IT acquisition reform bill gets consensus, inches closer to passage

The Federal IT Acquisition Reform Act is closer than ever to becoming law as key Senate and House lawmakers have reached agreement on the bill.

But for FITARA to get to the President for his signature, Senate and House armed services committees still must sign off. The likely way FITARA will become law is as an attachment to the fiscal 2015 National Defense Authorization bill.

Jay Maroney, counsel to the majority of the Senate Armed Services Committee, said the fact that the Senate Homeland Security and Governmental Affairs and House Oversight and Government Reform Committee members reached an agreement is a big deal for the bill to move forward.

“We take the consensus that the committees of jurisdiction have gone through and then we put it through our process of figuring out what we are willing to and able to support, since it’s our bill,” Maroney said Tuesday during a panel of congressional staff members at the 33rd annual Government Contract Management Symposium sponsored by the National Contract Management Association in Washington. “It sounds awful to say it that way, but it’s kind of the reality, not just with FITARA, but a lot of different issues that we deal with. We are a bill that traditionally — for 51 years — has passed, we are a coo for all sorts of different legislative initiatives that we get. At the end of the day, the chairman and ranking member have to accept that into the conference agreement for it to move forward.”

Maroney and others were speaking on their own and not for the committee or members they represent.

He said the authoring committees have done a good job communicating and accepting suggestions from other lawmakers, from the Defense Department and from civilian agencies.

Maroney said he couldn’t offer too many details about on whether the SASC and HASC will keep FITARA in the NDAA because the committees were in pre-conference mode. He said it was unclear whether the Defense authorization bill would receive a vote by the Senate during the lame duck session so the negotiations over the differences started early.

Crown jewel is CIO authorities

At the same time, several observers say the fact that FITARA has the support of Sens. Tom Carper (D-Del.) and Tom Coburn (R-Okla.), the chairman and ranking member of the Homeland Security and Governmental Affairs Committee, respectively, and Rep. Darrell Issa (R-Calif.), the chairman of the Oversight and Government Reform Committee, is important. Observers also say Issa wants a “crowning achievement” before he gives up his chairmanship, which he has to do under the rules of the House after this session ends.

If the armed services committees decide to keep FITARA in the NDAA, it’s unclear how much of it would get through.

“There were some great ideas that fell by the way side, but that’s the way it goes when you are involved in negotiations, there is both give and take,” said Rich Beutel, a senior adviser to the House Oversight and Government Reform Committee. “A streamlined package is what we have now and it’s a consensus package from two of the main oversight groups in Congress that really hones the pencil to a very sharp point, we think. The crown jewel, as far as I’m concerned, is the CIO authorities, to give CIOs actual legislative authority and necessary ability to do a capable job. This is a deficiency that’s been identified all the way back four years ago in what was called the 25-point plan that was put together by OMB under Vivek Kundra, who was the former federal CIO. There’s also enhanced oversight provisions as well. We now have a very broad and, I think, a fine honed consensus package.”

He said his committee has been working on a federal IT reform bill for more than two years. The House passed the bill twice, including most recently earlier this year as part of the Defense Authorization bill.

The Senate Homeland Security and Governmental Affairs Committee passed a standalone FITARA bill earlier this summer.

Troy Cribb, the chief counsel for the majority side of the Homeland Security and Governmental Affairs Committee, said some of the concerns that came up during the markup are being addressed.

“It went through our committee fairly easily. Sen. [Carl] Levin did raise some concerns about how the provisions would be applied to the Department of Defense. We understand that. DoD is unlike a lot of other agencies. They are doing a lot unique things. They are a lot bigger,” she said. “What my boss, Sen. Carper, said at the markup was we are committed to work with you to find resolutions so everyone hits a sweet spot, and we can address all the civilian agencies and DoD and do it in a way that it’s a natural fit for all of them.”

Cribb said FITARA would provide some legislative backing to the Office of Management and Budget initiatives such as data center consolidation, PortfolioStat and TechStat reviews. She said the committee doesn’t want them to fade out going forward.

Cribb and Beutel didn’t offer more specific details about the changes to FITARA, partly because the negotiations aren’t final until the bill gets to a vote. But as far as Levin’s concerns, the DoD authorization bill does include a separate provision to address DoD CIO authorities.

The IT Alliance for Public Sector (ITAP) wrote in an October blog that the provision would give the DoD CIO more authority and responsibility specifically around performance management issues and make it an undersecretary position.

Cloud is new focus of House committee

Now that FITARA seems to be on a path toward becoming a law, the committee staff members say they expect 2015 to be busy when it comes to acquisition legislation and reforms.

The House and Senate Armed Services Committees will continue their work around DoD acquisition reforms, preparing for 2016. Maroney said there is a handshake deal among members to make 2016 a big acquisition year looking at broad reforms. He said the Government Accountability Office will issue a report in 2015 as well as reviewing the acquisition system processes and what’s working and what isn’t.

On the House side, Beutel said there are several other IT acquisition areas to which the committee will turn its attention.

“We will be looking at basically the problems, impediments and hindrances of the government’s adoption of cloud computing. We have a project underway to look at what’s going on with the cloud-first strategy, which was articulated four years ago and why the government isn’t adopting and embracing this transformative technology,” he said. “We are looking at issues about the model for consumption based pricing for cloud, which is very obsolete now in the Federal Acquisition Regulations. We will be looking at the qualification process for cloud service providers from a security and law enforcement perspective. We are going to be looking at the impediments in the existing appropriations process to effect broader cloud transitions. We are hip deep in cloud policy right now, and we are looking to put something together going forward in the next six months to a year with broad engagement of stakeholder groups.”

Beutel said he’d like to see more focus on simplifying certain aspects of acquisition, specifically around IT and services. He said maybe there needs to be a separate FAR for services, since they now make up about 67 percent of all government purchases.

On the Senate side, Cribb said the Homeland Security and Governmental Affairs Committee had a quiet year in terms of legislation and spent more time on oversight in 2014.

Defense bill includes reverse auction prohibition

She said 2015 will mean two things for the committee — a lot of change, as the ranking member, Coburn, is retiring, and more focus on legislation. “There has been a lot of interest in our committee on strategic sourcing and trying to further that process along. I think the general feeling is there is a lot of promise there, but the effort isn’t quite where everyone would want it to be,” she said. “There always is a lot of interest in the different buckets of issues of making sure we have the right contractors in place. The other bucket of interest somewhat related to this is the whole issue of past performance and how do you get better past performance reviews.”

Cribb said lawmakers don’t understand why agencies don’t have better and more information on vendors, just like in their personal lives when there are reviews and comments on products or services that are widely available and easily found. Another big issue next year will be improving the acquisition workforce. Cribb said it’s hard to legislate improvements without the power of the purse, but the committee will use its bully pulpit to get the word out of the need to better support the training of acquisition workers.

Another item to watch out for is reverse auctions. There is a provision in the House NDAA that would prohibit the use of reverse auctions for any procurement where small businesses can compete or for circumstances where only one bid is received.

All members of the panel supported the use of reverse auctions when appropriate, more specifically for commodity purchases. But in light of the recent inspector general report from VA, there are a lot of concerns about reverse auctions.

Cribb said the Office of Federal Procurement Policy needs to issue guidance to agencies for when to use reverse auctions so there is clarity across the government.

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