Two Gavels and a Presidential Pen: Effects on the Federal Marketplace

Published: September 03, 2019

CONGRESSDEFENSEVA

Congress typically isn't directly involved in a specific contract, but its direct and indirect actions can change how its procured.

Congressional legislation directly affects how the government and industry do business, but so do lawmakers’ questions about programs’ operations. As lawmakers hear from officials, the feedback can change the path of a program or practice.

FY 2020 NDAA

The House passed its version of the FY 2020 National Defense Authorization Act (H.R. 2500) on July 27, 2019. The bill authorizes $726.9 billion for defense programs, even though it decreases procurement funds by 4%. Still it affects contracting on a different level by addressing the telecommunications and video surveillance supply chain, DOD’s mentor-protégé program, small business payments, and post-award debriefings.

The Senate Armed Services Committee is considering its draft version of the bill. The legislation looks at fixed-price contracts, mitigating risks to DOD’s industrial supply chain, and seeks for ways to improve, streamline, and make DOD services contracting more efficient. Once passed with a dollar figure, the House and Senate members will work out the differences in each bill in a conference committee before final passage.

Implementing Law

Defense acquisition officials are circulating a draft amendment to the Defense Federal Acquisition Regulation Supplement (DFARS) regarding debriefings following contract awards from the FY 2018 NDAA. With the trend toward task orders via agency-specific IDIQs and government-wide acquisition contracts (GWACs), companies will have more opportunity to hear from the agency about the process and award. Similar to the FY 2020 NDAA, a provision in the FY 2018 NDAA gives contractors greater rights to a debriefing for contracts and tasks and delivery orders that exceed $10 million. The FY 2020 NDAA cuts the ceiling to as low as $5 million.

In addition, Defense acquisition officials are trying to finalize a rule for the DFARS regarding a provision in the FY 2017 NDAA regarding a preference for fixed-priced contracts and the requirement to review and receive approval for certain contract types at specified dollar thresholds.

Accompanying Reports

While not codified, congressional committees give guidance for departments in committee reports accompanying the final bills. For instance, the House Armed Services Committee has encouraged interaction between DOD and the Department of Homeland Security on cybersecurity. For example, the FY 2019 NDAA pulled DOD and DHS together to enhance cybersecurity and resiliency of critical infrastructure. The law ends the pilot program in 2022; however, continued support in the House’s FY 2020 NDAA may continue to keep the two departments closer together as protectors of the nation rather than remaining divided as defense and civilian departments.

 The House Armed Services Committee notes in the report accompanying the FY 2019 NDAA that the Memorandum of Understanding between DOD and DHS is central to their complementary cybersecurity roles and missions. Indeed, DOD’s “‘defense forward’ posture can inform and guide the Department of Homeland Security efforts to anticipate adversary action and understand potential risks to critical infrastructure.”

Committee Oversight

Beyond legislation, lawmakers hold hearings to hear from department officials about operations, and the answers can open gates to new approaches and support.

The Veterans Affairs Department has tried to move from its legacy systems to a modernized system of operations, including the electronic health records system. Congressional overseers have not been pleased with the efforts. Rep. Susie Lee (D-Nevada), the chairwoman of the House Veterans’ Affairs Subcommittee on Technology Modernization, told VA officials bluntly that the failure of setting up the electronic records has been a lack of leadership and confusion about who’s in charge.

VA officials aren’t going to ignore the systems errors, particularly when overseers bring up the issue. In similar situations, a project can get more attention. Officials may need more support services and IT help to address the issue before Congress takes further action.

Furthermore, reports to Congress, from the likes of the Congressional Research Service and the Government Accountability Office, can give insights on a range of issues, such as the growing topic of Other Transaction Authority (OTAs). Legislators have heard from CRS about the benefits and the weaknesses of OTAs. CRS provided options to consider, including the expanding authority to use OTAs and also establishing a center of excellence to manage and execute them.

Capitol Hill is typically not directly involved in specific contracts, but Congress’s actions—legislative or another approach—can change the emphasis to procurement.