Based on the pace and dimensions of change, it seems that federal procurement practices and procedures are in constant need of updates and improvements. In times of crisis, two competing dynamics come into play.

On the one hand, crises generate attention to problems that can lead to lasting positive changes in acquisition. Cost overruns in the 1960s led to David Packard’s concise directive on defense acquisition. Victory in World War II was in part due to American industry’s ability to shift resources to war efforts.

On the other hand, crises can expand bureaucracies and slow procurement actions. Throughout American history, crises have led to the creation of oversight bodies whose functions were often overlapping. 

How are those competing dynamics playing out today? The COVID-19 crisis is in its sixth month, and there are signs of hopeful changes in Federal acquisition at the program level, the agency level, and government wide. In addition, there are near term opportunities for Congress to enact changes with substantial benefits for government programs and procurement practices. Let’s look at a number of examples. 

Teleworking
Until mid-March, many federal agencies were reducing or limiting teleworking for federal civilian workers. For contractors, many contracts were silent on the issue. Under the theory that actions not explicitly permitted are banned, that silence was generally interpreted to mean teleworking was not authorized under the contract. 

This became a problem as COVID-19 meant that federal workers were sent to work from home but contractors were not eligible for the same actions. PSC urged the Office of Management and Budget (OMB) to encourage maximum teleworking by contractors. Comprehensive guidance was issued on March 20, 2020. The speedy response and quick action in a time of crisis is noteworthy, but that’s not the only example.

Mobile-Ready Workers
Many government contractors have been able to shift work from federal facilities to remote locations, but others still need to be on site. Parts cannot be repaired over the internet, and access to classified systems and data is often limited. Health and safety guidelines, coupled with closures of government facilities and state-wide activity restrictions, meant service contractors could not perform their missions.

That March 20 OMB memo also encouraged agencies to reimburse contractors for the cost of keeping skilled workers and key personnel on the payroll even if they could not access their worksites. A memo was not enough, however. PSC worked with federal agencies and Congress to produce needed authorities in law, leading to Section 3610 of the CARES Act, signed on March 27 of this year.

Laws rarely self-implement, and 3610 is no exception. Federal agency guidance has been insufficient and inconsistent. As a result, PSC has pursued better guidance from agencies while seeking clarifying statutory language from Congress.

The Speed of Bureaucracy
The federal government usually takes months to craft and issue guidance. Part of that time is spent in issuing a draft for public comment, allowing perhaps 60 days for such comments to be written and submitted, then taking additional months to adjudicate comments and revise guidance documents. Under COVID-19, time has been cut, but comments have still been sought and incorporated.

For example, on May 18 the Department of Defense (DoD) issued a draft of its guidance memorandum for reimbursement under Section 3610 (mentioned above).  It granted three days for industry comment, and PSC submitted a 12-page letter on May 22.  While this time is exceedingly short, past practices often provided no comment opportunities at all. At least for once, speed won out over bureaucracy.

Improved Communications
From the first week of government-wide COVID-19 retrenchments, it was apparent that existing government-industry communications mechanisms would not be timely or robust enough. Beginning with DoD on March 17, agencies began to conduct regular update phone calls with trade associations, including PSC. 

Nearly four months later, many of these calls still take place, with civilian agencies as well as DoD and the intelligence community.

These regular calls enable our member companies to raise issues through PSC, often anonymously, and agencies respond quickly when they can. We have had issues resolved in the time it takes for a single call. These means of communications and issue response, to us, warrant continuation in normal time as well as during crises.

Continuing Concerns
The above successes in process and issuances are still the exception. While agency officials can be responsive, program offices continue to move at their own pace. Ordinary inertia has joined with COVID-19 impacts to add delay to ongoing procurements, slowing the obligation of necessary funds.  The absence of publicly-available data on procurement administrative lead times (PALT) makes it harder to track. (Though Congress mandated such data by law years ago, agencies have failed to comply, leaving PSC and our member companies to rely on anecdotes.)

Federal agencies, program offices, and facilities have begun the process of returning workers to offices and other workspaces. These processes have been marked by unclear (and sometime unavailable) guidance, few clear standards, and a lack of attention to impacts on contractors. PSC has highlighted these shortfalls to agencies and suggested corrections that can be made, but what’s needed here is broad guidance that applies government-wide. Leaving return-to-work to the determination of individual programs or contracting officers will produce uncertainty and inefficiencies at best.

Congress Needs to Act

The legislative has several key roles to play. As PSC’s Alan Chvotkin notes in this issue’s Policy Spotlight, there are encouraging signs that Congress will mark up appropriations bills for FY21. PSC continues to urge enactment of those appropriations on time, in advance of the start of the new fiscal year on October 1, though election-year politics may mean the return of yet more rounds of debilitating continuing resolutions.

Congress could help even more by extending the live of FY20 funds which expire in just three months. COVID-19 delays mean that making funds available past the end of the fiscal year would be one of the wisest actions Congress could take this year. It should apply government-wide, requires no new funds, and would support agency work to counter COVID-19.  Perhaps most importantly for government programs and the contractors who support them, it would reduce the uncertainty that all agencies would face in the event FY21 begins under a Continuing Resolution.


Focus on Results

Perhaps the greatest potential benefit from acquisition policy responses to COVID-19 is the opportunity for the federal government to expand and strengthen its attention to procuring service contracts that produce results. Too many contracts focus in inputs, defining labor categories and specifying labor hours in tasks that would be better aimed at defining desired results and measuring outcomes.  

PSC members have reported instances of change on this. Agencies whose support workers are no longer at the next desk need improved ways of assigning tasks and seeing results. These steps should be expanded and strengthened.

Program requests for information (RFIs) and for proposals (RFPs) can change to define needed results and evaluate based on the ability of bidders to produce those results.  We know from experience that when agencies do this, contractors delivered better outcomes, often at less cost and faster.

In addition, agencies under COVID-19 have accelerated the adoption and promulgation of new technologies and the accompanying infrastructure.  The next edition of PSC’s Service Contractor will take a deeper look at some of those efforts and their positive results.

The Better Way Forward
The uncertainties of COVID-19 make it hard to see the near future, but if federal agencies can combine speed of bureaucracy with an expanded focus on results and outcomes, the benefits will extend far. At PSC, we will work to help in every way we can.