President Trump’s personal involvement negotiating contracts for the military could open the department up to legal problems if he’s not careful to understand and respect the intricacies of the acquisition process, which are designed to ensure a fair playing field.
Trump has met personally with CEOs from both Lockheed Martin, which manufactures the F-35, and Boeing, which makes the F/A-18 Super Hornet and is building two new Air Force One planes. Most recently, Trump claimed that by spending an hour with Boeing officials he was able to bring the price tag for the Air Force One planes down by $1 billion.
In doing so, he is jumping several rungs in the chain of command beyond the defense secretary, deputy defense secretary, undersecretary for acquisition and service secretary, down directly to the program manager level, said Todd Harrison, the director of defense budget analysis at the Center for Strategic and International Studies.
“I just can’t recall a time when this has happened before,” Harrison said. “That’s something that DoD is going to have to come to grips with, because this is not how defense acquisition operates. I think it’s going to complicate things for program managers and senior civilian leadership.”
In one example of bucking the traditional hierarchy, Trump called Lt. Gen. Chris Bogdan, the head of the F-35 program office, directly twice in January to discuss the program, which Trump has criticized as too expensive. Some on Capitol Hill had no issue with the breach in protocol.
“There’s been some media reports that the president has called you directly and that that’s a break in the chain of command. I know having spoken to you personally that you’re up to the task, and I’m glad he picks up the phone and calls you,” Rep. Mike Turner, R-Ohio, said at a Feb. 16 hearing.
But Bogdan confirmed to Congress that Trump invited Dennis Muilenburg, the Boeing CEO, to listen in on one of the phone calls, which discussed the platform being built by Boeing’s competitor, Lockheed Martin. Things like this that create the perception of favoring one side or of tipping the scales in one direction could get the government in trouble and open up the possibility of contract award protests, Harrison said.
“It’s muddying the waters. There are strict standards for the way defense acquisitions are supposed to be handled, especially with competitive and sensitive information,” he said. “Some of these actions could be violating that, those processes and regulations. So I think they have to be really careful here that they don’t create a bigger mess down the road.”
Richard Aboulafia, the vice president of analysis at the Teal Group, also said that things like having Boeing on the call about another contractor’s program could get into “areas of dubious legality or optics.”
“There’s a reason we have a procurement system in place. A lot of hard-working people do things that are transparent and legal. You start short-circuiting that process, you’re opening up the system to a whole host of legal complaints,” Aboulafia said.
Lawmakers tried to cut down on the number of contract award protests in the fiscal 2017 National Defense Authorization Act, because it both costs the government money to evaluate the protests and slows down the start of a new program. Members of the House Armed Services Committee debated fining companies if they initiate a protest and lose, but the proposal did not make it into the final bill.
Aboulafia also noted that Trump’s promise to “drain the swamp” could actually get rid of many career acquisition professionals who understand the intricacies of the system and work hard to keep prices low.
“You get rid of a lot of hard-working people who actually do the hard job of holding contractors accountable,” he said. “That’s the most dangerous and debilitating aspect.”
