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Congress Passes Too Much Acquisition Legislation

bob7947

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In 1972, the Commission on Government Procurement wrote that Congress should limit its acquisition legislation to fundamental acquisition matters and let the Executive Branch implement Congress's policies through specific acquisition regulation.  If Congress had listened, it would be passing less acquisition legislation, doing a better jub of fulfilling its oversight responsibility of acquisition activities, and the FAR Councils would be performing their regulatory duty to implement Congress's acquisition policies.

Unfortunately, Congress didn't listen--to its own creation. Today, Congress doesn't deal with fundamental acquisition matters, it deals with acquisition minutiae and esoteric details--especially when it comes to the Department of Defense (DoD). Someone has an idea and before you know Congress is passing another section of acquisition legislation. No idea is too small for Congress to more on its acquisition legislation dump-truck.  For the most part, Congress meddles in the acquisition process through the House and Senate Armed Services Committees. These committees propose acquisition legislation in their annual National Defense Authorization Acts (NDAA) with much of it in Title VIII of the NDAAs. Title VIII is usually labeled: Acquisition Policy, Acquisition Management, and Related Matters.  You can run from it, you can stall it, but you cannot hide from it.

In the past 17 NDAAs, Congress has passed 725 sections of legislation in Title VIII of the NDAAs.  Another 166 sections of acquisition legislation are included in other Titles of the 17 NDAAs.  That's at least 891 sections of acquisition legislation in the past 17 NDAAs.  What is worse, Congress is picking up its legislative pace and has passed more sections of acquisition legislation in the past 3 years than ever before. 

If you have been a follower of Wifcon.com for the past 17 years, you would be familiar with the 17 NDAAs by viewing them here.  Take a look at the National Defense Authorization Act for Fiscal Year 2018 sections for Title VIII.  Do you see coherent acquisition policy?  No, you do not!  Its a lot of junk legislation patched onto a growing body of junk legislation that is called Title 10 of the U. S. Code. 

Don't think you are safe if you are in a civilian agency.  Remember, the NDAA is an annual event and during debate on the Senate or House NDAA versions, any stray piece of legislation may attach itself to the NDAA.  It's kind of like a tick or leech latching onto you.  Take another look at the sticky bomb idea on another of my blog entries.  If you throw an amendment at the NDAA during the debate process, it might stick to the NDAA and become law.  See if you can identify the source of TITLE XVII that is included in this year's NDAA.

I'm getting angry again just thinking about this so I better end here.  However, you should get angry too.  Your the ones who have to deal with it on a daily basis.  If you need some incentive to get angry, there are about 250 sections from the last 3 NDAAs waiting for the FAR Councils to deal with them.  

I've posted an article with tables to the Analysis Page with the same name as this blog entry.  You can probably see my anger growing with sarcasm as I progress towards the end of that article--see the part on zombie legislation.

Some of you are too young to remember the movie Network.  However, there is a part of the movie where the character Howard Beale decides he has had enough.  I looked at it again this morning. 



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Members of Congress see things that confuse or annoy them and want those things to go away. They can act in only two ways: pontificate and legislate. The two things go together. Otherwise, they are impotent. They do what they can do. That's the way the Constitution set things up. Government in the U.S. is not supposed to work well.

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Sometimes, industry lobbying groups propose legislation concerning their specific areas of interest, which is poorly conceived or drafted, without a full understanding of the bill's impact or ramifications.  The Congressional staffers often don't understand the subject matter, either.  When the DoD and/or civilian agencies' so called subject matter experts weigh in during coordination reviews of the legislation, it sometimes backfires on the industry originators.  

A couple of years ago, industry initiated legislation intended to limit the use of the "One Step, Turnkey Design-Build" method in 10 USC 2862.  However, after the DoD's engineering and construction agencies responded to the draft language, it ended up expanding the allowed use of One Step D-B for more types of projects beyond new construction, such as repair and renovation projects.

Recently, industry D-B lobbyists have been pushing again to limit the dollar limits of projects that could use the one-step method.  However, they are proposing to impose the limits under Title 41, which doesn't even authorize the use of the one-step D-B method.  By adding the limitation language under Title 41, it would effectively introduce its use under that Title!! When I asked one of the staff members of the industry coalition group proposing the legislation why it was drafted for application under Title 41, he said that the coalition had been working with congressional members and staff under one of the Civilian committees or subcommittees, rather than the Military side, where the authority for one step design-build is specifically authorized.  One or more agencies, such as the Coast Guard have been able to obtain specific authorization for One Step D-B under a Title or Titles other than Title 41 but it hasn't been mentioned under that general Title before.

In another instance, the NDAA for FY 2018 included language under Section 823, "Exemption from design-build selection procedures".  It amended section 2305a of Title 10 to exempt solicitations issued pursuant to an indefinite delivery/indefinite quantity contract from the statutory limitation on the number of offerors that may proceed to step two of the procurement selection process when that D-B process is used.  It was drafted by a House Committee staffer who used to work for one of the Military Services' engineering and construction agencies.   (Sorry about the Font change)

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