Thornberry unveils potential punishments for DoD’s slow implementation of acquisition reforms

House Armed Services Ranking Member Mac Thornberry wants to punish DoD for taking too long with reforms.

After spearheading the passage of dozens of reforms to the defense acquisition system over the last five years, House Armed Services Committee Ranking Member Mac Thornberry (R-Texas) is proposing some measures to speed up the Defense Department’s implementation of those changes.

In a draft bill, which may be folded into the committee’s version of the 2020 defense authorization legislation, Thornberry is proposing a handful of measures to quicken DoD’s execution of its new powers and hasten efficiencies mandated by Congress in previous laws.

“The Pentagon’s record of implementing important reforms is mixed. This year, Thornberry’s bill is focused on compelling DoD to implement those reforms Congress has already passed into law,” a factsheet from Thornberry’s office states.

One of the more dramatic provisions in the bill prods DoD into reforming its fourth estate — the agencies that do not fall under military services. The 2019 defense authorization act mandated the Pentagon come up with a plan to reduce the fourth estate by 25%. DoD’s report to Congress was late and Thornberry felt it was inadequate and failed to identify mandatory savings.

Thornberry’s bill would limit funding for DoD’s chief management officer under subsequent reports that are submitted.

Another provision in the bill would restrict funding of the Defense Acquisition Workforce Development Fund until DoD comes up with a more solidified intellectual property policy. In 2017, Congress asked DoD to establish a policy for procuring intellectual property and to cultivate experts in the field, but it still has not done so.

Another push from Thornberry’s legislation includes getting DoD to develop a policy for defense business systems. Three years ago, Congress asked DoD to develop guidance for planning and control of investments for defense business systems, an area the Pentagon spends about $9 billion on, but continues to draw criticism from the Government Accountability Office.

Thornberry’s bill requires DoD to submit a report to Congress with an updated guidance and implementation plan and restricts funding for the responsible offices if the report is late.

The ranking member warned last month that he would consider withholding funds from DoD if it didn’t step up its game on implementing congressional mandates.

”There are some basic constitutional principles here,” Thornberry said. “If the law says you should do it; you should do it. We have tools, fencing money, and a whole variety of things that we can look at doing if a department is not implementing the law.”

To DoD’s credit, it asked Congress to slow down on reforms so it could catch up.

“There’s some fascinating and interesting tools that we’re using and we are going to use and look forward to using, so thank you for those,” Navy Secretary Richard Spencer told Congress last year. “I would ask for a stabilization period so that we can digest what we have and have the ability to come back to you if we need more, but right now the knife drawer looks full.”

But DoD’s slowness has an effect on more than just Congress and the Pentagon.

“The process for updating and refining the acquisition regulation to keep pace with Congress has slowed to a glacial pace,” Scott Freling, a partner at Covington & Burling LLP told Federal News Network. “That causes quite a bit of consternation for contractors we work with where there’s changes that Congress has made to the procurement rules that aren’t yet reflected in the Federal Acquisition Regulation (FAR) or in the Defense FAR supplement. That uncertainty has been a source of concern by many clients where they are left in a state of wondering where they can avail themselves of the new rules or whether they have to wait until the FAR Council acts.”

It becomes even more of a concern when regulations are put on companies and they aren’t sure whether they need to comply now or after the rule is put into effect.

As an example, the Professional Services Council sent a letter in November to the assistant defense secretary for acquisition asking DoD to issue overdue regulations on the appropriate use of lowest-price technically acceptable criteria for DoD services contracts. The rules would implement a legislative provision Congress enacted three years ago, in the 2016 NDAA.

The Government Accountability Office also scolded DoD for its snail pace.

The House Armed Services Committee took note of the issue in its 2019 defense authorization committee report too.

These types of delays often do not allow “the acquisition and contracting communities within and outside the government” to “take full advantage of recent reforms and improvements to acquisition and contracting procedures,” the report stated.

New reforms

Thornberry did provide some new reforms that he says are aimed at helping small and innovative businesses work with DoD.

In a separate bill, Thornberry revamps the Small Business Innovation Research (SBIR) Program, which offers research grants to small businesses to speed the development of their products. Companies with more than 50% venture capital ownership are ineligible for the grants, however.

Thornberry’s legislation creates a modified SBIR that gives DoD a waiver to give grants to companies with high venture capital ownership. The bill states DoD can only give 15% of its SBIR funds to those types of companies.

Thornberry and others feel that DoD needs to capitalize on small, innovative businesses to stay ahead of near-peer competitors like China and Russia.

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