Even if GSA did perform the offset, it would remain possible, consistent with the regulation, to relieve the contracting official of liability. GSA has the authority promptly to refund an amount already offset when a debt is waived or otherwise found not owing the United States, or when GSA is directed by an administrative or judicial order to refund amounts deducted from the employee's current pay. 41 C.F.R. § 105-56.012. The regulations do not state who may make such a finding. A finding by the Department of Justice or GSA superiors that no debt was owing and that a refund should be made would relieve the officer of individual liability.

The only remaining theoretical risk of exposure would arise from qui tam suits under the False Claims Act, 31 U.S.C. §§ 3729-3733. Such suits would almost assuredly fail, however, because such actions should either be defeated pursuant to a motion to dismiss or on the merits. In brief, in order to state a claim under 31 U.S.C. § 3729, a plaintiff must demonstrate that someone knowingly submitted or caused to be submitted a false or fraudulent claim to the government." If an official simply authorizes payment on a contract lawfully entered into, it is difficult to envision how liability could lie under the False Claims Act. Although, in some situations, False Claims Act cases may be brought against

= Section 3729(a) establishes liability for:

Any person who -

(1) knowingly presents, or causes to be presented, to an officer or employee of the United States
Government or a member of the Armed Forces of the United States a false or fraudulent claim
for payment or approval;

(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a
false or fraudulent claim paid or approved by the Government;

(3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid;

(4) has possession, custody, or control of property or money used, or to be used, by the
Government and, intending to defraud the Government or willfully to conceal the property,
delivers, or causes to be delivered, less property than the amount for which the person receives
a certificate or receipt;

(5) authorized to make or deliver a document certifying receipt of property used, or to be used,
by the Government and, intending to defraud the Government, makes or delivers the receipt
without completely knowing that the information on the receipt is true;

(6) knowingly buys, or receives as a pledge of an obligation or debt, public property from an
officer or employee of the Government, or a member of the Armed Forces, who lawfully may not
seil or pledge the property; or

(7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal,
avoid, or decrease an obligation to pay or transmit money or property to the Government.

government officials in their personal capacity, the circumstances at issue here do not appear to give rise to such claims. Even if the officer is required to certify that he or she understands that the claim is being paid in accordance with law, such a certification presumably would not be determined to be a false statement, with respect either to rental contracts or photocopying contracts, given this Office's determination that payment of the contracts would be in accord with the law. The contract would have been clearly authorized at the time it was signed (pursuant to a clear executive branch interpretation of the law), the agency would have authorized all the relevant actions (including payment), and the contractor would have fulfilled its obligations under the contract. Thus, there would be no false statement and the intent element -- knowingly submitting a false statement - would also be absent.

Even if a matter were filed against an individual certifying officer, the Department of Justice would have the authority to represent the officer. 28 C.F.R. § 50.15. The Department is authorized to undertake such representation when "the actions for which representation is requested reasonably appear to have been performed within the scope of the employee's employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States." Id. Those circumstances would seem to be present here, although the Civil Division would make the determination regarding representation, whether by the Department or by outside counsel."3

.For the foregoing reasons, we believe that any agency officials involved in the decision to certify or disburse money pursuant to the three types of contracts discussed herein face little or no litigation risk arising from the decision to certify or disburse.

IV

To the extent that 44 U.S.C. §§ 501 and 501 note require all executive branch printing and duplicating to be procured by or through the GPO, those statutes violate constitutional principles of separation of powers. We further find that the provision in subsection (2) of 44 U.S.C. § 501 note authorizing the Public Printer to certify exceptions to the general rule of printing by or through the GPO is unconstitutional, but we need not ascertain the implications of that determination given our conclusion that executive branch departments and agencies are not obligated to procure printing by or through the GPO. Finally, we perceive little or no risk of liability or sanction to contracting officers who act consistently with this opinion.

"It should also be noted that, under the False Claims Act, the United States has significant control over suits filed under that Act alleging that the contracting officer somehow submitted a false statement in order to get a claim allowed or paid. As a procedural matter, the United States has the opportunity to intervene in a False Claims Act action filed by a relator and may, following intervention, move to dismiss. If the relator objects, however, it has the opportunity to have its objections heard. 31 U.S.C. § 3730(c)(2)(A).

Mr. DIMARIO. Thank you, Mr. Chairman. May I say one thing? Mr. HORN. Yes.

Mr. DIMARIO. I would like to invite you, Mr. Chairman, and all members of the committee and staff, any staff that you want, to come down and visit us at the Government Printing Office, and see what we do and how we do it, in terms of electronic products, what we do in-house. I think it might be revealing to you that we operate quite a modern facility, and we do act, in my judgment, for the benefit of the taxpayers.

Mr. HORN. Well, I thank you very much, Mr. DiMario and Superintendent Kelley.

Mr. Holstein, I'm sorry we didn't call on you, but I appreciate the role you are doing there as the Chief Financial Officer/Comptroller. We have high regard for the Chief Financial Officers throughout the Federal Government, and that includes the legislative branch. So thank you for joining all of us.

Mr. HOLSTEIN. Thank you, Mr. Chairman.

Mr. HORN. Thanks very much for coming.

If the next panel will come forward, we will begin the testimony on the panel: Daniel S. Jones, Robert L. Oakley, and Wendy Lechner.

OK. If you would all rise and raise your right hands?

[Witnesses sworn.]

Mr. HORN. The clerk will note that all three witnesses have affirmed.

We will begin with Daniel S. Jones, the president of NewsBank, Inc., appearing on behalf of the Information Industry Association. I might say to staff, all of the relevant résumés will be included after we introduce each witness. And, of course, your full statement is put in after we introduce you, and we would like you to summarize it for us, so we can get down to questions and have a dialog. STATEMENTS OF DANIEL S. JONES, PRESIDENT, NEWSBANK, INC., ON BEHALF OF THE INFORMATION INDUSTRY ASSOCIATION; ROBERT L. OAKLEY, WASHINGTON AFFAIRS REPRESENTATIVE, AMERICAN ASSOCIATION OF LAW LIBRARIES; AND WENDY LECHNER, LEGISLATIVE DIRECTOR, PRINTING INDUSTRIES OF AMERICA, INC.

Mr. JONES. Thank you very much, Mr. Chairman, and good morning.

NewsBank is a mid-sized news information publishing company. My objective today is to bring you an example of the type of problem which occurs when an agency of the Government ignores the Paperwork Reduction Act.

I'm not an expert on PRA, but I want to relate an injustice that has injured my company, that has occurred by an agency not adhering to PRA. The bottom line of my presentation is that the Government, in the form of an agency, specifically the NTIS, is competing with my business by republishing material which is not even Government information. It is copyrighted private information that is being sold by the NTIS to my customers, which are university libraries.

44-892 97-4

Now, as you can imagine, this disturbs me greatly; also, that my taxes and the taxes of my employees are subsidizing my competitor, the Government.

I am very much in favor of the public access to Government information, on the other hand. I have been a trustee of my local public library for 10 years. I have been a member of the American Library Association for 25 years. All of my customers are librarians, and a number of my products actually facilitate the further use of Government information.

Now, since the passage of PRA, my fellow IIA members and I have witnessed a number of agency initiatives that fly in the face of both the language and the intent of PRA. I can best explain these problems by citing the experiences of my company.

I began NewsBank 25 years ago and now employ 400 people in Connecticut, Vermont, and Florida. It may surprise you to learn that my company, whose primary mission is to provide access to news sources, is so concerned about Government competition and Government information policy.

In fact, when I started my company, I certainly didn't think that unfair competition for my business would arise from the Federal Government. Sadly, this is precisely what I have been battling for over a year now, with the World News Connection, a product published by NTIS. It is competitive because it contains much of exactly the same foreign news content that I publish with my business, and other publishers in our industry republish, exactly the same content.

When NTIS created this competitive product about 2 years ago, it appears that they did not demonstrate any significant effort to comply with the PRA. As a result, much of its content, as I mentioned, duplicates the very same information which is found in my products and that of other publishers that are private.

As I understand it, Congress intended NTIS to be subject to the PRA. In fact, the IIA and its members have consistently brought this situation to the attention of the officials at that agency and OIRA. Sometimes I wonder, however, if the agency's only real knowledge of PRA is how to avoid the act, not how to implement it.

Best I can tell, NTIS did not take adequate efforts to give public notice about its plans for its new product, the World News Connection. If they did, it was only to determine whether they could capture a profitable market share.

Now, another significant point that I would like to make is that when I publish a product, I must cover the entire cost of that product to bring it to market. Apparently, this practice is not required of the NTIS. As the director of NTIS has stated, the translation costs for the foreign news content in his product are at least subsidized by the taxpayers. That's a significant savings to NTIS, and one that I can't match.

Now, on top of the ability to avoid covering some of the costs of publishing its competitive product, NTIS doesn't pay any taxes. About half of my profits are paid out to various Government taxing bodies. That means that I have to earn twice as much to improve my products for my customers as the NTIS.

Now, in addition to these points, I don't know how a foreign news information product falls under the purview of the NTIS. It's not scientific; it's not technical; and it's not engineering information.

For over a year I have worked to resolve this issue. I regret to tell you that no progress has been made. The NTIS World News Connection product is on the market. The harm has been incurred by my company, in terms of lost customers and potentially future sales.

If this trend continues, my company may have to stop investing in some of its information products, and a significant number of my employees may lose their jobs. My company's case demonstrates, gentlemen, that unless a strong enforcement of the PRA is forthcoming, NTIS and other Government agencies will continue to compete with the private sector, to the detriment of private sector jobs. Now, is the loss of private company jobs the objective of an agency of the Department of Commerce? I certainly hope not. NewsBank's experiences with the World News Connection are especially relevant to today's hearings, in that NTIS has demonstrated the dangers that lie in not strictly enforcing PRA principles.

I would also like to comment that, for the most part, the GPO seems to have been a responsible disseminator of Government information, but there is no guarantee that, in a rapidly changing information marketplace, tomorrow's GPO may not be pressured to act more like a competitor, nor that agencies will use the GPO to avoid the mandates of the PRA. As I see it, one certain way to avoid these potential problems is to require enforcement of PRA.

My point, therefore, is that I believe passage of the PRA is not enough, not enough without enforcement. We would recommend that the subcommittee review the efforts that OIRA has taken to ensure that agency officials follow the specific requirements of the law. And gentlemen, we are very much appreciative of your starting that process by holding this hearing here today.

The information industry does not make this request lightly, but only after attempts to deal directly with OIRA and several other agencies that have proven to be unsuccessful. My case, as I have described to you, as well as that of other industry situations, indicate that there appears to be a general lack of enthusiasm for the PRA within the executive branch, and only congressional intervention would seem to be the way to overcome this condition.

In closing, I would like to express my appreciation to you all and the subcommittee, and for the opportunity to appear today. My goal in being here is to find a way to stop the Government from competing with my product, my taxpaying business. I hope you can help achieve that goal.

Thank you.

[The prepared statement of Mr. Jones follows:]