Recommendation: The Secretary of Homeland Security should direct the DHS Chief Procurement Officer to, in coordination with the Office of Program Accountability and Risk Management, develop a risk-based approach for reviewing service requirements—through the Procurement Strategy Roadmap or other means—to ensure proposed service requirements are clearly defined and reviewed before planning how they are to be procured. (Recommendation 1)

Agency: Department of Homeland Security
Status: Open

Comments: DHS disagreed with our recommendation, preferring to maintain the status quo in its policy and procedures. However, by doing so, DHS is missing important opportunities to prevent negative acquisition outcomes and the potential for wasted resources. In its response, DHS noted its processes for major acquisitions, however, DHS service programs and contracts did not rise to the level of being classified a major service acquisition.

Recommendation: The Secretary of Homeland Security should direct the DHS Chief Procurement Officer to document the factors the Office of the Chief Procurement Officer considers when waiving procurement actions from its Procurement Strategy Roadmap to ensure it is consistently considering potential acquisition risks in its planning—including those specific to services. (Recommendation 2)

Agency: Department of Homeland Security
Status: Open

Comments: DHS did not concur with this recommendation, maintaining that the factors considered when waiving a Procurement Strategy Roadmap are not static. We believe, however, that documenting the factors considered will help ensure that the decisions to waive the Procurement Strategy Roadmaps are made consistently, transparently, and help maintain institutional knowledge.

Recommendation: The Secretary of Homeland Security should direct the DHS Chief Procurement Officer to update the Inherently Governmental and Critical Functions Analysis to require the identification of special interest functions. (Recommendation 3)

Agency: Department of Homeland Security
Status: Open

Comments: DHS concurred with this recommendation and stated that it will update the Inherently Governmental and Critical Functions Analysis job aid to require the identification of a special interest function when applicable.

Recommendation: The Secretary of Homeland Security should direct the DHS Chief Procurement Officer to update the Inherently Governmental and Critical Functions Analysis to provide guidance for analyzing, documenting, and updating the federal workforce needed to perform or oversee service contracts requiring heightened management attention. (Recommendation 4)

Agency: Department of Homeland Security
Status: Open

Comments: DHS did not concur with this recommendation maintaining that the components are certifying that they have sufficient internal capacity or federal employees available for oversight within the Inherently Governmental and Critical Functions Analysis. We continue to believe, however, that without guidance, each component is making its own determination about which factors to consider, and DHS does not know how or whether the components are considering the federal workforce available to oversee service contracts in need of heightened management attention, or what steps, if any, the components are taking to mitigate risks if there are not enough federal personnel available to oversee the contracts after award.

Recommendation: The Secretary of Homeland Security should direct the DHS Chief Procurement Officer to develop guidance identifying oversight tasks or safeguards personnel can perform, when needed, to mitigate the risk associated with contracts containing closely associated with inherently governmental functions, special interest functions, or critical functions. (Recommendation 5)

Agency: Department of Homeland Security
Status: Open

Comments: DHS concurred with this recommendation and stated that it will develop guidance that identifies oversight tasks or safeguards that personnel can perform, when needed, to mitigate the risk associated with contracts containing closely associated with inherently governmental, special interest, or critical functions.

Recommendation: The Secretary of Homeland Security should direct the DHS Chief Financial Officer to work with Congress to identify information to include in its annual congressional budget justifications to provide greater transparency into requested and actual service requirement costs, particularly for those services requiring heightened management attention. (Recommendation 6)

Agency: Department of Homeland Security
Status: Open

Comments: DHS did not concur with this recommendation stating that its annual Congressional Budget Justification already contains substantial service contract information. We maintain, however, that the service contract information currently included limits visibility for both DHS and Congress into requested and actual service requirements costs.

Recommendation: The Administrator of the General Services Administration, in coordination with the Secretaries of Defense and Homeland Security, should jointly revisit and assess the extent to which the criteria in the 2018 NIA code Memorandum of Agreement, including criteria for closing NIA codes, meet long-term visibility needs for high visibility events and account for the needs of users, such as FEMA, other agencies, and the Congress. At a minimum, the agreement should include criteria that take into account the roles of the federal agencies involved in response and recovery and provide a process that ensures consistent consideration and implementation of the criteria. (Recommendation 1)

Agency: General Services Administration
Status: Open

Comments: The General Services Administration (GSA) and the Department of Defense (DOD) concurred with the recommendation and the need to regularly review the memorandum of agreement (MOA) and make revisions as applicable. The Department of Homeland Security (DHS) did not respond to the recommendation. In August 2019, GSA, DHS, and DOD revised the agreement, but the revisions did not fully address the recommendation. The revisions included a change to one criterion for closing National Interest Action (NIA) codes--adding consistent decline in contract actions as a criterion and removing the criterion that relied on alternative tracking methods at agencies. However, the revisions to the MOA did not include changes that provide a process to ensure consistent implementation of criteria, or address long-term visibility needs, or account for the needs of users. In July 2020, a DHS official stated that DOD and DHS had conducted an annual review of the MOA and determined no changes were necessary, and that DOD and DHS would consider potential updates to the MOA during their next annual review. GSA officials clarified that, in terms of updating the MOA, GSA is the servicing agency and does not have the authority to determine the criteria for establishing, extending, or end-dating NIA codes. GSA officials stated, and DHS officials agreed, that DHS and DOD determine the criteria for whether a NIA code needs to be established, extended, or end-dated.

Recommendation: The Administrator of the Office of Federal Procurement Policy should provide additional clarification on how contracting officers should determine whether offerors reside or primarily do business in a disaster area for the purposes of a local area set-aside contract. (Recommendation 4)

Agency: Executive Office of the President: Office of Management and Budget: Office of Federal Procurement Policy
Status: Open

Comments: The Office of Federal Procurement Policy concurred with this recommendation. In September 2019, officials identified the Emergency Acquisition Guide as a vehicle to address this recommendation. The Emergency Acquisition Guide, last updated in 2011, is intended to assist the federal contracting community with planning and carrying out procurement activities during contingency events. However, officials did not provide details on how this recommendation would be incorporated or provide time frames for when the guide would be updated. As of July 2020, Office of Federal Procurement Policy staff had not provided an update on implementation of this recommendation.

Recommendation: The Commandant of the Coast Guard should establish a formal process to solicit input from officials directly involved in the agency's response and recovery following a disaster and to share that input with the Emergency Support Function Leadership Group. (Recommendation 8)

Agency: Department of Homeland Security: United States Coast Guard
Status: Open

Comments: The US Coast Guard concurred with this recommendation. In its agency response, the Coast Guard stated that it was reviewing its current policies and processes to update its After Action Report Policy or to identify and implement other policy improvements. As of July 2020, these actions were still in progress.

Recommendation: The FEMA Administrator should take the lead to work together with the Coast Guard and the U.S. Army Corps of Engineers to revise the mission assignment policy and related guidance to better incorporate consideration of contracting needs, such as demobilization, and to ensure clear communication of coordination responsibilities related to contracting. (Recommendation 9)

Agency: Department of Homeland Security: Directorate of Emergency Preparedness and Response: Federal Emergency Management Agency
Status: Open

Comments: The Federal Emergency Management Agency (FEMA) concurred with the recommendation. In its response, FEMA stated it would work with its federal partners and develop mission assignment project management tools and training. In addition, FEMA is planning to develop a Mission Assignment Project Manager Guide to provide guidance to address the issues GAO identified. As of July 2020, FEMA indicated it would develop a new project plan and timeline for completing these actions in the winter of 2020.

Recommendation: The FEMA Administrator should assess its workforce needs—including staffing levels, mission needs, and skill gaps—for contracting staff, to include regional offices and DART; and develop a plan, including timelines, to address any gaps. (Recommendation 10)

Agency: Department of Homeland Security: Directorate of Emergency Preparedness and Response: Federal Emergency Management Agency
Status: Open

Comments: The Federal Emergency Management Agency (FEMA) concurred with this recommendation. In its official response, FEMA stated it would take actions to address this recommendation, including hiring contractor support and additional Cadre of On-Call Response/Recovery Employees. As of August 2020, these actions were still in progress. FEMA officials indicated that its workforce assessment was expected to be complete in December 2020.

Recommendation: To help foster strategic decision making and improvements in the acquisition of services, the Under Secretary of Defense for Acquisition, Technology, and Logistics should, as part of its effort to update the January 2016 instruction, reassess the roles, responsibilities, authorities, and organizational placement of key leadership positions, including functional domain experts, senior services managers, and component level leads.

Agency: Department of Defense: Office of the Secretary of Defense: Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics
Status: Open
Priority recommendation

Comments: DOD concurred with the recommendation. In July 2018, DOD officials told us that they planned to fully implement this recommendation in the revised instruction once it was issued. In January 2020, DOD issued an updated instruction that, among other things, revised elements of the management structure. We plan to begin work later in 2020 that will assess whether the changes reflected in the January 2020 instruction address the issues we identified.

Recommendation: To help foster strategic decision making and improvements in the acquisition of services, the Under Secretary of Defense for Acquisition, Technology, and Logistics should, as part of its effort to update the January 2016 instruction, clarify the purpose and timing of the Services Requirements Review Board process to better align it with DOD's programming and budgeting processes.

Agency: Department of Defense: Office of the Secretary of Defense: Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics
Status: Open
Priority recommendation

Comments: DOD concurred with the recommendation. In July 2018, DOD officials told us that they planned to fully implement this recommendation in the revised instruction once it was issued. In January 2020, DOD issued an updated instruction that, among other things, revised elements of the Services Requirements Review Board process. We plan to begin work later in 2020 that will assess whether the changes reflected in the January 2020 instruction address the issues we identified.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Director of the Defense Logistics Agency should comply with sections 15(k)(2), (k)(7), (k)(11), and (k)(17) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of Defense: Defense Logistics Agency
Status: Open

Comments: For section 15(k)(2), related to the compensation and seniority of the person heading the OSDBU office, DOD concurred with this part of the recommendation. Agency officials stated that the agency requested that DOD seek Congressional approval to authorize a new Senior Executive Service position for the OSDBU director, and the agency has been waiting for this authorization to make this change. An agency official said that DLA recently hired a new Office of Small Business Programs director at the GS-15 equivalent level. This hire is not consistent with the requirements of section 15(k)(2). We will continue to monitor DOD's efforts to address this recommendation. For section 15(k)(7), related to supervisory duties, DOD did not concur with this part of the recommendation. An agency official said that the management structure of DLA and its subordinate elements precludes assigning supervisory authority by the DLA OSBP over all agency personnel involved in small business functions. The official said that DOD OSDP is working to submit legislative proposals for the fiscal year 2020 National Defense Authorization Act. These proposals may address DLA's compliance with section 15(k)(7). For section 15(k)(11), related to advise on insourcing, DOD concurred with this part of the recommendation and said that future insourcing actions will be coordinated with the DLA OSBP as required. The agency official said that as of August 10, 2018, there have not been any insourcing actions. DOD provided a memo documenting that a future update of DOD policy will include language about complying with section 15(k)(11) requirement. The information provided is sufficient to close this part of the recommendation. For section 15(k)(17), related to responding to undue restrictions on the ability of small businesses to compete, DOD concurred with this part of the recommendation. DOD provided a memo that includes information on how the agency will comply with the section 15(k)(17) requirements and that these procedures will be included in a future DOD policy update. The information provided is sufficient to close this part of the recommendation as implemented.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of Agriculture should comply with sections 15(k)(2), (k)(15), and (k)(17) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of Agriculture
Status: Open

Comments: For section 15(k)(2), related to the compensation and seniority of the person heading the OSDBU office, and for section 15(k)(15), related to collateral duties, on September 13, 2018, an agency official stated that the agency currently does not have an OSDBU director. The official stated that the agency does not have an estimate for when this would occur because the director is appointed by the White House. We will continue to monitor USDA's efforts to address this part of the recommendation. For section 15(k)(17), related to undue restriction on the ability of small businesses to compete, an agency official stated that the OSDBU is working on an internal policy which will include guidelines for action. The official stated that the estimated completion date is January 2019. We will continue to monitor USDA's efforts to address this part of the recommendation.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of the Army should comply with section 15(k)(8) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of Defense: Department of the Army
Status: Open

Comments: DOD did not concur with this recommendation, related to assigning small business technical advisors, because it said that the Defense Federal Acquisition Regulation Supplement delegates the authority to appoint small business technical advisers to the head of the contracting activity. We continue to believe that the recommendation is valid because when a statutory provision such as section 15(k) and regulations such as the acquisition regulation conflict, the statute controls. An agency official said that the DOD OSBP recommended, as part of the legislative proposal process, changes to the National Defense Authorization Act to align with the DOD OSBP's interpretation of the statute, but it did not make it out of DOD. We will continue to monitor DOD's efforts to address this recommendation.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of Defense should comply with sections 15(k)(5) and (k)(8) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of Defense
Status: Open

Comments: For section 15(k)(5), related to identifying and addressing bundling of contract requirements, DOD did not concur with this part of the recommendation because it said that no contracting or bundling occurs at the level of the Office of the Secretary of Defense. We continue to believe that the recommendation is valid because if DOD believes that the situation of this office supports that it is in compliance with section 15(k)(5), the agency should report to Congress on how it believes it is in compliance, and seek any statutory flexibilities or exceptions believed appropriate. We will continue to monitor DOD's efforts to address this part of the recommendation. For section 15(k)(8), related to assigning small business technical advisors, DOD did not concur with this part of the recommendation because it said that the Defense Federal Acquisition Regulation Supplement delegates the authority to appoint small business technical advisers to the head of the contracting activity. We continue to believe that the recommendation is valid because when a statutory provision such as section 15(k) and regulations such as the acquisition regulation conflict, the statute controls. An agency official said that the DOD OSBP recommended, as part of the legislative proposal process, changes to the National Defense Authorization Act to align with the DOD OSBP's interpretation of the statute, but it did not make it out of DOD. We will continue to monitor DOD's efforts to address this part of the recommendation.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of Education should comply with sections 15(k)(3) and (k)(11) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of Education
Status: Open

Comments: For section 15(k)(3), related to reporting to the agency head or deputy head, an agency official stated that a deputy secretary was confirmed in May 2018 but that the previous OSDBU director was no longer with the agency and a new director would be appointed to the OSDBU director position. The agency official also said that once a new OSDBU director is assigned, the deputy secretary will provide oversight to the OSDBU director including signing the director's performance appraisal. We will continue to monitor the Department of Education's efforts to address this part of the recommendation. For section 15(k)(11), related to advise on insourcing, on July 20, 2018, an agency official provided guidance on insourcing which states that the OSDBU will review and advise on any decision to convert an activity performed by a small business concern to an activity performed by a federal employee. The information provided is sufficient to close as implemented this part of the recommendation.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of Energy should comply with sections 15(k)(3), (k)(8), and (k)(17) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of Energy
Status: Open

Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of the Interior should comply with sections 15(k)(11) and (k)(17) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of the Interior
Status: Open

Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of the Navy should comply with section 15(k)(8) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of Defense: Department of the Navy
Status: Open

Comments: DOD did not concur with this recommendation, related to assigning small business technical advisors, because it said that the Defense Federal Acquisition Regulation Supplement delegates the authority to appoint small business technical advisers to the head of the contracting activity. We continue to believe that the recommendation is valid because when a statutory provision such as section 15(k) and regulations such as the acquisition regulation conflict, the statute controls. An agency official said that the DOD OSBP recommended, as part of the legislative proposal process, changes to the National Defense Authorization Act to align with the DOD OSBP's interpretation of the statute, but it did not make it out of DOD. We will continue to monitor DOD's efforts to address this recommendation.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of the Treasury should comply with sections 15(k)(8) and (k)(11) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of the Treasury
Status: Open

Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Secretary of Veterans Affairs should comply with sections 15(k)(3), (k)(8), and (k)(11) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Department of Veterans Affairs
Status: Open

Comments: For section 15(k)(3), related to reporting requirement (head of agency or deputy head), a VA official stated that the agency has changed the reporting relationship of the OSDBU director. The official stated that the Deputy Secretary will now act as rating Official for the Executive Director, OSDBU, and will sign the initial draft rating. The official also provided a Senior Executive Leaders FY 2018 Rating Scheme (dated January 2018) which shows that the Deputy Secretary rates and reviews the OSDBU director. The information provided is sufficient to close as implemented this part of the recommendation. For section 15(k)(8), related to assigning small business technical advisors, an agency official stated that VA has circulated a draft Memorandum of Understanding for concurrence which would address among other things, the extent of supervisory authority to be exercised over the Small Business Technical Advisor personnel by the Executive Director, OSDBU, while the advisor personnel remain employees of the contracting activity. The official stated that VA's revised target completion date for this effort is September 30, 2019. We will continue to monitor VA's efforts to address this part of the recommendation. For section 15(k)(11), related to advise on in-sourcing, as of January 18, 2018, VA updated its Small Business Procurement Review Program Policy to include language about the role of the OSDBU as it relates to the requirements for section 15(k)(11). A VA official also stated that the policy was distributed by email to VA's acquisition workforce and was also posted to the agency's intranet on February 12, 2018. The official stated that this policy has been distributed to OSDBU staff and provided a copy to GAO. The information provided is sufficient to close as implemented this part of the recommendation.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Director of the Office of Personnel Management should comply with sections 15(k)(2), (k)(8), and (k)(17) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Office of Personnel Management
Status: Open

Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

Recommendation: To address demonstrated noncompliance with section 15(k) of the Small Business Act, as amended, the Commissioner of the Social Security Administration should comply with sections 15(k)(2), (k)(3), (k)(6), (k)(8), (k)(11), and (k)(15) or report to Congress on why the agency has not complied, including seeking any statutory flexibilities or exceptions believed appropriate.

Agency: Social Security Administration
Status: Open

Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

Recommendation: To ensure consistent implementation of the Buy Indian Act procurement authority across the agencies and to enhance oversight of implementation of the Act at regional offices, the Secretaries of the Interior and Health and Human Services should direct the Bureau of Indian Affairs and Indian Health Service respectively, to clarify and codify their policies related to the priority for use of the Buy Indian Act, including whether the Buy Indian Act should be used before other set-aside programs.

Agency: Department of Health and Human Services
Status: Open

Comments: The Department of Health and Human Services concurred with this recommendation. The Indian Health Service (IHS) informed GAO that in order to clarify and codify the policies related to priority for use of the Buy Indian Act, formal rulemaking was required. IHS published the intent to promulgate the regulation in the Fall 2019 and Spring 2020 Unified Agendas. According to IHS officials, the timeline for completion of the new regulation is December 31, 2020.

Recommendation: To ensure consistent implementation of the Buy Indian Act procurement authority across the agencies and to enhance oversight of implementation of the Act at regional offices, the Secretaries of the Interior and Health and Human Services should direct the Bureau of Indian Affairs and Indian Health Service respectively, to collect data on regional offices' implementation of key requirements, such as challenges to self-certification.

Agency: Department of Health and Human Services
Status: Open

Comments: The Department of Health and Human Services concurred with this recommendation. The Indian Health Service (IHS) informed GAO that in order to clarify and codify policies related to priority for use of the Buy Indian Act, formal rulemaking was required. IHS published the intent to promulgate the regulation in the Fall 2019 and Spring 2020 Unified Agendas. Further, the officials stated that once the new Buy Indian regulation is promulgated, IHS plans to identify a plan to collect data on area office implementation of key policy requirements, including monitoring authentication of contractor credentials. According to IHS officials, due to limitations within the Federal Procurement Data System- Next Generation IHS is unable to collect the necessary data until the rule is promulgated.

Recommendation: To help mitigate confusion about the use of reverse auctions in federal acquisitions, the Director of the Office of Management and Budget should take steps to amend the FAR to address agencies' use of reverse auctions.

Agency: Executive Office of the President: Office of Management and Budget
Status: Open
Priority recommendation

Comments: In providing comments on this report, OMB generally concurred with this recommendation. The FAR Council members issued a timetable in Spring 2020 for the proposed regulatory changes to address the use of reverse auctions in response to GAO's recommendations and 2015 guidance released by the Office of Federal Procurement Policy (OFPP). The notice of proposed rulemaking was planned for August 2020. As of August 10, 2020, the notice of proposed rulemaking had not been published. OMB officials did not provide a revised date when they planned to publish the notice.