GPRA bill on track after ‘inherently governmental’ speed bump

By Robert Brodsky

November 30, 2010

Federal contractors will be allowed to continue providing administrative support to government agencies in drafting and preparing required strategic plans and performance reports, according to proposed legislative language Senate Democrats offered on Monday.

For the past several weeks, private industry groups have mounted a behind-the-scenes campaign to amend or revise the Government Performance and Results Modernization Act, a bipartisan bill designed to track and improve agency performance. The legislation, which was approved by the Senate Homeland Security and Governmental Affairs Committee in September, is an update of the landmark 1993 Government Performance and Results Act.

The new bill was expected to spark little controversy and sail easily toward passage. But it hit a speed bump in early November when procurement analysts began raising questions about a provision that some believed could prevent businesses from assisting with GPRA-required plans -- a lucrative business in the Washington region for federal consulting firms.

The language in question identified the drafting of strategic plans, performance plans, agency performance updates and the development of agency priority goals as inherently governmental, meaning they must be performed by federal employees. The provision generally mirrored language included in the 1993 GPRA bill.

But critics noted the older legislation came with committee report language clarifying that "this does not limit agencies from being assisted by nonfederal parties, such as contractors or grantees, in the preparation of these plans and reports. This might be necessitated, for example, when there is a lack of in-house expertise within an agency. The assistance of nonfederal parties may include collection of information, the conduct of studies, analyses or evaluations; or the providing of advice, opinions or ideas to federal officials; or to provide training of federal employees."

The bill that cleared committee earlier this year included no such clarifying language, leading some to believe Senate lawmakers were intentionally tightening the reins on the types of functions that can be performed by private industry.

"The absence of similar language in the GPRA Modernization Act, or in the congressional reports accompanying the bills, may lead agencies and federal watchdog groups to construe the act as preventing nongovernmental assistance in the development of covered plans," wrote Stan Soloway, president of the Professional Services Council, a contractor trade association, in a letter last week to Sens. Daniel Akaka, D-Hawaii, and George Voinovich, R-Ohio, two of the bill's authors. The bill also was sponsored by Sens. Thomas Carper, D-Del.; Mark Warner, D-Va.; Joe Lieberman, I-Conn.; and Susan Collins, R-Maine.

Others saw even more ominous, unintended consequences if the bill is not revised. "If this bill becomes law without clarifying language in either the bill or the committee report, it will set a dangerous precedent that could potentially ban any type of administrative or analytical contractor support for federal employees performing inherently governmental duties," said Renee Courtland, the director of the Jefferson Consulting Group's government consulting division who served as a procurement analyst at the Office of Federal Procurement Policy during the George W. Bush administration.

On Monday night, Senate Democrats acquiesced to those concerns, submitting proposed committee report language clarifying that contractors and grantees can assist agencies and departments "in the preparation of these [GPRA] plans and reports." The provision still awaits approval by Collins, the committee's ranking member. A committee spokeswoman said Collins expects to move forward with the bill as revised. A congressional source familiar with the bill told Government Executive that industry's concerns were overstated in that lawmakers had no interest in changing the intent of the provisions on what is inherently governmental.

The source said the 1993 statute would have remained in effect even without the newly added committee report language. "From our perspective, it was not that big of a deal," the source said. And while the new language was considered somewhat extraneous, it was added to ease industry concerns, according to the source.

Industry officials, however, argue federal procurement officers easily could have misinterpreted the lack of new clarifying language as evidence that legislators no longer wanted contractors to provide support functions.

Contracting officials were pleased with the outcome. "We consider the language in the committee report a reasonable compromise," said Roger Jordan, director of governmental affairs at PSC. "It's helpful in easing some of the heartburn."

Nonetheless, PSC still would prefer that lawmakers remove the provisions on what is inherently governmental altogether and rely exclusively on OFPP's guidance on functions that must be performed by federal employees. The change to the rule is expected to be finalized before year's end.

To fulfill its broader goals, the Government Performance and Results Modernization Act would require agencies to designate senior officials to serve as chief operating and performance improvement officers. These two officials would be responsible for finding significant cost savings through elimination of redundant programs and for improving coordination of common administrative functions such as purchasing. The overarching intent is to move the federal government from merely collecting and reporting data to implementing data-driven performance management.


By Robert Brodsky

November 30, 2010

http://www.govexec.com/oversight/2010/11/gpra-bill-on-track-after-inherently-governmental-speed-bump/32835/