Legal Matters

The changing nature of federal IT acquisition

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President Obama's call for information technology acquisition reform is relatively recent and not yet fleshed out, but it almost certainly will involve some components of the Federal Information Technology Reform Act (FITARA).

By David Robbins and Alan Tilles

With President Obama’s announcement that, in the wake of the troubled roll out of the healthcare.gov website, he supports information technology acquisition reform, change appears to be guaranteed.  The only question is what form that change will take.  The president’s announcement adds more texture to the recent discussion regarding the Federal Information Technology Acquisition Reform Act (FITARA), which is working its way through Congress.

Key components of FITARA include the following:

  • Ending component-level chief information officer (CIO) designations, bringing the position to the agency/department level in 16 civilian agencies, and making those CIOs presidential appointees;
  • Creating an interagency coordinating body for federal CIOs to share best practices and coordinate acquisition efforts, as well as creating acquisition centers of excellence across the government;
  • Cataloging and streamlining data center, website and information technology assets, and strengthening cloud computing;
  • Requiring certain changes in the analysis before information technology may be procured;
  • Perhaps most interestingly, involving new sourcing mechanisms, calling for new government-wide contracts, and considering contract types where price is fixed and announced in the solicitation, and providers compete on the services to be offered for that price.

The president’s call for information technology acquisition reform is relatively recent and not yet fleshed out, but it almost certainly will involve some of FITARA’s components.  With the president on board the information technology acquisition reform effort, it appears change is imminent. 

While these changes may bring additional (and perhaps needed) discipline to federal information technology acquisition efforts, challenges remain for contractors.  In turn, they may impact FirstNet’s procurement methodologies.  Information technology procurements historically suffer from “scope creep,” i.e., a lack of certainty in the government’s requirements, and follow design strategies that do not always conform to industry best practices.  Whatever form the information technology acquisition reform effort takes, they likely will seek to shift risk even further to the contractor.  The occasionally undisciplined federal acquisition process, coupled with a further shifting of risk to the contractor, means even more challenges for our clients.  Making matters potentially worse, the Government Accountability Office and others are taking hard looks at information technology acquisition efforts, so contractors may find that obtaining contract changes will be more difficult and communications with the contracting officer more strained. 

Even with all of these changes and uncertainties, we are still bullish on the federal information technology acquisition market, and the wireless market in particular.  (Technology is ubiquitous.  It is difficult to imagine many government acquisition efforts that will not involve technology enhancements.)  We further predict that best practices will flow from federal to state and back again, as new contract types, acquisition strategies, and sourcing options percolate throughout the various levels of government. 

In other words, the changes that happen at the federal level inevitably will trickle down to the state level.  But we advise contractors to remain vigilant and focused on documenting the contract file throughout performance.  We do not necessarily advocate contract modifications at every step, but being disciplined in recording customer requests and how they are fulfilled provides maximum flexibility throughout contract performance.

David Robbins and Alan Tilles, chair the Government Contracts and Telecommunications practices, respectively, at Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

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Alan Tilles

Alan Tilles is counsel to numerous entities in the private radio and Internet industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker and can be reached at atilles@...
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