June 15, 2004 The Honorable Tom Ridge
Secretary
U.S. Department of Homeland Security
Nebraska Avenue Complex
Washington, DC 20393
Dear Secretary Ridge:
Twice in recent months we have written to ask why the Department of
Homeland Security is rushing to conduct a public-private competition
for 1,100 Immigration Information Officer (IIO) positions within the
Bureau of Citizenship and Immigration Services (USCIS). New
information has come to our attention that reinforces our conviction
that the competition will not improve the Department’s performance and
is contrary to the national interest. In light of this new
information, we urge you to cancel the competition.
Documents produced by the Department reveal that USCIS officials
doubted the wisdom of proceeding with the competition. They argued
that it should not be held while the Department, and immigration
agencies in particular, were undergoing a major reorganization, and
that the competition would not improve the agency’s efficiency. Agency
officials also questioned whether the IIO functions were properly
classified as “not inherently governmental.” The USCIS Associate
Director for Operations, whose responsibilities include managing the
1100 IIOs along with all other domestic operations at USCIS, has
confirmed that he and many other immigration officials disagreed with
the decision to compete the IIO functions, and they attempted to
convince DHS management to cancel or delay the competition. Telephone
Interview with Bill Yates, Associate Director for Operations (June 14,
2004) (hereinafter “Yates Interview”). USCIS Director Eduardo Aguirre
agreed in early 2003 to discuss with his superior at DHS whether to
delay the A-76 competition. Id. The concerns of the Department’s
experienced immigration agency officials were rejected by DHS
leadership; evidence indicates that their focus may instead have been
at least partly on achieving numerical government-wide quotas which
Congress had expressly prohibited.
Consultants from Grant Thornton and PEC Solutions, working at the
direction of USCIS officials, drafted memoranda and presentations to
demonstrate that going forward with the job competition was unwise.
The documents persuasively make the case that plans for the IIO
competition were structured poorly, and would not improve the agency’s
efficiency or effectiveness. Personnel from DHS Legislative Affairs
acknowledged that multiple drafts of the memoranda and presentations
were prepared at the request of and for the use of USCIS management,
particularly Michael Aytes, Director of the Office of Information and
Customer Service. E-mails produced to us demonstrate that contractors
collaborated closely with agency officials in developing the
documents. We are releasing with this letter a small but illustrative
sample of the documents provided. Both Grant Thornton and PEC continue
to work on the IIO study, and in its first invoice in 2003 Grant
Thornton sought a payment of $75,000 for the work it had done on the
issue. Although DHS Legislative Affairs personnel claimed that the
carefully prepared documents were never formally presented to DHS
officials, Bill Yates has confirmed that USCIS officials opposed the
A-76 competition, that they had raised their concerns with Director
Aguirre, and that he in turn had brought them to the attention of his
superior at DHS. Bill Yates Interview.
Collectively, the documents indicate an effort over many months by
INS and USCIS officials to dissuade Department leadership from going
forward with the competition for IIO jobs. For example, one document
noted: “Accomplishing the A-76 study under present scope may achieve
the DOJ numerical objectives, but will not achieve the A-76 program’s
overarching operational efficiency objectives, and also will not
address the current extensive customer service problems.” Bureau of
Citizenship and Immigration Services, OMB Circular A-76, IIO
Functions, p. 24 (undated) (hereinafter “BCIS Presentation”). The
authors of the document warned that “[r]estructuring under the A-76
process could significantly interfere with further restructuring into
DHS and with the new processes of mission implementation and
execution.” BCIS Presentation at p. 15. The document continues,
“[m]oving forward with an A-76 competition based on present business
processes limits the agency’s ability to implement substantial
organizational and operational improvements expected through
restructuring and realignment under DHS.” Id.
The documents also question the agency’s decision to define all
Immigration Information Officer functions as commercial activities,
noting that when it made the designation the agency “was unaware that
their designation included workers at INS call centers, where there
had already been extensive work done to identify and open to
competition all inherently governmental work,” and that the decision
contradicted other agencies’ interpretations of the same job category.
BCIS Presentation at pp. 16, 17. Furthermore, the document notes that
the IIO functions were initially categorized as a commercial activity
for the FAIR Act inventory “with limited coordination and GIN
[government-in-nature] analysis from INS.” Id. at p. 21. This
demonstrates that immigration agency officials had concerns similar to
those expressed by us and 30 other senators in a letter to you dated
September 4, 2003. Our letter noted that IIOs perform functions
essential to national security, including the detection of fraud and
the adjudication of applications for immigration benefits, and that
these functions must be considered “inherently governmental.”
The documents also strongly suggest that the decision to conduct
the competition at least partly grew out of Department officials’
desire to comply with numerical goals for privatization imposed by the
Administration. The documents make repeated reference to the numerical
goals as the reason both the Department of Justice and DHS decided to
subject the jobs to a competition. See, e.g., BCIS Presentation at pp.
5, 6, 7, 18, 22. According to Bill Yates, the initial decision by the
Department of Justice to subject the IIO jobs to a competition was
particularly ill considered. In 2001, OMB directed that DOJ identify
1200 jobs to be subjected to competition, pursuant to the
Administration’s numerical quotas. The Department delayed making a
decision, arguing that it should be credited for jobs converted in the
previous year. The OMB rejected that argument, and DOJ was given hours
to identity 1200 positions in order to satisfy an OMB deadline.
Then-INS Commissioner James Ziglar was informed by DOJ management of
the decision to subject the IIO positions to a competition. There was
no consultation with INS officials below Ziglar, and no opportunity to
review and discuss the appropriateness of the competition. Although
DHS subsequently went through the motions of re-evaluating the
decision, there was by then a widespread perception within the agency
that the decision on the IIOs would be difficult for DHS to reverse.
Yates Interview.
In appropriations legislation enacted in February of 2003, Congress
prohibited agencies from applying or enforcing any numerical goals or
targets for subjecting employees to public-private competition,
although Administration and agency officials continued to rely on the
15% government-wide quota imposed by the Administration. The DHS
decision to subject the jobs to a competition was announced in August
of 2003, and the evidence suggests that OMB’s quotas were an important
reason for the decision. At a meeting held on October 16, 2003, to
discuss plans for conducting the competition, the DHS Chief of
Competitive Sourcing and Privatization, David Childs, discussed the
need to meet OMB’s 15% goal and described ongoing pressure by the
Administration to conduct competitive sourcing studies. According to
the minutes paraphrasing his remarks, he also indicated that the
Cabinet “requests studies to be completed by elections in November.”
CIS A-76 Study, Meeting Minutes - October 16, 2003, p. 1. Similarly,
in a meeting held on August 13, 2003, with union representatives, Mr.
Childs spoke of the Department’s need to meet its “targets.”
Finally, we question the Department’s ability to successfully run
an A-76 competition of this size, and then engage in appropriate
administration and oversight of any resulting contract should the IIO
work be privatized. A recent briefing provided by the Department’s
Chief Procurement Officer revealed that the contracting office is
severely understaffed. USCIS is at a particular disadvantage, as it is
one of the DHS agencies that did not inherit any contracting officers
from a previously existing agency. In a very similar situation, the
DHS Inspector General reported serious problems with the
administration of a TSA contract, in which contractors inappropriately
performed adjudications on background checks for potential TSA
employees, without adequate oversight by TSA employees. A Review of
Background Checks for Federal Passenger and Baggage Screeners at
Airports, Department of Homeland Security, Office of Inspector
General, OIG-04-08, January 2004. The DHS IG noted that the use of
contractors to make final decisions on adjudications contradicted the
practices of most agencies, as well as a legal opinion by TSA’s Office
of Chief Counsel. Id. at pp. 22-24. Indeed, Bill Yates reports that he
was shocked by a DOJ legal opinion that the work performed by IIOs was
not inherently governmental; for years previously, government lawyers
counseling INS had concluded that performing adjudications was an
“inherently governmental” function. Yates Interview. Should a private
contractor win the work currently performed by IIOs, it will be
responsible for adjudicating immigration benefits and detecting fraud
and criminal activity, requiring the contractor to make decisions both
sensitive to national security and having a huge impact on the lives
of millions of immigrants.
In summary, there is a great deal of evidence that DHS decided to
subject the work of 1100 Immigration Information Officers to possible
privatization partly in pursuit of numerical quotas, and in possible
violation of a law prohibiting such quotas. That decision overruled
the views of experienced immigration officials within USCIS, who had
developed a number of forceful arguments that the competition was
ill-advised. We have heard no convincing arguments addressing the
concerns held within USCIS, and by many members of Congress, that the
work performed by Immigration Information Officers is inherently
governmental, that the competition will not achieve more efficient
operations, and that the DHS should not be engaging in such a
large-scale competition with potentially serious consequences in the
midst of a restructuring of our immigration agencies.
We ask you again to prevent the harm that will be caused by the
privatization of work now performed by Immigration Information
Officers. We appreciate your consideration of our letter, and look
forward to your response.
Sincerely,
Senator Joseph I. Lieberman
Senator Patrick J. Leahy
Senator Edward M. Kennedy
Senator Robert C. Byrd |