The president’s procurement order offers a real opportunity. Let’s not squander it

Less than a month ago, I wrote in Nextgov/FCW about serious concerns I, and many others, have with a number of the Trump Administration’s early procurement-related actions. These include refusing to pay for contracted work already duly performed; the dramatic increase in the government’s use of “termination for convenience” clauses; questions about the appropriateness of GSA mandating contract adjustments mid-performance; arbitrary staffing cuts; and more.

As I said then: buckle up, there’s more to come.

Indeed, on April 15, the president signed what could be a very impactful, procurement-centered executive order. And this one has the potential to move the needle forward in important and positive ways.

To start, let’s set aside some of the rhetoric surrounding the order and focus instead on what it actually requires. There are two key parts. The first is establishing a requirement for agencies to procure commercial, rather than custom, software. The second is a major streamlining of the Federal Acquisition Regulation, the 2000+ page tome that governs most all federal procurement.

While not entirely new, both goals are well worth supporting and pursuing. Done right, the order offers the potential for real transformation. So, what will success require?

First, it is essential to pay attention to and learn from the lessons of the past. For example, the development of the Federal Acquisition Streamlining Act, the most significant reform effort in recent history, was one of the most collaborative policy initiatives I have ever been involved in. Great care was taken to involve all relevant stakeholders to engage in open dialogue among agency, congressional, industry and third-party experts. Further, it was not only remarkably collaborative, it was also entirely non-partisan. Only through that kind of open and collaborative process was it possible to build the requisite trust so critical to success. Beyond the importance of collaboration in any major change effort, the reality of our contemporary politics makes it all the more critical. To be clear, the politicization of acquisition really began more than twenty years ago and since that time, real or perceived procurement errors or “scandals” have all too often become proxies for broader policy battles. That cannot continue if we are serious about empowering the acquisition workforce and transforming the culture. That workforce needs to believe their leaders have faith in them, will support them and see them as part of the solution rather than the source of the problem. Without that, real change will prove elusive.

Second, the new EO is not the first time a preference for commercial solutions has been established. This was a core component of FASA — and the evolution of FAR Part 12, which governs commercial items — and has been the focus of most every reform effort since.

Here, too, the FASA experience and what followed offers important insight. Most significantly, there is a big difference between the commercial buying authorities as they were originally envisioned and the FAR Part 12 of today. The original FAR Part 12 recognized that the core tenets of public procurement could be achieved in a system that was not burdened by traditional government-specific contracting requirements that were principally the product of the days when the government — particularly the Pentagon — was a monopsony buyer.

Unfortunately, since the passage of FASA, some 150 contract clauses have been layered on to the original FAR Part 12, many of which have no statutory basis. That would be a great place to start the FAR review.

It is also notable that when opportunities have emerged in the past to take a “clean sheet” approach to federal acquisition, especially the Federal Aviation Administration’s Blue-Ribbon Panel and the evolution of Other Transactions Authorities, the end result often looked very much like Part 12 — as Part 12 was originally envisioned.  And in both of those cases, achieving the full potential of the reforms has been inhibited by a tendency to add unnecessary FAR clauses — or “non-FAR” clauses that have much the same effect — and which serve as primary obstacles for commercial companies entering the federal market. This is particularly true of a continued reliance on government-unique cost accounting procedures that bear limited resemblance to the accounting standards that govern the rest of the economy and of often arcane, zero-sum approaches to intellectual property and technical data rights.

Third, the real inculcation can’t happen without a clear future vision and the commitment of the human and other resources that will be needed. FAR transformation is a multi-functional, cross organization challenge and must be approached as such. Contracting professionals do not operate in a vacuum.

FASA, especially its aftermath, taught us that simplifying the rules was not the same thing as making acquisition “easier.” Indeed, in some ways it made it more complex. Commercial buying itself requires different and varied skills and culture than traditional FAR models. We almost certainly underestimated the human capital component of what it would take to affect the kind of major changes we envisioned.  This remains an unavoidable reality. Driving sustainable change, especially in the world’s largest and most complex organization is not merely a matter of simplifying rules and capitalizing on technology. For change like this to take hold, thoughtful, data-supported talent management and development, rather than arbitrary assumptions or personnel cuts, must hold sway.

There’s a lot to unpack in the FAR and all of the agency supplements covered by the order. And doing so in 180 days is a mammoth undertaking. But much of the crucial groundwork has already been laid.

And complicated as it may be, every time I wonder if yet another such effort is worth it, I remind myself that one of the government’s first uses of artificial intelligence was to help acquisition professionals decipher the acquisition rules. That’s crazy. Now, we have another chance to change the game. Let’s not squander it.