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Recently, I expressed my concerns regarding several procurement actions from the Trump Administration in a piece for Nextgov/FCW. Issues included nonpayment for contracted work already completed, an uptick in the government’s use of “termination for convenience” clauses, questionable mandates for contract adjustments by the GSA during active performance, and arbitrary reductions in staffing, among other matters.
As I previously indicated, a significant shift was on the horizon.
On April 15, the president enacted an executive order that could significantly impact procurement processes in positive ways. This order should be approached with optimism, as it has the potential to facilitate essential reform in federal procurement.
Focusing on the order itself, it centers around two critical requirements. The first mandates that agencies prioritize the acquisition of commercial software instead of custom solutions. The second involves streamlining the Federal Acquisition Regulation, an extensive set of guidelines that govern the majority of federal contracts.
While these concepts are not entirely new, they deserve support and serious implementation efforts. If executed effectively, this order could catalyze substantive change. So, what are the crucial elements for success?
First and foremost, learning from prior experiences is vital. The Federal Acquisition Streamlining Act (FASA) represents the most significant reform initiative in recent history and exemplified a collaborative approach. Key stakeholders, including agency officials, congressional representatives, and industry experts, were engaged through open discussions. This process highlighted the value of cooperation over partisanship in building trust, which is essential for successful transformation. Given the current political climate, maintaining a non-partisan approach is more crucial than ever. The politicization of procurement, which began over two decades ago, must be addressed to empower the workforce involved in acquisitions. A culture where acquisition professionals feel valued and supported by their leaders is imperative for genuine transformation; without this foundation, progress will be difficult to achieve.
Secondly, the preference for commercial solutions is not a new concept. This principle was a fundamental aspect of FASA and the development of FAR Part 12, which pertains to commercial items, and it has been at the forefront of subsequent reform efforts.
In this context, FASA provides relevant insights. There is a notable discrepancy between the initial vision for commercial buying authorities and the current state of FAR Part 12. Originally, FAR Part 12 aimed to fulfill the fundamental goals of public procurement without the constraints of government-specific contracting requirements that emerged from the era when the government, especially the Pentagon, was a monopsony buyer.
However, since FASA was enacted, approximately 150 contract clauses have been added to FAR Part 12, many of which lack statutory backing. This presents an opportunity to reevaluate and simplify these regulations.
Historically, attempts to adopt a “clean sheet” method in federal acquisition, such as those taken by the FAA’s Blue-Ribbon Panel and the development of Other Transactions Authorities, have often resembled the original vision for FAR Part 12. Unfortunately, like in previous instances, the addition of unnecessary FAR and non-FAR clauses has hindered the full realization of these reforms. These additional requirements often create barriers for commercial companies looking to enter the federal marketplace, particularly due to burdensome cost accounting practices and convoluted approaches to intellectual property rights.
Third, for lasting change to take place, it is paramount to establish a clear vision for the future, along with the commitment of the necessary resources and personnel. Transforming the FAR is a complex, cross-organizational challenge that warrants a collaborative approach. Contracting professionals must work in an environment that supports their initiatives.
The aftermath of FASA illustrated that simplification of rules does not equate to an easier acquisition process. In fact, at times, it led to increased complexity. The nuances of commercial buying require diverse skills and a culture distinct from traditional FAR implementations. It is crucial to recognize the human capital investment necessary for substantial changes. Sustainable transformation within such a vast and intricate organization as the federal government necessitates careful consideration of talent management and development, rather than reliance on assumption-based approaches or arbitrary staffing reductions.
There is an immense amount to consider within the FAR and associated agency regulations addressed by this executive order. Accomplishing this in 180 days is an ambitious task, but foundational work has already begun.
Despite the challenges, I am reminded that one of the early uses of artificial intelligence in government was to assist acquisition professionals in navigating complex procurement rules. This past experience should inspire renewed efforts to enhance the acquisition landscape. We must seize this opportunity to drive meaningful change.
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