Cluster of Bills Seeks Acquisition Reform
No less than five are floating around the Hill, aimed to streamline and commercialize the procurement process
The House likely will combine five procurement bills into one fast-paced reform bill by early July, though a Senate decision is not expected until this fall.
At the core of the new procurement effort is the Clinger-Spence bill (H.R. 1670), which clears away a tangled undergrowth of regulations and rules long opposed by industry.
The Clinger-Spence bill is "very fundamental, underlying reform," said Bert Concklin, of the Vienna, Va.-based Professional Services Council. His group favors the Clinger-Spence bill because it fosters early discussions between government and industry, eliminates a variety of burdensome certification processes, removes post-award audits of company costs, allows commercial-style contracts for services as well as products, and establishes a single, governmentwide bid-protest system, Concklin said.
Clinger-Spence also proposes to modify DoD procurement integrity provisions to put defense employees under the same "revolving door" provisions that govern other federal workers; eliminates extra charges for foreign military sales, and encourages smaller procurements with more reliance on commercial technologies. Military sales "are not just things that go boom," said Roger Smith, manager of government business at the American Electronics Association. They include computers and technologies required to build things such as weapons systems.
Ella Schiralli, staff director of government relations for the Electronic Industries Association said EIA also endorses the principals of the Clinger-Spence bill, but said two areas in particular need to be clarified. These include how bid protests are resolved and the change from existing language that says competition for contracts shall be "full and open" to new language allowing "maximum practicable" competition.
The bid protest language has been "a little bit contentious," said Smith.
It is not just a matter of different industries disagreeing on what is best. Different companies in the same industry can't agree. Much of the debate centers on what standard of review is appropriate and whether agency records should be allowed.
If the government moves to a true commercial process for acquisition, then a protest vehicle probably is not needed, Smith said. After all, there is none in the private sector. On the other hand, if the government does not move to a commercial process, industry will need a protest vehicle, he said.
Narrowing the standard for contract competition to "maximum practicable" also is causing waves because of fears that it will cut out many small businesses, particularly in the information technology arena. EIA understands the need for streamlining, but also wants clarity on the Congressional intent, Schiralli said.
Markup on the Clinger-Spence bill has been delayed until June 21, and it may be offered as an amendment to the Department of Defense authorization bill (H.R. 1530 and S. 727). In some form or another the Clinger-Spence bill will pass, Congressional watchers predict.
A DoD bill also may pass, but not without some attachments. For example, the Roth-Kasich bill (H.R. 1368 and S. 646) features a provision to set up a single DoD procurement agency that is not being well-received. "The troublesome features [of this bill] may end up killing the good parts," said LeRoy Haugh, of the Aerospace Industries Association.
One possible solution is to incorporate sections of the Roth-Kasich bill into the DoD bill. Provisions to eliminate 60/40 contract costs between the public and private sector already are included. Eliminating this would allow the maintenance to be fully contracted out and open greater opportunities for the private sector. "It's ridiculous to have a huge government infrastructure, when it could be done more efficiently by the private sector," said Jody Olmer of the U.S. Chamber of Commerce.
Parts of administration proposals (H.R 1388 and S. 669) also may be included in the DoD authorization package.
Waiting in the wings is a much-hyped bill yet to be introduced by Sen. William Cohen, R-Maine. The bill would create a single chief information officer for the entire government; emphasize up-front planning and reengineering before a procurement is made; encourage smaller procurements; and restructure the bid protest procedure similar to that seen in H.R. 1670.
The bill contains some provisions that industry likes, but it has been delayed repeatedly. Most industry experts contacted for this story wondered what kind of impact it would have with such a late introduction, particularly since many of its provisions are or may be included in other bills.
WT Staff Writer Neil Munro contributed to this report.
Pending Procurement Bills
Because of the their late introduction, industry ponders this legislation's impact
Clinger-Spence (H.R. 1670):
The most contentious points: 1) changes competition from "full and open" to "maximum practicable;" and 2) revises the bid protest system with disputes being resolved by an independent Board of Contract Appeals. Also eliminates some contractor certification requirements and simplifies procedures to purchase commercial products and services.
Status: Markup scheduled for June 21; may be offered as an amendment to the DoD bill; most likely will pass through one channel or the other.
DoD Authorization (H.R. 1530 & S. 727)
Specific to DoD; eliminates extra charges on some export sales of defense equipment; ends 60/40 depot maintenance workload between public and private sectors to allow full competition.
Status: Should pass with some modification, also may pick up portions of other bills.
Administration (H.R. 1388 & S. 669)
Does a lot of housecleaning; eliminates extra charges on government to government sales of U.S. defense equipment; proposes to delegate contracting authority to the lowest level; allows federal agencies to retain copyrights or patents on computer software developed in-house under a cooperative research and development agreement.
Status: Most of it is likely to pass as amendments to the DoD bill.
Roth-Kasich (H.R. 1368 & S. 646)
Very different from other bills in that it addresses the front end of the acquisition process; mandates termination of contracts that do not meet goals; ends 60/40 depot maintenance workload between public and private sectors to allow full private contracts; proposes single DoD acquisition agency.
Status: Variation of bills offered by Roth in previous years, small sections, such as the depot maintenance provisions, may pass as part of the DoD bill. The rest most likely will fail.
Establishes chief CIO position for entire government; emphasizes up-front planning and reengineering before automating processes; repeals the Brooks Act; sets oversight thresholds to encourage small contracts and discourage large ones; and revises the bid protest system and creates an independent Board of Contract Appeals.
Status: Not yet introduced and repeated delays appear to have hurt its credibility. At this point, analysts wonder what impact such a late-arriving bill will have. Many provisions are being or will be picked up in other pieces of legislation.