SES Reform: Accountability or Politics?

The House Oversight and Government Reform Committee approved the “Senior Executive Service Accountability Act” that, if approved by the full House, the Senate and the President, would significantly change conditions of employment for members of the Senior Executive Service (SES). When we see a new bill to “reform” the civil service in any way, we always need to ask, “are you a good bill or a bad bill?” In this case, is the bill really about improving accountability or is it an exercise in politics. I believe the answer is a little of both. Let’s go through the provisions of the bill and see what the effects would be.

  • Modification of Pay Retention for Senior Executive Service Members Removed for Under Performance. Currently, when an SES member is downgraded based upon performance, s/he is granted pay retention. That means you can perform badly, get downgraded, and still make SES pay for doing GS-15 work. When the same thing happens to a GS employee, s/he suffers a pay reduction to anywhere from the first to the 10th step of the pay grade to which demoted. The SES provision has been a bit of a sweet deal that probably should go away. This provision takes away the pay retention and pays them for the grade level they are going to. Verdict on this one: Accountability
  • Requirement that Performance Requirements be Established in Advance. This provision mandates performance standards be in place at least 30 days before the beginning of the performance rating cycle. In theory, it sounds good. In practice, virtually no one in government and most people in the private sector do not have performance standards in place a month before the previous rating cycle has ended. There is little, if any, benefit to be gained from this requirement. In fact, because much of what may be in the standards is based upon what is doable within the budget, and the Congress hasn’t passed a budget before the beginning of the fiscal year in many years, this requirement will result in no benefit. Verdict on this one: Politics
  • Biennial Justification of Positions. This provision would require agencies to justify all of their SES positions, including how the position will affect the agency mission, every 2 years. Doing so would add a significant bureaucratic requirement that is likely to result in nothing. Most agencies have SES positions running key organizations. Absent changes to those organizations, the position requirements do not change often. The verdict on this one: Politics
  • Extension of Probationary Period. Currently the SES probationary period is one year, during which the SES member can be removed quickly and easily with little means of challenging it. The same probationary period applies to most other Federal employees. An argument can be made that the type of work SES members do takes longer to assess and makes a longer probationary period a sound idea. Verdict: Accountability
  • Suspensions for 14 Days or Less. Currently SES members may be suspended for 15 days or more, but shorter suspensions are not allowed. This provision changes that to allow shorter suspensions. The addition of suspensions for 14 days or less may make agencies more likely to deal with conduct issues, although there is no evidence that it will happen. This one is close, but the verdict is: Accountability
  • Removal to “Promote the Efficiency of the Service.” This change deletes “misconduct” as a reason for removing SES and adds “efficiency of the service. The change brings the SES more in line with law that covers the rest of the workforce. Verdict on this one: Accountability
  • Mandatory Leave. This provision would (a) require SES members to take annual leave during the notice period prior to being removed and (b) prohibit them from accruing more leave during that time. It provides that the leave would be restored if the removal were later reversed. This is a bit of a guilty until proven innocent provision that appears to serve no useful purpose. Verdict: Politics

With 4 items being related to accountability and 3 related to politics, the bill tilts more toward accountability. If the 3 political provisions were removed, it could make it possible for agencies to more easily hold SES members more accountable for conduct and performance. That says nothing about whether agencies would actually use that authority. Our experience with probationary periods for SES and other employees does not lead me to believe we will suddenly see a rash of firings. As I said in my June 25th post, firing people is not the cure-all that some people think it is anyway. Overall, this bill is a vast improvement over the bill the House previously passed that would allow the Secretary of Veterans Affairs to fire SES members, “notwithstanding any other provision of law.


Putting a Contract Out on Good Ideas

One of the things bad guys used to do in crime movies was “put a contract out” on someone. Those contracts were not to buy something, they meant hiring someone to kill a person. I was reminded of that phrase when I read a Federal Times article quoting former Defense Secretary Robert Gates. Secretary Gates was discussing IT procurement in the Federal government and said “A sclerotic federal contracting system is not a good match for the fast-evolving information world.”
Becoming rigid and unresponsive; losing the ability to adapt
His concerns about the contracting system being unresponsive, rigid and not adaptable were right on target, but they do not apply solely to information technology procurement. As it is currently structured, the Federal contracting process does not appear to serve anyone particularly well. In fact, the contracting processs is where good ideas often go to die. Many people in government dread dealing with the process because they know they often get nothing like they intended from the process. In effect, we “put out a contract” on the idea and kill it.If a process is cursed by so many people, obviously there is someone who is happy with it and driving it. Right? Not really. I spent nine years running HR for the Defense Logistics Agency. DLA is one of the largest buying agencies in government, with more than 3,000 GS-1102 Contract Specialists. DLA’s contracts staff is superb. They have great training, dedication to the mission, and the resources they need to award over 8,000 contracts and task orders a day. Yet, when I talked with them I found a high level of frustration with the processes they had to use. The Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Supplement (DFARS) are too complex, require too much training to administer, and tilt far (no pun intended) more toward ensuring compliance than flexibility. As the face of the FAR and DFARS, contract specialists bear the brunt of the criticism from agency staff and vendors, yet they are not the reason for the problems. Many of them have not been given the level of training they need and most of them are doing the best they can in a bad system.Agency program managers are generally even less satisfied with the contracting process. Awarding a contract to get work done often requires lengthy documents, estimates of costs that the program managers often cannot deliver without going through the process first to see what the market is charging for those services, and evaluation criteria that are sometimes driven more by convenience than what program managers actually need. Some agencies allow program managers to talk with the firms who are bidding on work. Others say no way. Some encourage extensive program manager involvement in the process, others do not. As a former Fed with 33 years in government, I have to admit I dreaded the contracting slog every time I needed to buy services. It was a maddening process that rarely turned out the way I would have liked.It’s no better on the industry side of the contracting process. Small businesses argue that the scales are tipped against them. Large firms argue that all the good work is going to small business, and mid-sized firms are left in the middle with few people advocating on their behalf. Proposal writers have to deal with Statements of Work and evaluation criteria that often appear to be written on different planets, solicitations that expect responses within a few days, responses to questions that say nothing informative, and amendments that can change everything at the last minute after days of work. Add to that the all-too-frequent solicitations that firms invest thousands or even millions of dollars responding to, only to see them canceled at the last minute without so much as a “sorry about that” from the agency. And – worst of all, some agencies believe talking to firms that might be bidding on work is bad, because they might get information that would help them in the process. The thinking is that if others do not get the same information at the same time, the government is providing an advantage. Rather than comng up with ways to provide more and better information that will lead to better, more complete and more responsive proposals, the government clams up. Think about that. Is that really the way to make the contracting process better?Since it does not appear many people are happy with the process, what is the answer? Some people argue we should use the normal contracting process for routine work, but for high priority programs we should devise new processes that are outside the normal rules. Given the billions of dollars that are invested in so-called routine work, I think that is not the solution. Why have better processes for highly visible work, but a “sclerotic” process for the programs where most of the money is spent? Much like our government human capital programs, our contracting regulations are the product of many years of iterative work.That type of policy development leads to processes that were not designed by anyone – they just happened over a period of decades. In the end, we get a collection of rules and regulations no one would design if they started over, but everyone feels we are stuck with now. The best solution is a rethinking of the contracting process from the ground up, but that is not likely to happen in our current political climate. In the interim, we should learn from the lessons of agencies that are more flexible in their administration of the FAR and DFARS. We should also recognize that good ideas come from government and industry and academia and the non-profit sectors. One set of good ideas is included in a report issued by the Professional Services Council. If representatives of every sector participate, we should be able to use regulatory changes to improve the contracting process enough that it becomes responsive to agency needs, protects the public interest in a fair and open contracting process, and allows industry to have the information it needs to be responsive and deliver best value services to government.