The sheer number of laws, regulations, and policies that apply to the defense acquisition process is staggering. The Federal Acquisition Regulation (FAR), which governs how the federal government buys goods and services, is a 2,000-page document. On top of that is the 1,500-page Defense Federal Acquisition Regulation Supplement (DFARS), which applies specifically to purchases by the Department of Defense (DoD). In addition to all those regulations are federal statutes and DoD internal policies that govern the acquisition process. For contracting officers, that means determining the applicability of hundreds of regulations, in addition to hundreds of laws and policies, to make a purchase.
Many of these laws, regulations, and policies are outdated, but no one has taken the time to remove or update them. According to a 2017 analysis by Deloitte, over two-thirds of all federal regulations on the books have never been updated since they were created. While each outdated regulation alone may not be a significant problem, in the aggregate those regulations can pose an enormous administrative burden. Many in the defense acquisition workforce have argued that assessing and complying with the large number of regulations slows down the acquisition process, wasting time, money, and energy that could be better spent elsewhere. Additionally, the complexity and cost of compliance creates a barrier to entry for small businesses that may wish to engage in business with DoD but cannot afford the lawyers and compliance officers necessary for the job.
Repealing or amending outdated provisions that bog down the acquisition process is long overdue. The Section 809 Panel, a congressionally mandated panel to streamline and improve the defense acquisition process, is currently taking on the task of identifying and eliminating these outdated provisions. One bold approach that the panel is taking for this endeavor is its "50 Worst!” campaign, which solicits public input on the 50 worst laws, regulations, and policies that impede the acquisition process. The panel has already made some recommendations to begin this effort earlier this year.
Take for instance the FAR clause that encourages contractor policies to ban texting while driving, which must be included in every solicitation, contract, and subcontract over the micro-purchase threshold. This FAR clause resulted from an executive order that was issued in 2009 when the iPhone was only two years old and just a handful of states banned texting while driving. Today, 47 States, D.C., Puerto Rico, Guam, and the U.S. Virgin Islands have these bans, and DoD has prohibited the use of cell phones while driving on all military installations, making this FAR clause unnecessary. This example is just one of the many outdated regulations that are duplicative of existing law or policy, add paperwork, and need to be removed.
The panel has also made recommendations to amend outdated laws, which Congress recently adopted, and the president signed into law in the FY 2018 National Defense Authorization Act (NDAA). One of the panel recommendations adopted by Congress was to amend a 2005 law that sought to increase circulation of the dollar coin. Among the requirements in that law was that business operations conducted by a federal agency that involve coins or currency must be capable of accepting and dispensing dollar coins. In practice, however, the dollar coin has not been widely circulated even with this law in place, and the cost of this requirement has exceeded the benefit. In the FY 2018 NDAA, Congress creates an exception to the dollar coin requirement for business operations conducted under a contract with a federal agency.
Another one of the panel’s adopted recommendations was to amend a law that establishes 20 years as the maximum length for DoD fuel storage contracts. The 20-year limit was originally enacted in 1956, and since then, fuel storage technology has dramatically improved. Modern fuel storage technology is now capable of operating for up to 30 years without interruption. However, because of the 20‐year contract limit, contractors were expected to dismantle fuel storage infrastructure when their contracts terminated, potentially disrupting fuel services and wasting government resources. Congress addresses this concern in the FY 2018 NDAA by extending the maximum length for fuel storage contracts to 30 years to reflect technological advances.
In addition to its activities to review the defense acquisition process at large, the panel is aiming for simple changes that could, in the aggregate, have a significant benefit by allowing contractors and contracting officers to focus on the mission first, instead of navigating through outdated laws, regulations, and policies. The dollar coin requirement and the fuel storage contract limit are examples of laws that clearly needed to be updated and were recognized by Congress as such. The panel is seeking similar examples through its "50 Worst!” campaign. Public input and support is vital for this endeavor. Without input from those in the acquisition workforce who deal with the process every day, the panel may not be able to capture all of the challenges involved.
Deidre Lee is a former administrator for the Office of Federal Procurement Policy, director of defense procurement and acquisition policy, deputy associate administrator for procurement for NASA and vice president of operations at Fluor Government Group.
Hannah Oh is a research assistant at the Section 809 Panel and former deputy to the CEO of Jamestown Associates.