This authority allows NIST to procure  the services of up to 200 experts or consultants per year. To date, NIST has used its authority under 5 U.S.C. NIST Has Awarded 39 Contracts Totaling about $1.9 Million to Obtain the Services of Experts

From August 2007 through April 2009, NIST had awarded 39 contracts to  obtain the services of individual experts to assist with a variety of urgent  or short-term research projects. 1). None of the 38 contracts that NIST funded exceeded the statutory limit of  1 year in duration. The number of hours purchased averaged 939 hours per  contract and ranged from 149 hours to 2,080 hours (see fig. In general, for the 38 contracts that NIST funded, the contract experts  designed and conducted experiments, analyzed data, and delivered the  results of their work in reports that are expected to meet NIST’s standards  for publication in a professional journal. NIST officials also stated that despite limits on this authority,  their ability to perform high-quality research in the future will be  hampered if this authority is not extended. Fourth, most laboratory officials told us that they value the COMPETES  Act authority because they have interpreted it to mean that NIST is  allowed to award personal services contracts without competition. According to NIST  officials, nonpersonal services contracts are not as effective as the  personal services contracts they have awarded under the authority  because they do not allow for a direct working relationship with the  contract expert and also require time-consuming contract modifications to  redirect the research, if needed. For example, NIST officials explained that  when the agency awards nonpersonal services contracts to organizations,  the agency has limited ability to select the individual experts who will be  assigned to conduct the work. NIST Has Applied Safeguards over the Use of the COMPETES Act Authority, but Congressional Direction Is Needed if the Authority Is Extended

NIST has developed and implemented a set of procedures to guide the use  of personal services contracts awarded to individual experts under the  COMPETES Act authority and has adopted some of the safeguards  contained in the FAR and some contained in the OPM regulations. However, it is unclear whether additional safeguards are needed for  NIST’s use of this authority because which safeguards NIST is legally  required to apply is an unsettled question. Because of the unclear guidance from Commerce and OPM, NIST  contracting officials told us that they had difficulty in determining which  specific laws and regulations to apply when using the COMPETES Act  authority. Consequently, to help limit the risk to the agency, they adopted  some safeguards from the FAR and some from OPM’s regulations for  NIST’s procedures. Because the statutes granting NIST authority to obtain the temporary  services of experts and consultants do not clearly state whether NIST is  required to obtain the services by appointing individuals as federal  employees in accordance with OPM regulations or by awarding personal  services contracts in accordance with the FAR, NIST faces substantial  uncertainty as it continues to formulate procedures and safeguards for the  use of the authority granted by the COMPETES Act. In our view, the  question of which safeguards NIST is legally required to apply—and thus  the need for any additional safeguards—is unclear at this time. Appendix I: Scope and Methodology

The objectives of this study were to determine (1) the extent to which and  for what purposes the National Institute of Standards and Technology  (NIST) has used its authority under the America Creating Opportunities to  Meaningfully Promote Excellence in Technology, Education, and Science  Act (COMPETES Act) to obtain the services of experts, (2) how effective  this authority has been in helping NIST meet its need for experts to assist  with urgent and short-term research projects, and (3) the extent to which  NIST policies and procedures provide appropriate safeguards over the use  of this authority. The descriptive information  we collected included, among other things, the NIST laboratory that  requested the expert, information on whether the expert had worked at  NIST in some capacity or at another federal agency, the number of labor  hours covered by the contract, the total contract award amounts for labor  and travel, the duration of the contract, and information on whether the  contract was for a fixed price.
Why GAO Did This Study

The America COMPETES Act gave the National Institute of Standards and Technology (NIST), within the Department of Commerce, the authority, through 2010, to obtain the temporary services of up to 200 experts or consultants per year, but did not specify how the agency should acquire these services. NIST has used this authority to award personal services contracts to obtain the services of individuals. The act requires GAO to report on whether additional safeguards would be needed if NIST's authority were to be made permanent. To meet that requirement, GAO determined (1) the extent to which NIST has used its authority; (2) how effective the authority has been in helping NIST meet its need for experts; and (3) the extent to which NIST has provided appropriate safeguards over its use, and what additional safeguards are needed. GAO reviewed statutes, regulations, federal guidance, and NIST's contracts. In addition, GAO interviewed officials at NIST, Commerce, and the Office of Personnel Management (OPM).

What GAO Found

From August 2007 through April 2009, NIST had awarded 39 contracts totaling about $1.9 million using the COMPETES Act authority. Work under 16 of these contracts has been completed, 1 was canceled prior to being funded, and work on 22 is ongoing. Four of NIST's seven laboratories awarded 32 of the 38 funded contracts. Award amounts averaged $50,754. Award amounts covered the costs of labor hours and, in 9 cases, the costs of travel. No contract exceeded 1 year in duration, and the number of hours purchased averaged 939 hours per contract. In general, the experts designed and conducted experiments, analyzed data, and delivered their results in peer-reviewed reports. These experts also assisted with research projects, such as a study of the lighting sources and the materials used for traffic signs and road markings. According to NIST officials, the COMPETES Act authority, despite limitations, has been highly effective in helping NIST meet its need for experts. These officials told GAO that the authority allows NIST to award personal services contracts that enable the agency to quickly redirect research as needed. The officials also stated that the authority allows NIST to respond to the short-term research needs of other agencies that do not merit NIST hiring new staff. Most of these officials value the authority because they interpret it as allowing NIST to award contracts without competition, which helps them to quickly select individuals with specialized expertise. Nonetheless, some officials said the authority limits the amount of pay that can be offered, which may prevent NIST from contracting with the most highly qualified experts; although none of these officials could provide an example of when this had occurred. Also, because NIST has strictly applied the 1-year limit in the authority, NIST officials said they are limited in their ability to retain experts, even if the experts are still needed. If the authority is not made permanent, NIST officials said they will have to revert to the use of nonpersonal services contracts, which they believe are less effective in meeting the agency's needs because they require time-consuming contract modifications to redirect research and limit NIST's ability to select specific experts to do the work. NIST has developed procedures that include safeguards for using the authority, but it had difficulty determining which specific laws and regulations to apply because it did not receive clear guidance from Commerce or OPM. As a result, to help limit the risk to the agency, NIST adopted some safeguards from the Federal Acquisition Regulation (FAR) that apply to contracts and some from OPM's regulations that implement personnel statutes. For example, NIST awarded the contracts at a firm fixed price, a FAR safeguard, and limited the pay offered to experts, a safeguard in the personnel statute. Neither the COMPETES Act nor a second law incorporated in the act clearly state whether NIST is required to use its new authority by appointing individuals as federal employees in accordance with OPM regulations or by awarding personal services contracts in accordance with the FAR. Because the question of which safeguards NIST is legally required to apply is unsettled, the need for any additional safeguards is also unclear at this time.