DTIC ADA262699: Streamlining Defense Acquisition Laws. Report of the Acquisition Law Advisory Panel to the United States Congress. Chapters 1 through 8 and Appendices

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by  Defense Technical Information Center

699 Introduction
AD-A262
STREAMLINING
DEFENSE
LAWS
ACQUISITION
Report
of the
Acquisition Law Advisory Panel
to the
United States Congress
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FOREW ORD ..i.i.i.........................................................................................................................
ACKNOW LEDGM ENTS ........................................................................................................... v
PANEL M EM BERS ................................................................................................................. vii
TASK FORCE ........................................................................................................................... ix
INTRODUCTION ....................................................................................................................... 1
A . Background ................................................................................................................. I
B. Strategic Changes ........................................................................................................ 4
C. Goals& Objectives ...................................................................................................... 7
D . Approaches ....................................................................................................................... 9
E. Overview of Conclusions and Recomm endations ............................................................. 11
F. Constraints ...................................................................................................................... 18
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FOREWORD
In section 800 of Public Law Number 101-510 (the National Defense
Authorization Act for Fiscal Year 1991), Congress directed the Department of Defense to
establish the "DOD Advisory Panel on Streamlining and Codifying Acquisition Laws." In
accordance with this directive, the Under Secretary of Defense for Acquisition selected the
Panel of recognized experts in acquisition law and procurement policy whose Report
follows here.
As contemplated by the Congress in its direction that the Panel represent a balance
from the public and private sectors, its members brought both diversity and a wealth of
experience to this study. While the Panel members share common responsibility for the
views and recommendations which follow, it is unrealistic - given their individual
perspectives - to expect complete unanimity in analyzing more than 600 statutes. The
many statements made on behalf of the Panel throughout the Report reflect a majority
view. The Panel's recommendations, as well as the Report as a whole, do not represent
official positions of either the Department of Defense or the United States Government.
Readers are cautioned that the terms "statute," "law," "code," or "provisions" are
freely used throughout the report in ways which may not reflect the narrowest legal
interpretation. Similarly, pronouns such as "he" or "she," unless used in a specific
personal reference, are not intended to convey any connotation of gender.
|iii
ACKNOWLEDGMENTS
This project could not have been done without the extraordinary efforts of the
highly professional Task Force formed under the sponsorship of the Defense Systems
Management College, which provided direct support to the Panel members as well as
administrative support for the study as a whole. The following Defense Department
activities contributed to this effort by providing members of their staffs to the Task Force:
the offices of the Air Force Judge Advocate General, Headquarters, Air Force Materiel
Command, Army Judge Advocate General, Army Materiel Command Headquarters, Army
Materiel Command (U.S. Army Communications Electronics Command), Assistant
Secretary of the Air Force (Acquisition), Assistant Secretary of the Navy (Research,
Development & Acquisition), Office of General Counsel (Defense Logistics Agency) and
the Office of Naval Research. On occasion, this Task Force worked around the clock to
prepare statutory analyses in time for Panel meetings. They deserve particular credit for
their hard work in helping the Panel members draft, assemble, and edit this Report. This
monumental effort came from a joint military and civilian team of dedicated people who
had never met nor worked together prior to the establishment of the Panel,
Throughout its deliberations, the Panel endeavored to establish a dialogue between
its members, the acquisition community, and the general public. A large number of
industry associations, Government agencies, public interest groups, and private citizens
came forward to offer their thoughts, their expertise, and, in many cases, significant
amounts of their time, We must also recognize the excellent support that the Panel
received from throughout the Department of Defense, particularly from the Military
Services and the Defense agencies. The Panel would like to take this opportunity to thank
everyone who participated in this process, because their varied perspectives and generous
support were essential to our work.
While the inputs which resulted from this process were invaluable, the analyses and
recommendations presented in the following Report are the sole responsibility of the
Panel.
V
PANEL MEMBERS
Pete Bryan
Director, Contract Policy & Adminstra;oto,
Office of the Secretary of Defense
Allan Burman
Administrator for Federal Procurement Policy
Anthony Gamboa
Deputy General Counsel
Department of the Army
Jack Harding
Vice President, Contracts, Raytheon Corporation
LeRoy Haugh
Vice President, Procurement & Finance
Aerospace Industries Association
Thomas J. Madden
Partner, Venable, Baetjer, Howard and Civiletti
Ralph Nash, Jr.
Professor of Law
George Washington University
F, Whitten Peters
Partner, Williams and Connolly
Gay Quigley
Deputy General Counsel
Defense Logistics Agency
Major General John D. Slinkard, USAF
Deputy Chief of Staff for Contracting
Headquarters, Air Force Materiel Command
Rear Admiral W. L. Vincent, USN
Commandant
Defense Systems Management College
Robert D. Wallick
Partner, Steptoe & Johnson
Harvey Wilcox
Deputy General Counsel
Department of the Navy
vii
TASK FORCE
Executive Secretay
Donald M. Freedman (DSMC)
Task Force Directors
C. Kenneth Allard, LTC(P), USA (DSMC)
Thomas J. Dolan, Jr. (ONR)
Susan P. McNeill, Col, USAF
TAsk Force Members
JoAnne L, Barreca (DLA)
Benjamin B. C. Capshaw, LCDR, USNR (DSMC)
James Cohen, Lt Col, USAF
Stuart A. Hazlett (SAF-AQC)
Barry Kline (AMC)
C. Jean Kopala, Maj, USAF (DSMC)
William E. Mounts (Contract Counsel)
Karen O'Brien, CPT, USA (DSMC)
Michael J, Renner, Lt Col, USAF
Michael Rose, Lt Col, USAFR
Diane M. Sidebottom (DLA)
James Wayne Skinner (NAVSUP)
Jack L. Soesbe, MAJ, USA (DSMC)
Theresa M. Squillacote (DSMC)
Jerry Stahl (AMC)
Donald J. Suda (DLA)
Bruce N. Warner (DSMC)
Administrative Staff
Wilma J. Frey (DSMC)
Laura J. Neal (DSMC)
Linda L. Snellings (DSMC)
Megan A. Weaver (DSMC)
ix
x
"STREAMLINING DEFENSE ACQUISITION LAW"
REPORT OF THE ADVISORY PANEL
ON STREAMLINING AND CODIFYING ACQUISITION LAWS
INTRODUCTION
A. Background
Hundreds of individual laws create the underpinnings of the defense acquisition
system, Large and small, significant and trivial, new and old, these laws emanate from the
fundamental Constitutional responsibility of the Congress "To raise and support Armies
(and) To provide and maintain a Navy."I Expanded many times by regulations, by
. . .
supplements to regulations, by directives, and by established practice, these laws have
been interpreted and applied by various courts, boards of contract appeals, and the
General Accounting Office. Separately and together, they govern the way tens of
thousands of Government workers buy -- and hundreds of thousands of Americans
manufacture, perform, and sell -- the millions of items and services required by a modem
fighting force literally everything from desert camouflage uniforms to precision-guided
--
munitions.
With the passage of the National Defense Authorization Act for FY91, Congress
declared that the time had come to start the process of rationalizing, codifying, and
streamlining this body of laws. Section 800 of that Act directed the official responsible for
administering acquisition law and regulation -- the Under Secretary of Defense for
Acquisition -- to appoint an advisory panel of Government and civilian experts. Under the
leadership of the Commandant of the Defense Systems Management College,2 this panel
w'is to review all laws affecting DOD procurement, "with a view toward streamlining the
defense acquisition process," and to issue a report for transmission by the Secretary of
Defense to the Congress in January 1993. The report was to be a practical plan of action
for moving from present law to an understandable code containing specific
recommendations to Congress: to eliminate any laws "unnecessary for the establishment
of buyer and seller relationships in procurement;" to ensure the "continuing financial and
ethical integrity" of defense procurement programs; and to "protect the best interests of
'U.S. CONST. art I, § 8.
2The Defense Systems Management College is a DOD educational institution which has, since 1971,
trained program managers and program executives from the uniformed services, defense industry, and all
branches of the Federal Government.
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the Department of Defense." Finally, the panel was asked to "prepare a proposed code of
relevant acquisition laws.",3
Maintaining a fair, efficient, and open system of defense procurement has been a
fundamental public policy since the earliest days of the Republic, as well as a specific
congressional goal since DOD was created by the National Security Act of 1947. In the
decades that followed, six major executive branch commissions separately examined the
perennial problem of defense management. In addition to serving as benchmarks for
reform, these commissions also resulted in some significant improvements. The
recommendations of the 1972 Commission on Government Procurement concerning the
need for a uniform procurement system "led to the establishment of the Office of Federal
Procurement Policy and the development of the Federal Acquisition Regulations." 4 In
1986, a new wave of change resulted in the passage of the Goldwater-Nichols Act -- a
landmark law that resolved entrenched issues of defense structure and command authority
-- as well as the creation of yet another commission -- the President's Blue Ribbon
Commission on Defense Management headed by David Packard,5
The Packard Commission provided a comprehensive analysis of the major problem
areas affecting defense management, and it also made a specific recommendation to
recodify the Federal laws governing procurement:
. the legal regime for defense acquisition is today
impossibly cumbersome. . . . At operating levels within
DOD, it is now virtually impossible to assimilate new
legislative or regulatory refinements promptly or effectively.
For these reasons, we recommend that Congress work with
the Administration to recodify Federal laws governing
procurement into a single, consistent, and greatly simplified
procurement statute.6
Although the Packard Commission's recommendations attracted wide public
attention, they nevertheless failed to prompt the sweeping legislative changes that many
had thought possible in the aftermath of the Goldwater-Nichols reforms. A 1988
congressional report noted that the Packard Commission's status as the sixth major study
of defense acquisition over four decades meant that it was merely the latest to address
continuing problem areas in defense procurement. As House Armed Services Committee
Chairman Les Aspin stated in his foreword to the report, "Perhaps the next executive
commission on acquisition should be created, not to propose the reforms, but to
3Pub. L. No. 101-510, § 800, 104 StaL. 1587. See H.R, CONW. REP. No. 923, 101st Cong., 2d Sess. 107
(1990) to accompany HR. 4739 (National Defense Authorization Act for Fiscal Year 1991).
4Defense Policy Panel and Acquisition Policy Panel of the H.R, Comm. on Armed Services, 100th Cong.,
2d Sess., Defense A cquisition,"M ajor U.S. Commission Reports (1949-1988) (Comm, Print 1988), vi.
5Pub. L, No. 99-433, 100 Stat. 992. See H.R. CONF. REP. No. 824, 99th Cong., 2d Sess., (1986) to
accompany H.R, 3622 (Goldwater-Nichols Department of Defense Reorganization Act of 1986).
6A Quest for Excellence: Final Report by the President's Commission on Defense Management 55 (June
1986).
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implement them."7 In June 1989, Secretary of Defense Dick Cheney set forth just such a
plan in his Defense Management Review (DMR), an ambitious effort not only to
implement the recommendations of the Packard Commission, but to provide a framework
for continuing improvements in Pentagon acquisition practices.8
One of the Packard CommhiL ion's findings, endorsed by the DMR, was the need
for broad changes in the acquisition statutes:
With the enactment of additional major legislation since
1986, when the Packard Commission finished its work,
there is increased urgency to addressing the body of
procurement law in its totality - in order to simplify, and
clarify the framework under which DOD and other
departments operate, and more broadly . . to make the
acquisition process fundamentally more effective.9
The DMR subsequently provided a benchmark for a number of important
acquisition initiatives: the identification of almost 400 acquisition directives for
cancellation or consolidation; the streamlining of the Defense Federal Acquisition
Regulation Supplement to a document less than half the size of its predecessor; and, in
response to a DMR White Paper, congressional action to cancel 30% of the recurring
reports that it had originally required for oversight purposes. 10
This executive-legislative branch partnership was implicitly recognized by the
Senate in approving the legislation which authorized the formation of the "Advisory Panel
on Streamlining and Codification of the Acquisition Laws:"
The Packard Commission and Secretary Cheney's Defense
Management Review represent the most recent efforts to
promote efficiency in Government procurement practices.
The purpose of this Advisory Panel will not be to plow the
same ground as previous studies; rather, it will be to take
the general principles set forth in these studies and prepare a
pragmatic, workable set of recommended changes to the
acquisition laws. I1
7Defense Policy Panel and Acquisition Policy Panel of the HR. Comm. on Armed Services, 100th Cong.,
2d Sess., Defense Acquisition: Major US. Commission Reports (1949-1988) (Comm. Print 1988), vii.
8U.S. Dep't of Defense, Defense Management Report to the President by Secretary of Defense Dick
Cheney (1989).
91d. at 26.
10U.S. Dep't of Defense, Annual Report to the President and the Congress 28-29 (1992). Hcrcafler, 92
Annual Report.
11S. REP. No. 384, 101st Cong., 2d Sess. 819 (1990) to accompany S. 2884 (National Dcfense
Authorization Act For Fiscal Year 1991).
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