opacity are “open” databases, run by federal and local governments, which publish information on procurement contracts.
On the federal level, USASpending.gov (henceforth referred to as “USASpending”) is a tangible reflection of efforts to engage with the transparency and accountability obligations required by the Digital Accountability and Transparency Act of 2014 (DATA Act). This website functions as an online repository of thousands of data entries detailing the federal government’s business dealings. While certain confidential information, such as national security interests and personal identifying information, is not publicly available on this website, the remaining raw data can be accessed by anyone who has an Internet connection in the United States.
Access to raw data, however, is not enough. Large corporations, including those who most often secure the highest-value government contracts, have the resources to hire technically proficient personnel to comb through, map, and interpret the raw data made available on USASpending, unlike smaller contractors. This disparity between potential bidders restricts the statutorily required full and open competition in government contracting. The federal government should take an active role in providing access to data analytics by expanding the functionality of USASpending to make relevant data in public procurement available, understandable, and actionable for current and future stakeholders.
The goal of this Note is to highlight the need for data analytics by evaluating the current state of open data in the United States as it is utilized in federal procurement practices. Open data, if utilized properly, can serve as the transparent, accountability-focused link needed between the government and its citizens. However, without implementing practical ways to use the raw data made available, the realities of open data in federal procurement fall short of satisfying the fundamentally democratic need for transparency and accountability. This Note will focus on offering a solution to this gap by supporting a legislative addition to the DATA Act, which would expand USASpending to include robust data analytics of procurement practices.
Part II of this Note will provide background on the field of open data and the current state of open data as it is being introduced by the United States government. Part III will discuss how open data has been used in procurement practices and identify areas in which the practice can be improved. Part IV will expand on the previous discussion by offering evidence-based, practical solutions which can be implemented to expand USASpending to promote innovation, accountability, and transparency in public procurement.
This section will explore the field of open data broadly, beginning with the conceptual background and goals of the movement. This section will then discuss the current federal implementation of open data as required by the DATA Act. This section will conclude by introducing USASpending and open data in public procurement.
As defined by Open Knowledge, “Open Data is data that can be freely used, reused and redistributed by anyone—subject only, at most, to the requirement to attribute and share alike.” The modern open data movement has set precise definitions for the terms “availability and access,” “re-use and redistribution,” and “universal participation.” “Availability and access” establishes that data be made available completely, without cost-barriers, in a conveniently accessible way. “Re-use and redistribution” requires that data be unrestricted from cross-use with other data sets or manipulation in different contexts.” “Universal participation” ensures a broad reach of access, without barriers that may discriminate against persons wishing to use the data. Together, these standards allow different systems and organizations to work in tandem with a wide range of cross-disciplinary data sets, furthering the goals of innovation and collaboration.
Open data is already a familiar cultural standard. At academic institutions globally, the open-data-driven search engine Google Scholar allows researchers to easily find and access peer-reviewed sources on a wide range of topics. In the business world, the website Yelp compiles open data regarding businesses, including websites, services, prices, and reviews to provide potential customers with important information before they consume a product or patronize a business, empowering informed consumerism and accountable marketing. Lastly, individuals searching for jobs can use open data made available on the website Glassdoor to research available positions, pay trend analyses, wage reports and other data points relevant to their career choices. While these sites do not openly advertise themselves as open data repositories, the functionality that they offer is a direct result of publicly publishing otherwise inaccessible and unusable data.
Open data is not a new concept for the federal government. For example, the United States Census Bureau has been collecting demographic data about the United States population since 1790. Any United States citizen with Internet access can use the information available on the website Census.gov to better understand their community’s social and economic composition. Significantly, the public data collected and published by the Census Bureau is used by political leaders and politicians to create voting districts, influencing the landscape of American politics by determining the value of votes. Similarly, the U.S. Food and Drug Administration (FDA) makes important data publicly available to United States consumers regarding food standards, foodborne illnesses, potentially harmful contaminants, and other relevant information. Without access to this information, United States consumers would have little reliable insight into food health and safety, allowing companies to exert an unfair advantage over unwitting consumers.
Open data has also been implemented at the local level, with state governments utilizing open databases and tools. For example, during Hurricane Sandy, the New York City government made emergency information publicly available on an open-data public platform, including evacuation zones and shelters. Using this data, developers quickly created interactive maps on the same platform, which were then used by New Yorkers to understand the situation evolving around them and share or redirect resources where needed.
The growing prevalence of open data, in its many forms and uses, reflects a shift in the public’s expectations of both their government and private companies patronize. Consumer use of open data in other spaces, such as those described above, signals a strong desire for transparency in all areas of society. For the government, specifically, open data encourages new forms of public oversight, enabling citizens to informedly participate in their own government.
In 2006, Congress enacted the Federal Funding Accountability and Transparency Act (FFATA). One requirement of this legislation mandated data on federal spending greater than $25,000 be made available on a publicly accessible and searchable website. This mandate led to legally required data collections and disclosures by organizations receiving federal funding submitted within thirty days of a contract award. Under this act, the Office of Management and Budget was tasked with ensuring
the existence and operation of a single searchable website, accessible by the public at no cost to access, that includes for each Federal award—(A) the name of the entity receiving the award; (B) the amount of the award; (C) information on the award including transaction type, funding agency . . . ; (D) the location of the entity receiving the award and the primary location of performance under the award . . . ; (E) a unique identifier of the entity receiving the award . . . ; and (F) any other relevant information specified by the Office of Management and Budget.
However, there was no requirement for data standardization in collection for the purpose of sharing, comparing, or usability. Further, individual agencies’ budgets were not connected to the umbrella budget databases, making it nearly impossible to trace spending by individualized dollar amounts.
In 2014, Congress enacted the DATA Act. The DATA Act served to update and expand the FFATA, adding a newly stated goal of government-wide data standards that produce “consistent, reliable, and searchable data.” The DATA Act aimed to expand the efforts of transparency by making federal spending information more accessible to the public and simplifying the process of data collection. It required the U.S. Department of the Treasury (“Treasury Department”) to
(2) establish Government-wide data standards for financial data and provide consistent, reliable, and searchable Government-wide spending data that is displayed accurately for taxpayers and policy makers on USASpending.gov . . .;
(3) simplify reporting for entities receiving Federal funds by streamlining reporting requirements and reducing compliance costs while improving transparency;
(4) improve the quality of data submitted to USASpending.gov by holding Federal agencies accountable for the completeness and accuracy of the data submitted . . ..
USASpending serves as a national repository for federal spending data. The goal of this website is to allow different types of users, ranging from the average United States citizen to contracting officers, to be able to follow the money from Congress to the people. USASpending makes data publicly available on federal agency spending, agency accounts, award types, award recipients, and award subrecipients. While a lot of information is publicly available, due to privacy and national security regulations, some data cannot be made available on USASpending, including personally identifying information, proprietary information, security-compromising information, and tax expenditure data. Additionally, the legislative branch, the judicial branch, and some smaller-sized agencies of the government are not required to report their spending to the website.
USASpending currently features an advanced search functionality, allowing users to narrow or broaden their inquiries based on fiscal year, award recipient, agency and other criteria. This data, dating back to Fiscal Year 2008, is sourced mainly from the Federal Procurement Data System and the Federal Assistance Award Data System. The website also features a “Spending Explorer” function, which breaks the data available into three categories: Budget Function, Agency, and Object Class. This tool allows users to see how the budget is broken down categorically, the amounts obligated to agencies, and how these funds are split by object class categories. After a series of click-throughs away from the initial graphic, the Spending Explorer tool offers a categorical explanation of where federal spending is occurring. After looking at and clicking around different charts, users are eventually directed to the award profile page, detailing technical information specific to a particular award contract summary.
While the enactment and enforcement of the DATA Act reflects a step in the right direction, many Americans, even those familiar with the procurement process, do not know about the website or its functionalities. A report issued by the U.S. Government Accountability Office (GAO) indicates that, in addition to the website’s limited viewership, a lack of transparency on the website regarding data limitations and poor data quality have resulted in low levels of trust among users who do interact with the site. In this report, the GAO recommended several possible improvements, including a broadened search function to enable users to find specific content, publicizing data limitations, and promoting efforts to make the website more user-friendly for all stakeholders of procurement.
The data available on USASpending is incredibly valuable for those interested in learning more about federal spending. However, technically adept individuals and contracting professionals already familiar with procurement terminology may have an easier time navigating and interpreting the information available on the website compared to the average American. While the Treasury Department has begun to organize training materials and tutorial videos on how to navigate the website itself, few resources are available to help users interpret and analyze the data that they are viewing. As identified by the GAO, the way that the data is currently presented limits its reach, lacks essential context, and does not completely fulfill the goals of transparency and accountability in information access. This Note suggests that updates to USASpending are essential in promoting open procurement practices in the federal government.
This Note will now detail the importance of open data in public procurement. First, this section will discuss the current state of open data in the industry. Then, this Note will evaluate how open data, when utilized effectively, can support the evolving field of public procurement.
Open data in public procurement is essential to the democratic ideals of promoting transparency, accountability, and collaboration. Open procurement data creates opportunities for both the government and the public to critique government contracts, detect potentially anti–competitive practices, and hold public officials and private businesses accountable for their decisions. By allowing full, free, and meaningful access to information on contract awards, bids, prices and performance, anyone can evaluate whether the goals of full and fair competition are being fulfilled. Open procurement data also enables the government and the public to more easily flag irregularities, ensuring public funds are being used for the right reasons. Importantly, this increase in transparency also promotes trust in government institutions and the legitimization of governmental processes. Open data in procurement also promotes market access for diverse stakeholders, increasing competition while driving down transaction costs. This growth in collaboration helps elicit efficient, economical solutions to problems faced by governments.
The Open Contracting Partnership (OCP) is one resource that governments, looking to implement open procurement practices, have employed. OCP exists to increase public access to information on government contracts in an effort to increase fairness, equity, and sustainability. The organization provides technical assistance, backend coding, and educational tools for businesses, governments, and the public to better understand open procurement. One instrumental tool developed by OCP is the Open Contracting Data Standard (OCDS). The OCDS is a globally implemented standard that provides a framework on how governments should collect and publish data on procurement. Specifically, the OCDS standardizes vocabulary, data formats, and code that can be adapted to different procurement systems, while fulfilling the goal of making data open and accessible to the public. As of 2022, the OCDS has been adopted by over thirty countries worldwide.
A foundational requirement of federal procurement is ensuring, as often as possible, that competition is fair and fully open. Small businesses, minority-owned businesses, women-owned businesses, and businesses owned by individuals of other socially disadvantaged groups typically face more challenges in securing bids in federal procurement. Often, they are outbid by larger corporations, with more resources and a history of past performance. This outcome has led to effectively unfair, inaccessible practices in procurement. In recognition of imbalances in contracting, the federal government has recently taken steps to expand competition sources, encouraging more diverse and nontraditional stakeholders to engage in government contracting.
In 2021, the Biden administration announced it awarded 27.2% of federal contracts to small businesses, equivalent to approximately $154 billion. This growth in nontraditional contracting participation reflects a fulfillment, in part, of the goals that the Biden administration set to increase smaller, minority-owned business participation in public procurement. Despite its acknowledgment of disparities in the field, this feat falls short of achieving true, sustainable equity. Specifically, by failing to offer all contracting stakeholders modern, technology-based tools that innately foster innovation and improve the concentration of small and medium sized enterprises able to compete for government contracts, simply awarding more contracts to smaller or marginalized bidders is not enough.
Open data is one such tool that can sustainably promote small and medium-sized enterprises (SMEs) in their public procurement participation. SMEs often face challenges in accessing opportunities with the government because of certain barriers to entry, including limited resources and a lack of familiarity with complex procurement processes. Open procurement data can help SMEs identify and interact with procurement opportunities in a cost-effective, user-friendly manner. Specifically, open procurement data can provide access to concise information detailing upcoming bid opportunities, requirements, and past performance, delivered in a way that is understandable by both experts and people who are new to the field. By making this knowledge available and interpretable, the government will afford SMEs a more even playing field in the procurement process, thereby increasing the natural success of their bids.
The benefits of utilizing open procurement data are not limited to SMEs. Open procurement data can reduce the cost and time burden imposed by the procurement process as it currently exists. By making necessary information available and accessible online for free, and by establishing unencumbered, streamlined processes for online bid proposals, the need for expensive, lengthy processes can be eliminated. Not only would this effort promote diverse participation, it would reduce costs for experienced offerors. This would allow for a reallocation of funds, enabling companies to devote more resources to developing more creative, economically reasonable proposals.
Open procurement data can also directly serve the democratic goals of increasing transparency by reducing the risks of collusion, bid rigging, and other anti-competitive practices. The uniformity in the data collection required by enforced standards would limit workarounds that often adversely affect fair competition. This published, streamlined process also enables the public to monitor the procurement process, flagging irregularities which may otherwise go unnoticed. Importantly, these added levels of transparency and oversight will promote fairness in the field, while driving down costs for the federal government, the private sector, and the public.
This section focuses on solving the gaps in effectiveness of the current open data repository for federal procurement, USASpending.gov (USASpending). First, this section will explicitly address the inefficiencies that are currently at issue with the website. Second, this Note will offer a case study of Ukraine’s open contracting system, ProZorro, highlighting key implementations which should be considered by the United States. Third, this Note will then describe the specific measures which should be taken by Congress and the GAO to update USASpending by amending the DATA Act. This discussion will expand on the previously introduced case studies as examples of effective strategies, while addressing public policy concerns which may arise.
USASpending provides access to federal spending information. As it currently exists, several functionalities make USASpending a successful platform. However, there are a few key areas that, if improved, could enable USASpending to be an invaluable resource for procurement stakeholders and a vital tool in government transparency.
As discussed above, USASpending currently features an advanced search function that allows users to research agencies, subject areas, and spending topics. This search function allows users to filter by award type, recipient, and location. The Treasury Department recently introduced limited data visualization tools on USASpending, such as line or pie chart production. This data, in its visual or spreadsheet format, can be downloaded by users who choose to further manipulate, extrapolate, or otherwise analyze the data. While this capacity is an important functionality, these dataset download files are massive, requiring long download times on a computer or high-storage mobile device that has the proper software to view and edit the data. This barrier limits who can meaningfully engage with the data.
Currently, no robust accountability tools are in place to ensure that the data received is being published in a standardized, accurately detailed, and timely manner. USASpending does not publish details regarding every element of the procurement process. Specifically, data may be available to publicize requests for proposals and contract awards, but no data is available to monitor performance of an award. Without this information, the data on procurement practices is incomplete, leaving users incapable of drawing conclusions or completing analyses from the data. This opacity of data also means that no tools are currently available for the public to engage in civic monitoring of contract completion, which could lead to public mistrust of the government.
Besides USASpending, there are over a dozen different government websites, which are not interlinked, where an individual can find federal procurement data. For example, SAM.gov, designed for federal buyers, allows users to post, manage, and receive awards for contract opportunities over $25,000. The same users may visit Acquisition Gateway to interact with resources and connect with other acquisition stakeholders. Those same users can venture to another site, eLibrary, to find information on current contract awards. USASpending has attempted to consolidate a lot of this information into a digestible format; however, without mandated, localized e-procurement, any analytical or cross-comparative work requires both knowledge of all of the resources available and the time and resources to engage with all of them.
When the Soviet Union collapsed in 1991, the newly independent Ukraine focused on reducing transparency barriers to combat similar issues to those described above. To overhaul the public procurement system, the Ukrainian government collaborated with private businesses and the public to develop ProZorro, which translates to “transparently.” ProZorro was established by the Law on Public Purchasing of Ukraine as the electronic procurement system available to the public. The establishment of ProZorro aimed not only to digitize the public procurement system in Ukraine, but also to promote collaboration and innovation among the public and private sectors and the government. The Ukrainian government developed ProZorro with three key principles in mind:
First, that the platform be constructed as a “hybrid public-private electronic open source-based system.” This option means the system operates differently from a single-platform website, allowing information from both the public central database and commercial marketplaces to contribute data and competitive information to attract both contracting entities and suppliers.
Second, the tool should live up to its motto, “Everyone can see everything.” No data on ProZorro is restricted after it is published. The underlying message imparted by this motto speaks to the true sentiment of open data in procurement: everyone has the opportunity to see everything. To accomplish this goal, data is publicly accessible via the online business analytics module in both consolidated and individual formats.
Third, ProZorro should promote the “Golden Partnership Triangle.” This triangular collaboration between the government, the public, and businesses ensures a sense of shared ownership over the process to establish trust and independence among stakeholders.
After the enactment of the Law on Public Purchasing, which mandated electronic public procurement procedures, ProZorro was implemented quickly. Phase 1, which began in April 2016, mandated electronic public procurement for central executive bodies and those carrying out “below-threshold” contracts for monopolist activities. Phase 2, which began in August 2016, required electronic public procurement for all procuring entities. ProZorro uses the criteria set by the Open Contract Data Standard (OCDS) to inform how data is collected, so anyone can view, understand, and analyze the relevant data related to public contracting.
The implementation of and public engagement with ProZorro has been overwhelmingly beneficial for all stakeholders in Ukrainian procurement. The reforms made to the public procurement system have saved the Ukrainian economy approximately six billion dollars. With real-time engagement made more accessible, more businesses have begun competing for government contracts. Public participation by over 100,000 citizen monitors lowers mistrust and corruption risk, ensuring publicly funded contracts are honestly completed. Notably, over a four-year period, ProZorro monitors were able to uncover violations in over 30,000 offers, saving billions of dollars in contract costs. During the COVID-19 pandemic, Ukraine’s medical procurement agency, bolstered by civic monitoring, utilized ProZorro to obtain critical data to plan, engage suppliers, and communicate strategically with stakeholders, to reduce medicine prices by up to forty percent. The engagement with ProZorro has also led to the innovative employment of other data-driven tools and services, such as ProZorro.Sale, an open marketplace allowing the sale of state assets.
In 2022, Russia invaded Ukraine, raising new challenges for government leaders in procurement. The Ukrainian government had to adapt to the new circumstances of wartime, ensuring that both military and civilian needs for goods and services were being met according to the established guidelines of transparency and accountability. In spite of these challenges, ProZorro has continued to run effectively, enabling the government to auction assets raising money for the war efforts. ProZorro has also enabled the government to source a multitude of war-related goods, promoting the sustainment of Ukrainian businesses.
To protect Ukrainian interests, the Ukrainian government has had to make changes to ProZorro. Specifically, because of the rapid, radical change in circumstances, the promise of prompt, full disclosure of procurement data has been subjected to flexibility allowing censure of some types of information, such as sensitive supplier information. This cutback on transparency led to a journalist’s uncovering of a $355 million corruption scandal in which the defense ministry engaged in a contract at “two to three times the market rate.” This revelation of overt corruption led to multiple resignations, but has raised concern over whether the corruption Ukrainians had fought so hard to overthrow had crept back into their country’s procurement system because of the focus on the war. This event, despite its unfortunate revelation of misused government funding, provides robust evidence that the transparency, accountability, and collaboration measures enforced by the pre-war ProZorro are essential to combating corruption in procurement.
To promote transparency, accountability, and collaboration in procurement, the federal government should update and expand USASpending.gov to include more robust open procurement data practices. Specifically, Congress should amend the DATA Act to specifically include an adoption of the Open Contracting Data Standard (OCDS) and a requirement for all federal contractors to submit data according to this standard in a complete and timely manner. The federal government should effectuate this amendment by investing in upgrades for the technological infrastructure of USASpending.gov and user-facing tools to align with the standard set by the OCDS. Lastly, the federal government should charge the Treasury Department with compiling, distributing, and maintaining educational materials to promote the use, reuse, and analysis of the data being made available on USASpending.
Congress should amend the DATA Act to create clear one piece of legislation in support of open data use. This new broadened legislation would reduce the risk of conflict with other laws or regulations by simplifying and clarifying the requirements. The legislation should include anti-corruption provisions, measures to promote competition, and safeguards for anti-competitive activity. The new Open DATA Act would establish clear requirements for publishing data at specific stages in the procurement process and onto a digital platform according to the OCDS. The Open DATA Act’s digitization requirement should encourage accountability in data reporting through a simple, easy-to-use workflow platform, but also implement penalties for noncompliance. This Act should specifically authorize public participation, through a civic monitoring tool and explicitly charge an agency with providing guidance and maintaining guidelines for use of the website.
The following is an example of how to amend the DATA Act to promote transparency and accountability in federal spending:
To amend the Digital Accountability and Transparency Act of 2014 to establish open data regulations to promote accountability and transparency in federal spending.
This Act may be cited as the ‘‘Open Data Accountability and Transparency Act’’ or the “Open ‘DATA Act.’’
The purposes of this Act are to—
(1) expand the Digital Accountability and Transparency Act of 2014 by consolidating existing digital accountability law into one overarching regulatory scheme;
(2) implement the Open Contracting Data Standard as the Government-wide data standard for financial data, improving the quality of data published;
(3) provide consistent, reliable, and searchable Government-wide spending data that is displayed accurately for taxpayers and policy makers on USASpending.gov (or a successor system that displays the data);
(4) holding Federal agencies accountable for the completeness, timeliness, and accuracy of the data submitted by implementing penalties for noncompliance; and
(5) encourage public participation through oversight and civic monitoring engagement.
The provisions of the DATA Act of 2014 shall remain enforceable. To the extent a conflict arises, the updated language and amendments set forth below shall prevail.
(1) The Open Contracting Data Standard (OCDS)
(a) All federal agencies subject to this Act, and the entities with whom they enter into the procurement process, shall publish the data defined in subsection (b) on USASpending.gov in accordance with the Open Contracting Data Standard.
(i) The Department of the Treasury will be tasked with establishing this new data standard to the extent reasonable and practicable;
(ii) The Department of the Treasury shall implement, update, and maintain the website USASpending to reflect the changes required to ensure transparency and accountability in line with the OCDS.
(b) Data must be collected and published according to the OCDS in each of the following stages of the procurement process:
(i) Planning, disclosing: (i) advance notice of a public announcement of the project, (ii) the draft Request for Proposals (RFP), (iii) previous studies and documents on the project, (iv) observations on and responses to the draft RFP, and (v) the administrative act of opening the selection process;
(ii) Tender, disclosing: (i) procurement announcement and tender documentation, (ii) changes to tender documentation and explanations regarding changes, (iii) minutes of disclosure of tender offers, (iv) notice of intent to enter into the procurement contract, and (v) notice of rejection of other offers;
(iii) Award, disclosing: (i) copies of request for clarifications and responses, (ii) comparison between offers, specifically regarding requirements, compliance, and price, (iii) award recommendation, (iv) date and place of evaluation, and (v) information about the offeror awarded;
(iv) Contract, disclosing: (i) the full text of the signed contract, (ii) notice of any amendments or changes to the contract, and (iii) reports on performance of the contract;
(v) Implementation, disclosing the following within sixty days of execution, amendment, or completion of a contract: (i) the timeline for awarding a contract, (ii) specifications for the subject matter of contracts, (iii) execution of contracts, including objective, tender, estimated budgets, methods of execution, identified subcontractors, quantity and scale, adherence to diversity, equity and inclusion initiatives or compliance with other initiatives aimed at fostering diversity of procurement participations, (iv) performance reviews, including results of inspections and dates of completion.
(1) Civic Monitoring
(a) The updated digital platform required by this Act shall include a monitoring tool that enables the public to (i) have access to all information concerning a tender, (ii) monitor all information published, and (iii) report violations of procurement law, oversights, or deficiencies in the system.
(2) Noncompliance
(a) Contracted entities who fail comply with the mandated reporting regulations set forth by this Act may be subject to the penalties:
(i) At the agency’s discretion, a percentage not to exceed fifty percent of the remuneration of the contract to the agency;
(ii) At the agency’s discretion, suspension or debarment from future contract opportunities.
(b) Federal agencies who fail to comply with the mandated reporting regulations set forth by this Act may be subject to the following penalty:
(i) The contract will be voided until the requisite information is published.
(3) Agency Guidance:
(a) The Department of the Treasury shall be responsible for compiling and disseminating educational information regarding the new data standard, OCDS.
(b) The Department of the Treasury shall compile and disseminate informational, tutorial, and other guidance materials to aid all procurement stakeholders in understanding and effectively using the new program.
Some members of Congress may be opposed to such a sweeping adoption of an open data standard in procurement because open procurement practices could have adverse impacts on competition. First, on the one hand, if SMEs see what their competitors are bidding or have bid in the past, and they think their offer may not be as competitive, they may feel disinclined to participate. On the other hand, larger contractors with access to more advanced analytic technology may be able to more easily understand and interpret the data, and could reformat their bid to secure the contract. This adverse effect, however, is not reflective of open procurement data. Open procurement data focuses on having transparency and giving stakeholders tools that they need to make an informed decision on whether to compete. These choices, and how entities choose to engage with these choices, is a direct, and welcome, result of open procurement.
Pulling the curtain back on government spending could also lead to unrest and frustration. On the governmental side, politicians could use certain facts and figures published as open data as ammunition for their own causes or to tear down their opponents. Private citizens perusing open data could take issue with how the government is spending their tax dollars, leading to civil unrest, potential fodder for protests and possible shifts in voting trends. Again, however, as this Note has aimed to prove, disagreement rooted in shared information is at the heart of democracy in the United States. Open data is just one tool to empower the public and the government to engage in more open dialogue, resulting in collaboration-based innovation that drives the country forward.
The federal government’s public procurement expenditures have steadily increased over the past few years, meaning that the federal government continues to invest billions of dollars each year in government contracts. Because of this increase, any changes to the procurement process must be made in consideration of potential hazards, vulnerabilities, and other risks associated with transforming and modernizing public contracting into an open procurement system.
The federal government should expand USASpending.gov to aggregate and publish the procurement data from all federal agencies in a user-friendly way. The GAO has reported that while the data available on USASpending.gov has improved recently, data sets often lack completeness, accuracy, and timeliness. The federal government should invest in the technical infrastructure needed to establish and maintain an accessible and usable interface for procurement processes. This update should include ensuring that all procurement resources are housed under one domain, to avoid data being lost, misplaced, or inconsistent among different platforms. This update should also establish ways to manipulate the data, download datasets, and compare data, so all user-types can benefit from the technology. Specifically, users should be given the opportunity to engage with Application Programming Interfaces (APIs) like data visualization tools that are designed to promote analysis and reuse of procurement data beyond the public contracting field, such as that by researchers or journalists.
Security and privacy vulnerabilities that come along with any technological development must be considered in implementing open procurement practices. The publication of sensitive procurement data risks exposing confidential information, such as individuals’ personal information, or governmental or private financial information to unauthorized third parties. Cyber-attacks and breaches—both those originating in the United States and those perpetrated by foreign entities—are not uncommon. Persons looking to maliciously steal or misuse sensitive data could lead to national security risks. The simple existence of a robust database such as the one this Note argues in favor of invites a new form of technological warfare that could severely compromise national interests.
Open procurement, similar to e-mail and cloud storage management software, relies entirely on the stability of the technology that it is using. The vulnerabilities posed by increasing the government’s reliance on technology should not override the benefits of utilizing these technologies. Instead, the government should focus on securing and encrypting the websites on which sensitive information is being shared, conducting vulnerability assessments, and developing robust privacy laws and regulations that counteract cyberterrorism, which compromises privacy and security. It would be naive for the government to dismiss open procurement data practices because of technology concerns in a world rapidly shifting towards the cloud. Investing in these infrastructure measures are critical to mitigating the risks associated with such technology.
Lastly, the investments in open procurement will be futile without also investing in educational and promotional materials to make the public and private sectors aware of its functionality. The federal government, through the Treasury Department, should establish outreach programs offering tutorials and sample analyses available to all users. By educating users on the technology or by making the technology more accessible, open procurement empowers all user types to engage with the public contracting process more meaningfully.
Developing this technology and the accoutrement required to ensure its longevity and usability will be expensive. Although the government may be able to afford this development, a cost is then imposed on government contractors or agency departments who engage with the technology. These groups working on tight deadlines or adhering to other constraints may be trying to get their work done as efficiently as possible. But, because of heightened data requirements and security measures, their cost burden will be driven up by implementing open procurement processes. This factor could have negative impacts on government services or increases in taxes. Still, the overall benefits to increased competition and lower overall government spending in contracting outweighs these short-term impacts reflective of an adjustment to new systems.
At present, the Freedom of Information Act (FOIA) is one of the only legal pathways for private citizens or organizations to request disclosure of non-publicly unavailable government information. A compelling argument might be made that FOIA requests already accomplish what open procurement data attempts to do without the security risks or added cost burdens. However, open data allows a more intimate insight to government effectiveness, proactively resolving issues of mistrust or misunderstanding. Unlike FOIA requests that operate from an accountability-driven perspective, open data initiatives are driven by problem-solving endeavors, collaborative issue resolution, and innovation.
Furthermore, FOIA has not been able to keep up with the technological advancements of the current era. Open procurement data will propel reliable government data into the hands of the modern American. By strategically offering access to datasets and trends, the government retains ownership of sensitive data while remaining accountable for what the data may contain. This strategic sharing significantly alleviates the time and cost burden presented by FOIA requests on governmental agencies. Still, open procurement data will not eliminate the need for FOIA. Open procurement practices would not require the disclosure of legitimately risky data, such as that related to defense contracting. Thus, agencies handling FOIA requests may benefit from the implementation of open procurement data, as it will lead to more time and resources for these agencies to fulfill more meaningful requests.
In 2019, President Trump and the Bureau of Prisons rushed a no-bid contract to procure the ethically questionable lethal chemical compound, pentobarbital, to execute thirteen human beings. While the news of the executions garnered mass media attention from all types of groups, little was mentioned about the drug itself because of the overt secret-keeping enabling the procurement. In a future United States, one in which every citizen, government official, and contractor has access to procurement data, this would not be a problem. Open procurement practices would allow users to be more equipped in their evaluation of the government’s decision to label this rushed execution an “emergency” in order to enter into a no-bid contract. Despite the sole source award, the people would have the choice to look at where the drugs are coming from, how much the government spent on them, and what the government had to do to get the drugs. Importantly, this accountability tool would empower all those who chose to engage with the data the ability to understand it and foster informed conversations on important governmental issues.
As American society progresses into a more connected, collaborative modern era, the federal procurement system cannot remain archaic. Equipping the common citizen, the businessperson, and the government with equitable access to data on spending will increase trust and respect for the processes and institutions established by the government. Despite expected risks associated with advancing technology into largely uncharted territory, open procurement is an essential step in the innovation of procurement and the preservation of data. By implementing standardized open procurement practices, ensuring data is kept secure and accessible, and promoting the use, reuse, and understanding of the data, the procurement process can become a blueprint for transparency and accountability in government conduct.
