FITARA in context: Procurement reform since Clinger-Cohen
The Clinger-Cohen Act of 1996 is widely recognized as a watershed moment in federal IT procurement legislation, and several bills since then have shaped the system further. Where does the Federal IT Acquisition Reform Act, now under consideration in Congress, fit into the big picture?
Sen. William Cohen and Rep. William Clinger sponsored the Clinger-Cohen Act of 1996, one of the most consequential pieces of modern procurement reform.
The Federal IT Acquisition Reform Act could be a major turning point in the history of IT procurement reforms, but it's helpful to understand the context in which it comes. Congress has passed several procurement reform laws since the mid-1990s, each one of them building on the past.
"I believe—and not just because my name is on it—I really do believe this legislation is groundbreaking, and I think it has the potential to reshape how the federal government manages its IT from soup to nuts," Rep. Gerry Connolly (D-Va.), a vocal co-sponsor of FITARA, said on March 20. Minutes later, Rep. Darrell Issa (R-Calif.) led his Oversight and Government Reform Committee in putting its stamp of approval on FITARA.
Connolly said FITARA is "some of the most groundbreaking legislation in the last 20 years."
But can FITARA live up to Connolly's accolades?
Consider what came before: The Clinger-Cohen Act of 1996 created the CIO position and directed agencies to pay more attention to the results they could achieve through IT investments, during an era when the idea of making IT investments on a broad scale was relatively new. The Federal Acquisition Reform Act, which ultimately became part of Clinger-Cohen, increased the discretion of contracting officers in an effort to promote efficient competition. The FARA portion of the law also streamlined the federal IT procurement process. Clinger-Cohen emphasized rigor and structure in how agencies select and manage IT projects. In another reform, the Federal Acquisition Streamlining Act of 1994 established a preference for commercial products.
There were more major reforms in the early 2000s, including the Services Acquisition Reform Act. It stressed greater use of performance-based acquisition and set up the Chief Acquisition Officers Council. Other bills reorganized the General Services Administration and created a Contingency Contracting Corps to improve the process of making acquisitions in emergency circumstances.
Clinger-Cohen doubtlessly stands as the great patriarch of contemporary IT procurement reform. Is FITARA qualified to stand with it?
Procurement Reform at a Glance
Mouse over a bill name for more information.
- Federal Acquisition
Streamlining Act 1994
- Clinger-Cohen Act
- Services Acquisition
Reform Act 2003
- General Services Administration
Reorganization Act 2005
- Fiscal 2009 National Defense
Authorization Act 2009
- Federal Information Technology
Acquisition Reform Act 2013
"Rep. Issa's legislation has the potential to be a significant reform," said Mike Hettinger, director of the Public Sector Innovation Group at the Software & Information Industry Association. He was the staff director of the House Government Reform Committee's Subcommittee on Government Management, Finance and Accountability from 2003 to 2007.
"Where it fits in the historical context is not yet known," he added, although "Chairman Issa and his staff have clearly recognized that, more than 16 years after Clinger-Cohen became law, federal IT acquisition reform is long overdue."
With committee approval, FITARA is awaiting consideration by the full House with the Senate to follow, if it makes it that far. There are no specific dates for consideration.
Hettinger said the government has already made a monumental shift in how it purchases and uses IT because of technologies like cloud computing.
"As a result there is clearly a need to reform the regulations that govern how the government acquires IT," he said.
Larry Allen, president of the Allen Federal Business Partners, said FITARA, in its current form, is bound to make a significant impression on agency purchasing and management.
By placing considerable operational control in the hands of CIOs, FITARA would reconfigure the archetype of today's IT purchasing. For one, the bill would make the CIO position a political appointment. Karen Evans, a former CIO and Office of Management and Budget Administrator for E-Government and IT, said the change would further emphasize the role of deputy CIOs in agency management. They become the strand of continuity as investing and budgeting happens even when the political seat is unfilled.
"This means deputies become even more critical," said Evans, now partner at KE&T Partners.
FITARA also would create new terms like "commodity IT," which raised a lot of questions among experts. It would emphasize little-known buying approaches such as the fixed-price technical, or bid-to-price, competitions. It would build up IT acquisition expertise into cadres and push contracting officers to interact more with industry instead of keeping vendors an arm's length away.
With its current language, "FITARA changes the paradigm of the current acquisition system," Allen said.
Meanwhile, the committee removed language about the Federal Commodity IT Acquisition Center because of sentiment against it. There were concerns it would remove flexibility in purchasing. In the past, agencies were mandated in some situations to use certain contracts through mandatory purchasing centers, which the proposed FITARA measure seemed to echo.
That FITARA provision "suggest[ed] a return to the way the government purchased IT up until the mid-1990s, so going back would indeed be a change," Allen said. "Fixing something means making it better, not going back to a state of dysfunction that is merely different from the one you may have now."
Instead though, the committee opted for language about a Federal Infrastructure and Common Application Collaboration Center, which would concentrate on developing a centralized program of technical management expertise necessary. It could help coordinate IT acquisitions and offer best practices.
Issa officially introduced FITARA (H.R. 1232) on March 18 with updates based on feedback, having removed some provisions, revamping language in other areas, and including completely new provisions. On March 19, six organizations complained that Issa was moving too fast with his changes, asking for more time to review.
A letter signed by the six organizations reads in part: "Several significant portions of the proposal are entirely new text and have never before been seen and warrant significant additional review and discussion." They added too that several provisions appear redundant and duplicative—something the bill is ostensibly aiming to eliminate—because they restate authorities and responsibilities that are already in law.
Yet, Issa's committee approved the bill March 20.
The chairman's ear is still open though.
"The window of feedback is not shut," Issa said. "I expect this legislation to undergo further refinement." However, he said, the bill has been under discussion since September, and, "It is time to advance the bill to the next stage."
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