Commentary by William Greenwalt Visiting Fellow Marilyn Ware Center for Security Studies American Enterprise Institute
The defense acquisition system is like an 18th century wooden warship that has been out to sea for too long, accumulating such a surfeit of barnacles that it can barely float, let alone operate under full speed. It has been 20 years since the last time the acquisition system was overhauled in the Federal Acquisition Streamlining Act (FASA) of 1994 and since then an excess of new laws, regulations, policies, practices and procedures have been added to the system. It is time to again scrape off these barnacles, and with a nod to the Royal Navy in the 1780s, attach a new copper bottom to prevent future infestation. This is not just about efficiency and the ability to move faster — although that is important. Acquisition reform is necessary to maintain the Department of Defense’s (DoD’s) current technological and military supremacy over potential rivals in the coming decades or risk falling behind more nimble innovators. Real acquisition reform will be a multi-year effort to ultimately design a new system from the ground up, but the first step is that much of what is old should be reviewed for relevance. This should start with a zero-based assessment that determines the need for current acquisition laws, rules, regulations and practices. One way to begin this process would be to enact a legislative sunset of procurement laws to require Congress to review the existing system in its entirety rather than just add to it. Current laws should be given a mandated periodic review — ideally of five years while any new legislation that requires an action should pass with a sunset on them. Legislation that waives or provides exemptions to the current process should however remain permanent until the underlying reason for the exemption is eliminated.
Legislative sunsets should initially focus on the codified portions of Title 10, United States Code that address acquisition as well as the notes contained in the code that correspond to stand-alone provisions in various National Defense Authorization and Appropriations Acts. It is actually in these notes and stand- alone provisions that the vast majority of law should be considered to be allowed to lapse. Some of these provisions are legislative earmarks that have been enacted over the years that favor one portion or another of the industrial base. As the reasons or political support behind these legislative earmarks may no longer be valid, they should continually be re-evaluated at least every five years.
It is not just the law that needs to be reviewed. Acquisition regulations found in the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement to the FAR (DFARS), as well as in DoD’s internal acquisition policies and practices should also be reconsidered. DoD should be required to justify decisions as to why certain provisions have been kept. For those regulations or policies that have a statutory basis this review could be helpful in guiding Congress in its own review of current acquisition law.
To help scrape off the barnacles that have accumulated over the last 20 years and to re-evaluate those that were left unchanged in FASA, Congress and DoD need outside help. Because of the limited time that senior officials can spend on these issues and the fact that the bureaucracy may be too wedded to certain provisions, a trusted group of outside experts is required who can give the Pentagon and Congress specific advice on what to do next.
A new acquisition advisory panel similar to the Section 800 panel established in 1991 should be created to scrub existing laws, regulations, policies and practices. The Section 800 panel was most successful when it provided Congress with line-in, line- out changes to the law so new legislation could be easily written. This new panel should provide the same service but should be expanded to address regulations, policies and practices.
The experience of the Section 800 panel was one of the biggest success stories from the last major round of acquisition reform. Independent outside views and assistance provided the framework for the considerable amount of time allocated for congressional debate and staff work that determined which barnacles to remove and what new authorities to pursue. Members and staff from multiple committees in both the House and Senate devoted several years of effort to prepare the Federal Acquisition Streamlining Act of 1994 and the Clinger-Cohen Act of 1996. They relied on the strategic vision of the 1986 Packard Commission Report and the work of the independent Section 800 panel to identify issues and provide proposed specific legislative fixes to begin congressional discussions. While this may not be the same road map that is ultimately used to guide reform, it is one that worked in the past and should be considered by all who want to reinvent defense acquisition to meet 21st century threats.
William Greenwalt is a visiting fellow at the American Enterprise Institute’s Marilyn Ware Center for Security Studies. He previously served as a Deputy Under Secretary of Defense for Industrial Policy.