For my first official BLOG entry (are they called entries? Oh well, mine are called entries now), I have been overwhelmed with ideas. This specific post has had multiple titles and themes as I chase each shiny object that illuminates my periphery. But at last, I have determined to move past daydreaming and into typing; and so, the topic that has me in deepest thought this week is the topic of public procurement regulation, to include policies and guidance, and other such follicles in the giant hairball of public procurement. This is not an entry for the admiration of such instruction and limitations, nor is it simply a forum for complaint. No, this entry is a call to action. A call to fill the quiver of the procurement practitioner with arrows that can pierce the hide of this seemingly impenetrable beast.
Diameter of the Hairball 
First off, procurement regulation and policy means a lot of ‘stuff’. It is enormous! The current Federal Acquisition Regulation (FAR) is more than 2,000 pages and that doesn’t include Agency supplements, and policies, and local policies, and guidance (and….and…). In addition to this hedgerow of established regulation and policy, there is the constant growth of new regulation and new policy, which is now promulgated at an increasingly quicker pace to keep up with the speed of technology development. So, with these facts in mind, my first inclination (to list out all the procurement regulations and policies and immediately generate stern letters demanding their tailoring or removal) is perhaps not a practical solution. No, I will need to build an army of empowered, policy-conscious, procurement professionals if I hope to apply freshly sharpened shears to the entangled regulatory sphere.
The Art of Regulation and Policymaking
Regulation and Policymaking is an art. It is not science; it is not black & white; it is truly art. Those select people that are good at rulemaking are great interpreters, and advocates, and translators, and creative thinkers. They have a knack for the succinct, and the ability to persuade through carefully created argument and critical analysis. They are artists……or at least they should be. Early in my Government contracting career, I was assigned to the Research & Development contracting group at what was then the TACOM Contracting Center in Warren, Michigan. It was a dream job. R&D is where everything cool and creative in procurement happens (just my opinion), and I loved every minute of it. I was working with engineering teams to develop some of the coolest ground system technologies (many of which reside in-ground systems today) and had the freedom and trust of my team to create unique and novel procurement solutions. Dream job, plain and simple.
After my initial assignment with the R&D group, it was the customary practice to rotate to another buying function to ‘broaden my skills’. Those employees due for rotation, such as myself, were asked by the business management office to identify their preferred rotation area, and were provided a list of examples:
“Please identify your top three preferences for rotation, in order of first to last (e.g. Systems, Sustainment, Services, Installation Support, Policy, etc…)”
I was immediately excited to see ‘Policy’ as one of the options and made it my first choice. I had a legal background; knowledge of the rulemaking process; and was highly regarded amongst colleagues and customers for my creative solutions (…they would have to give me my first choice!). But that is not how my career played out at all. Shortly after drafting my preference email and shipping it off to the Business Management Office, I received a curious message in response:
“Ben – Please come see me. I am concerned about your selection of Policy.”
Concerned? Have I done something wrong? I immediately re-looked at the original email to confirm that Policy was one of the options, and it was. Why would this cause concern? Nervous, I made my way over to Business Management to find out how my actions had prompted such ‘concern’. The supervisor who had sent me the note asked me to close the door:
Supervisor: “Ben, I am a little concerned about your preference to rotate to Policy.”
Me: “Yes, I read that. I’m a bit confused because Policy was one of the areas offered in the example for rotation. Is it not an option?”
Supervisor: “No, I’m not saying that. It is an option. I’m just concerned about why you would want to go there.”
Me: “Well, I have a legal background, and I’m interested in the rulemaking process, and I think I’ve demonstrated that I can develop creative solutions and translate complex concepts into plain English and…..”
Supervisor: “Whoa, whoa, okay. I think you misunderstand what the Policy department does. It is not really analyzing, or interpreting, or writing policy. It is not an area that you would use those skills, and that brings me to my concern. You see my concern is that when we have people that are good at buying, we really need them buying, and not working in Policy.
Me: Understood. (…..what do all those people do? Not sure I got an answer…)
I don’t believe the message from this supervisor was purely ‘those that can do, do, and those that can’t write policy’, (although that is certainly a widely held belief amongst practitioners). No, while that was part of the message, I believe the other part of the message was ‘when you’re shorthanded in procurement, the bodies go to execution, not policy.’ And so, my career never took me to “The Policy Department”, not formally at least. Later in my career, I would develop congressional engagement strategies and write procurement policies and guidance for multiple agencies and committees, but never officially work ‘in Policy’.
The Feedback Loop
Regulation and policymaking in procurement is largely a top-down affair. Those most affected by procurement regulation and policy, the practitioners, are an understaffed and overworked lot without a moment to spare for such things as regulation and policy development. Of course, the perverse reality is that these practitioners are so busy complying with the complex web of procurement regulations and policies BECAUSE they can’t spare a minute to review and comment on the complex web of procurement regulations and policies. And so, the wheel turns. Equally concerning are the organizational structures and processes that have built up around regulation and policy development, which make it more difficult for practitioners to provide input on effects of policies. Short comment periods; comments that seemingly go nowhere; short taskers to address major organizational changes; and a lack of transparency on the analysis of legitimate input, drive home a clear message: “your input is not important”. In this aspect, the feedback loop (if such a thing was ever truly intended) is broken.
A Short Example of Why a Feedback Loop Matters
The following example, while true and accurate, has been modified to protect those involved (the purpose is to explain why a feedback loop is important, not roll people under the bus):
In (time period redacted), while working on multiple high-visibility projects, and under evolving authorities, I became involved in an effort which was impacted by newly generated policy. The specific policy had been developed at the higher levels of (Agency redacted), and to my knowledge, had not been submitted for comment to any of the practitioners impacted by this specific change. The policy required a specific routing and approval of efforts executed under the Other Transaction Authority and was made immediately applicable to multiple efforts under my purview. I had no knowledge of the specific policy, as it had come down through the usual chains (policy offices at each level) and had yet to be packaged and sent to me in a bulk email with the rest of the policies during that period. At the time I eventually received the notice, the policy was several months old. I was made aware of the policy, not through my policy office but by a fellow practitioner who was working diligently to comply in an attempt to maintain schedule on a current procurement effort. Upon reading the policy, I immediately identified that the approval process required was contrary to statute. Specifically, the policy required routing for approval to an office that could not be delegated such approval by law. I identified this issue to my colleague and was immediately rebuffed. “The policy is the policy. The smart people at “HQ” wrote it. Who the hell are you to challenge it?” And so, I did the thing that rarely is done. I contacted the policy POC at “HQ”. After a short conversation, I was informed that they “would look into it” and get back to me. This particular office did eventually amend the policy to their credit. The amended policy was filtered down through the levels of policy offices (I am told as I never actually received it), and the routing approval was corrected. Of course, not before my colleague spent months preparing an approval package pursuant to the original policy, and then months reworking an approval under the revised policy (and no, he never thought to pick up the phone).
Of course, there are more juicy details to this story about the bureaucrats (supervisors and stakeholders) who wasted time and money in defending an obvious mistake and scapegoating, and the usual behaviors, but that is not the point of this story. The point is that a feedback loop is necessary for good policy. Comment periods are for the benefit, not the detriment, of good policy. The people impacted by procurement policy need to have a voice and need to KNOW that they have a voice. A good policy feedback loop is agile, frequent, continuous, and transparent, and here’s a radical idea, it should be user-focused.
Agile Policy Making, and A Call to Action
The professionals who dedicate themselves to the procurement profession are highly educated, experienced, creative individuals, who provide their clients with the highest level of care in developing and delivering sound business solutions to support the needs of the client. Regulations, policies, and guidance that limit the ability of procurement professionals to deliver creative solutions are counter to the single most important role of these professionals, which is the role of a business advisor. Further, regulations, policies, and guidance devoid of a continuous feedback loop between regulator and practitioner, quickly, if not immediately, take value from the customer by tying the practitioner’s business advice to out-of-touch practices.
It is thus my opinion that sound, effective, beneficial, value-driven regulation and policy in the Federal procurement context should be:
- Narrowly tailored to implement the intent of procurement law, without imposing an undue burden on procurement practitioners in carrying out their duties;
- User-focused, with attention to the impact of regulation/policy in delivering end-product to the user community;
- Implemented in phases and continuously modified based upon on success/failure and second-order of effects; and
- Developed through an Agile, bottom-up approach which begins with input from the parties impacted, in an open and transparent manner, through readily identified and easily accessed forums, and with input periods commensurate to the potential impact of the regulation/policy.
And so, to give a voice to the practitioner in the regulatory/policymaking process as my objective, this is my call to action: Tell me your stories. Tell me your entry points to the process, your tips & tricks, your processes, and your POCs. Help me to map the ways in which procurement professionals can impact procurement regulation and policy, individually, or as a community. What are the websites you track? Who are the people you follow? What are the offices the control the process? What are all the avenues available for procurement practitioners to determine their own destiny? Further, which avenues are working, and which ones are not? In the interest of giving the power back to the practitioner, I ask that you join me in compiling the “How to impact Procurement Regulation and Policy” guidebook for your regular working-level procurement professional. With your help, we can put the power back into the hands of the people that actually do the work!
As always, you can leave a comment below, or email your ideas to me directly at Ben@publicspendforum.net. The results of this call for action will be compiled for presentation at the National Contract Management Association’s World Congress, July 26-29, 2020, and be made publicly available via the Public Spend Forum.