Congress and Acquisition Reform Charting a course in uncertain waters April 30, 2008 Jon Etherton Etherton and Associates, Inc. What is acquisition reform?.
Congress and Acquisition ReformCharting a course in uncertain watersApril 30, 2008 Jon EthertonEtherton and Associates, Inc.
What is acquisition reform?
re·form 1. n., the improvement or amendment of what is wrong, corrupt, unsatisfactory, etc.: social reform; 2. an instance of this. 3. the amendment of conduct,belief, etc. 4. v. (used with object), to change to a better state, form, etc.; improve by alteration, substitution, abolition, etc. 5. to cause (a person) to abandon wrong or evil ways of life or conduct. 6. to put an end to (abuses, disorders, etc.).
and large service contracts.
Main Areas in National Defense Authorization Act for FY2008
Major Systems Acquisition- Contract Services- General acquisition policy- Transparency
Major Defense Acquisition Programs (MDAPs)
Section 815 – Procurement of Commercial Items
Amends 10 U.S.C. 2379 regarding acquisition of commercial items as major systems.
For major systems, requires a contractor to provide sufficient information for price analysis and authorizes contractor officer to request cost data if information is insufficient to establish price reasonableness.
Adds a similar requirement for commercial subsystems, components or spare parts of major systems that are purchased by DoD under a prime contract and that are not off-the-shelf commercial items.
Section 805 – Procurement of Commercial Services
“Of a type” commercial services may be treated as commercial for purposes of TINA only if the contractor officer has determined in writing that the offeror has submitted sufficient information to determine price reasonableness through price analysis. Contracting officer may request submission of cost data if other information is insufficient
Commercial (FAR part 12) time and materials contract s may only be used to acquire:
services in support of a commercial item,
emergency repair services, and
other commercial services only to the extent that the head of the agency approves a written determination by the contracting officer that the services to be acquired are commonly sold under T&M contracts to the general public and the use of a T&M contract is in the best interest of the government.
Section 806 – Specification of Amounts Requested for Procurement of Contract Services
Starting with FY10 budget submission, DoD required to specify by account (other than RDT&E and MilCon) the amounts for contract services by component, activity or installation.
Section 807 – Inventories and Reviews of Contracts for Services
Starting in FY08, SecDef required to submit an annual inventory of activities performed during the prior fiscal year under services contracts including:
the functions performed
the contracting organization in DoD
the number of contractor FTE’s
a determination whether the contract is a personal services contract
Service Secretary or head of agency is required to review his or her respective portion to ensure:
Personal services contracts are being performed in accordance with applicable requirements
Activities do not include inherently governmental functions (FAR 7.503(c))
Activities do not include functions closely associated with inherently governmental functions (FAR 7.503(d)) to the maximum extent practicable.
Section 843 – Enhanced Competition for Task or Delivery Order Contracts
Prohibition on single source task or delivery order contracts above $100 million unless head of agency determines in writing that certain detailed conditions are met.
Extends competition requirements for individual task or delivery order awards in section 803 of the FY2002 NDAA to all agencies.
Requires detailed solicitation requirements for individual task or delivery order awards above $5 million and an opportunity for post-award debriefing.
Authorizes a GAO protest of the award of an individual task or delivery order award above $10 million that is made 120 days after January 28, 2008 and for three years thereafter.
Section 852 – Acquisition Workforce Development Fund
Establishes a DoD Acquisition workforce development fund for recruiting, training, and retention of DoD personnel from a percentage of the funds for contract services in each budget account.
The percentages are:
0.5% - FY08
1.0% - FY09
1.5% - FY10
2.0% - FY11 and thereafter
SecDef has authority to credit less, but minimum amounts are specified.
Section 844 – Public Disclosure of Justification and Approval Documents
Requires Federal agencies to make publicly available on the agency website and through a government-wide website within 14 days after contract award J&A’s for the use of other than competitive procedures.
Section 845 – Disclosure of Government Audit Findings
Requires each agency inspector general to submit to Congress as part of its semiannual audit report an annex on final, completed contract audit reports issued to the contracting activity containing unsupported, questioned or disallowed costs in excess of $10 million or other findings the agency IG determines to be significant.
Requires each agency head to provide within 14 days a full and unredacted copy of any audit described in the report to various congressional committees upon written request. The agency would be required to identify any information in the audit exempt from public disclosure under 5 U.S.C. 552(b).
Current Acquisition Policy Issues
S. 680/HR 1362 Conference
Acquisition workforce revitalization (title I)
Undefinitized contract actions (sec. 301)
Transparency and Contractor responsibility
HAC-D – Acquisition Policy/Contracting
Implementation of the section 804 report
HASC – Two thrusts
Clarification of inherently governmental positions
SASC – Implementation of last year’s bill provisions
DoD Legislative Packages
Obstacles to a Congressional reform vision
House and Senate Armed Services Committees
Senate and House Government Reform
House and Senate JudiciaryCommittees
House Appropriations Committee
Congress versus Executive Branch
Different messages from different agencies on reform
Problems driven by issues larger than the Federal
acquisition policy reach
Funding process and constraints
Industry and technology trends
No blueprint in sight
Congress will remain very active in legislating
elements of process reform.
A coherent vision of reform with reinforcing parts is unlikely
to emerge until well into next year if ever.
Some type of blueprint is needed that encompasses an
understanding of the limiting conditions on any reform
Rationalization of the legislation will be critical at some