HOUSE COMMITTEE ON VETERANS’ AFFAIRS
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
JUNE 30, 2010
STATEMENT OF THE HONORABLE WILL A. GUNN
U.S. DEPARTMENT OF VETERANS AFFAIRS
June 30, 2010
Mr. Chairman, Dr. Roe, and Members of the Subcommittee, good morning. Thank you for the opportunity to testify today. As General Counsel and the chief legal officer of the Department of Veterans Affairs, I am pleased to discuss the operation of the Office of General Counsel (OGC) as it supports the Secretary, senior leaders, and VA’s dedicated employees in their daily service to our nation’s Veterans.
The Office of General Counsel and Its Mission
The Office of General Counsel, as mandated by 38 U.S.C. § 311 and 38 C.F.R. §14.500, provides legal assistance to the Secretary concerning the programs and policies of the Department and is specifically responsible for litigation, interpretive legal advice, and other legal services required for program implementation.
OGC interprets all laws, regulations, and judicial precedents pertaining to the Department. We are responsible for the conduct of litigation—both independently and in coordination with the Justice Department—in state and federal courts. OGC also plays a large role in preparing VA’s testimony for legislative hearings, analyzing pending legislation in Congress, and drafting legislative proposals initiated by VA.
OGC supports the strategic goals of the Department by providing accurate, timely, and effective legal advice and representation. OGC also assists in formulating policy and in providing legal advice and services to the Secretary and all VA components. OGC also trains VA employees to ensure compliance with applicable laws. Finally, the General Counsel serves as VA’s regulatory policy officer and manager of its centralized regulatory management office.
The OGC is the Department’s national law firm, operating not only from VA Central Office and but also from 22 Offices of Regional Counsel located throughout the United States. My focus as General Counsel has been to foster a unified national-law office culture. By emphasizing knowledge management, education & training, and intra-office collaboration, we can leverage the collective expertise of nearly 500 attorneys and 230 paralegals and support staff to ensure timely, accurate, consistent legal service to the Secretary and all elements of the Department.
OGC headquarters is organized into seven Professional Staff Groups (PSGs) and the Office of Regulations Policy and Management. Approximately 40 percent of OGC’s 730 personnel comprise these offices, which specialize in providing legal advice and services related to the subject areas identified below:
Professional Staff Group I has responsibility for administrative claims and litigation under the Federal Tort Claims Act, and legal services regarding education programs for Veterans and dependents, VA’s debt-collection activities under a number of statutes, vocational rehabilitation programs, and VA’s loan guaranty program. This group is also responsible for administrative claims under the Military Personnel and Civilian Employees’ Claims Act and for requests for representation made by VA employees to the Department of Justice.
Professional Staff Group II has overall responsibility for providing advice concerning VA's multi-billion-dollar programs of disability and death compensation and pension for Veterans and their survivors, and federal life-insurance programs for Servicemembers and Veterans. In addition, the group is responsible for all legal advice concerning the national cemetery system (except land acquisition, which is handled by PSG V) and various burial benefits administered by the Veterans Benefits Administration. The group is also responsible for reviewing proposed and final rules for all VA programs to ensure compliance with the Administrative Procedure Act, and other statutes and orders governing rulemaking.
Professional Staff Group III provides legal advice in the areas of health-care eligibility and benefits, medical administration, medical research, labor-management relations, human resources, crimes and police matters, VA-affiliated non-profit corporations, technology transfer and ethics. The Assistant General Counsel for PSG III is VA’s designated agency ethics official, responsible for operating the Department’s ethics program.
Professional Staff Group IV is primarily responsible for four legal practice areas—equal employment opportunity (EEO) law, information law, appropriations/fiscal law, and intellectual property law.
Professional Staff Group V is responsible for three major legal practice areas—government contracts, including procurement, bid protests, and contract litigation; real- and personal-property law; and environmental law.
Professional Staff Group VI is responsible for providing management and administrative support and services to OGC at VA central office and the 22 Offices of Regional Counsel nationwide. The Assistant General Counsel for PSG VI also serves as the principal advisor to the Deputy General Counsel and the General Counsel on matters relating to the delivery of legal services to client VA facilities in the field. The Assistant General Counsel, PSG VI, supervises the 22 Regional Counsels.
Professional Staff Group VII is responsible for representing the Secretary of Veterans Affairs before the U.S. Court of Appeals for Veterans Claims (CAVC). The decisions issued by the CAVC are often precedential in nature and carry the weight of law, which, in turn, potentially affects the administration of VA benefit programs and claim procedures.
Regulation Policy and Management: OGC also has a separate directorate, the Office of Regulation Policy and Management (02REG), which is responsible for centrally managing development and amendment of all VA regulations. This office supervises major regulation rewrite projects for the Department, including an ongoing project to reorganize and rewrite all of the compensation and pension regulations in part 3 of Title 38, Code of Federal Regulations (CFR). It also is responsible for implementing the federal government’s e-rulemaking initiative and operating the Federal Docket Management System (FDMS) for the Department.
Offices of Regional Counsel personnel comprise the remaining 60 percent of OGC’s FTE and provide legal services to the Department’s field facilities in a broad spectrum of legal practice areas. Regional Counsel attorneys, and the paralegals and legal assistants supporting them, adjudicate tort claims, including claims of medical malpractice, represent the Department in administrative proceedings involving discrimination complaints and appeals from employee discipline, provide the full array of contract law services, advise and assist regarding the Department’s research corporations and related issues, provide ethics training and review of confidential financial disclosure reports, provide preventive law training, prepare opinions and generally advise Department managers regarding a multitude of legal issues.
Management Reforms and Innovations
The Office of the General Counsel has undergone a number of significant organizational changes in the last 15 years. In 1995, OGC reduced the number of its field offices from 56 districts to 23 regions to combine areas of geographic responsibility to better serve our VA clients.
In 2003, OGC launched its own case and time management system, General Counsel Legal Automated Workload System (GCLAWS). Using GCLAWS, our practitioners create electronic case files, complete with file attachments for key documents and time entry information to document case management. GCLAWS also contains a robust report generation capability to assist OGC users, supervisors and OGC senior management in tracking cases, spotting trends, etc.
In 2008, OGC built the capability to provide contract legal support to VA’s field activities to improve the quality of solicitations and contract awards. Each office of regional counsel now has at least two contract law attorneys. When used to their maximum advantage, the legal support begins before the solicitation and continues through the award, including any protest actions. OGC is also available to advise on contract-administration issues.
OGC implemented a robust client-survey program in 2003 and has used the feedback to deliver our clients the training, preventive-law guidance, and key information about what services we provide and who among us provides them.
We focused similar attention on our greatest resource, our employees. We conducted employee surveys in 2009 and again in 2010. We have provided training to our leaders to maximize use of the feedback to improve where needed and understand better why we are succeeding in other areas so we can sustain the success.
Also in 2008, OGC published its first strategic plan. We built the plan to align our operations with those of our clients. We understand strategic planning is not a static event. Instead, it requires continual review and updating to ensure the plan aligns with changes in Departmental priorities.
As stated in the plan, OGC’s mission is to provide expert, timely and effective legal advice and representation to the Department of Veterans Affairs. While we move to implement our defined mission, the following vision lights our path: to be the premier federal legal organization—unified, national and world class—composed of talented, dedicated professionals, working together to support the Department's mission of service to our nation's Veterans.
The OGC strategic plan lists our core values, the principles that guide our organization.
Honest—we will preserve our integrity and that of the Office of General Counsel in all of our dealings.
Ethical—our practice reflects the highest ethical standards in the legal profession. We demand the highest level of awareness of and compliance with all ethical standards applicable to the Department.
Mission First—Veterans have earned our gratitude and respect. We provide legal services that foster just and fair treatment of Veterans and their families through the faithful execution of the laws, regulations, and policies of the Department.
Professional—we are a highly-skilled, diverse and responsive national law office dedicated to providing timely legal service to the Department. We are responsible and answerable for our professional decisions and actions. We treat everyone with respect and dignity.
Proactive—we are committed to open communications with our associates, stakeholders and clients. To best serve our clients, we are committed to and encourage constructive and early engagement on a wide range of programmatic and legal issues. This can help resolve potential issues before they become legal problems, and result in a more comprehensive policy-formulation process within the Department.
Excellence—we strive to perform at the highest level of competence and to exceed the expectations of our clients and stakeholders. We seek to continuously improve our services and skills.
Transparent—we strive to improve service by making our organization, legal and business processes accessible to and understandable by our clients and stakeholders.
Stewardship—we exercise responsible stewardship of human, financial, and other resources, as well as data and information entrusted to us. We embrace innovative technology to maximize our effectiveness and resource management.
Earlier this year, we began the process of reviewing our strategic plan to ensure it remains relevant and aligned with the Department’s operations, particularly given the focus on transformation articulated by both the President and Secretary Shinseki, and the creation of a new VA Strategic Plan.
The OGC Strategic Plan and our commitment to its many elements promote the concept of a unified national law firm. One key aspect of the Strategic Plan involves greater collaboration and sharing of information within OGC to improve the consistency of our legal guidance and the speed with which we deliver it. This fundamental concept drives many of our current initiatives including Geographic Cooperatives, Specialty Panels and regional training events for OGC personnel.
A stable workforce and timely and effective information technology support are critical to achieving our goal of a truly unified national law firm. Staffing is a paramount concern because over 90 percent of our budget involves payroll and related expenses. Similarly, access to information, current and historical, logically organized and easily retrievable, is critical to our national law firm goal.
Meeting Court of Appeals for Veterans Claims (CAVC) Filing Deadlines
OGC attorneys represent the Secretary in all appeals taken to the CAVC. As the Subcommittee is aware, the number of cases filed in that court has been steadily growing over the past several years. OGC’s ability to increase staffing has not always kept pace. Fortunately, the FY 2010 budget increase for our office has permitted us to catch up to this workload. The FY 2011 VA budget request for OGC would allow us to stand up another litigation team to deal with the expected further growth in new CAVC cases.
The CAVC is coming off a record-setting year in which it received 4,725 new cases and we are now filing approximately 2,000 pleadings per month. With the additional attorney and support staff we have been able to add in FY 2009 and 2010, our average caseloads per attorney are now down to 47 active cases. Experience has shown that when our average caseloads exceed 50, we have difficulty staying current.
This is a high priority for us and while we realize there will always be some circumstances beyond our control requiring extensions to file, our goal is to reduce these requests to the minimum necessary.
Supporting VA Acquisition Activities
A second major challenge is to address the evolving need for legal support in the acquisition process. The Department’s history shows it was slow to realize the value that attorneys could bring to the procurement arena. Fortunately, OGC’s role, as well as the contracting function itself, is being buttressed, and this is a focus of the Secretary’s initiatives to modernize VA.
In the early 1990’s, as now, VA was one of the largest procurement agencies in the Federal government. There were several hundred contracting locations and nearly 2000 contracting officials who annually awarded tens of thousands of contracts totaling several billion dollars in value. These contracts included construction, supply, service, information technology, resource sharing, and interagency agreements. Yet all of the legal support for contracting was provided by Professional Staff Group V, located in Washington D.C., along with three attorneys out-stationed at the National Acquisition Center, in Hines Ill. The VACO staff consisted then of fewer than 12 staff attorneys, and three supervisors.
The role of the attorneys in individual procurements was limited to reviewing certain high-dollar solicitations and other documents per the dictates of the Federal and VA Acquisition Regulations, litigating protests at the Government Accountability Office and claims at the Board of Contract Appeals, and providing advice when requested by the various contracting and program officials. There was no formal role for attorneys in the contract-formation process, including the selection of awardees, or in the contract-administration process. Moreover, existing VA attorney staff were unable to focus exclusively on contracting assistance as they also maintained responsibility for real-estate and environmental matters, regulation and policy reviews and various additional activities. In the mid-1990s and early 2000s, three more attorneys were assigned to support the Austin Automation Center and three attorneys were located at field locations to support construction and supply activities.
The Department reexamined its acquisition process in 2007 and decided to strengthen attorney support to VA procurement activity. In that year, OGC trained an attorney in each Office of Regional Counsel in contract law. In 2008, twenty five additional attorneys were assigned to each of those offices, allowing OGC to transfer responsibility for legal support for contracts awarded by field activities from PSG V to our 22 field offices. Four additional PSG V attorneys have been added to support the national contracting function performed in the Office of Acquisition, Logistics and Construction (OALC) headquarters office.
The Regional Counsel contract-law attorneys are each assigned expert PSG V mentor attorneys with whom to work. The expansion of the Regional Counsel attorney staff was particularly timely in view of VHA’s subsequent consolidation of its local contracting actions first at the VISN level, and later at regional levels — consolidations OGC was well situated to support. In addition, in 2009, concurrent with the establishment of the Technology Acquisition Center in Eatontown, NJ, OGC’s PSG V established a new section to provide dedicated legal support to VA’s information technology acquisition function. This staff consists of 14 attorneys, ten in Eatontown, NJ and four in Austin, Texas, and an on-site supervisory attorney at Eatontown.
The growth of our procurement-attorney corps has permitted an expanded role for them in the acquisition process. OALC requires Contract Review Boards (CRB) in all high-dollar procurements and utilizes Integrated Product Teams (IPT) to prepare and conduct many of those acquisitions. Those innovations greatly increase the demand for legal support. For example, CRBs provide a legal review of the entire procurement process for an acquisition prior to the award decision being made, an excellent means for identifying potential flaws. Even at the earlier stages of an acquisition, there is an increased demand to use IPTs to develop VA’s requirements, with legal counsel participating in the development of acquisition strategy and the creation of the solicitation, evaluation criteria, and statement of work. We are glad to have become full and active partners in VA acquisition activities.
OGC continually explores ways to improve its operations, and is implementing key measures every day. These include increasing focus on attorney development and coordination, and leveraging technology so attorneys can more effectively communicate through a number of means, as and when needed. We also have implemented a new SharePoint Website, which enables each OGC attorney to stay “patched in” on the latest developments within each OGC Professional Staff Group and Regional Counsel Office. The SharePoint Site also contains a search vehicle that enables attorneys to seek and retrieve past legal opinions and memos. We also have enhanced OGC’s regional and national training programs, and instituted a new OGC leadership development program to ensure OGC is poised to retain its best and brightest.
OGC is pointed in the right direction and working hard. As the Department moves forward to centralize aspects of its procurement activities, our office will position itself to provide the best possible legal services.
That concludes my opening statement and I ask that it be entered into the record.
Mr. Chairman, I look forward to whatever questions you and other Members may have.