The recent crash of a quadcopter drone on the grounds of the White House has drawn attention to the absence of final rules from the FAA governing unmanned aircraft – rules that have now been in the works for years.
This one incident almost perfectly encapsulates the difficulty that governments have with keeping pace with changes in technology. Technology can change in a matter of months or even weeks, quickly making it easy and affordable for almost anyone to buy a drone. The process that the government uses to adopt new rules and regulations, that can govern how these newly affordable drones may be used, can take years to become final.
The problem here seems obvious – how can governments hope to keep pace with changes in technology when the processes they use to do their jobs regularly take many months or even years? And this problem is not reserved to how agencies craft and implement new regulations that govern how citizens and businesses use new technologies – it extends to how governments use new technologies themselves.
In a post I wrote last year, I argued that the processes governments use to budget for and buy technology, and to hire employees into IT positions are “built to fail.” Can we make this same criticism of the process by which new federal rules are adopted?
Built to Fail
“The processes that support paying for and acquiring technology, and the process for hiring IT workers are designed in a way that make them a bad match for the dynamics of the technology industry.”
— Built to Fail
The thing that critics of the government procurement process (and other processes used by government to acquire and use technology) often fail to appreciate is that the system largely works as designed.
Governments imbue the procurement process with requirements and other stipulations that they hope will lead to outcomes that are deemed desirable. Each of these requirements adds to the complexity of the process and the burden of firms that choose to respond to government RFPs.
For example, almost every government has purchasing requirements for minority- and women-owned businesses, and many have requirements that local companies receive preference over firms from outside the jurisdiction. The objective is to drive more government procurement dollars to minority- and women-owned businesses and to local businesses that create local jobs and pay local taxes.
There are also larger, overarching values embedded in the procurement process. For example, fairness and transparency are values that inform requirements like the public posting of bids and related materials, ample public notice of vendor meetings, and the clear specification of when and how bids must be submitted.
Risk aversion is another value that impacts the complexity and cost of the public procurement process. It is this value that informs requirements like performance bonds, vendor insurance, scrutiny of company financial statements, and requirements for financial reserves—all things that seek to reduce the risk assumed by governments from engaging with a company to provide a good or service. Each of these requirements can make the procurement process more complex and burdensome for bidders, particularly smaller companies.
These features of the procurement process were designed with a specific intent, and few people would argue with the laudable goals they seek to encourage. Yet, one of the side effects of these requirements is that they make the process slower, more complex, and harder for smaller and more nimble firms to participate in.
It’s possible to make the same criticism of the federal rule making process – the process is designed to be as open, inclusive and deliberative as possible. It also includes a number of different steps to ensure that specific policy objectives are being met. And while I don’t think most people would argue with the desirability of the outcomes each of these additional steps seeks to ensure, it makes the process longer and more complex.
A Question a Balance
“Rushing the regulatory process can result in rules that are burdensome or unfriendly to innovation. ”
— Nick Sinai, Sandboxing And Smart Regulation
Clearly there is a need for change – but how do we ensure speedier outcomes without sacrificing the ideals and objectives that have intentionally been made a part of government processes?
The future of how government regulates technology – and the future of how it makes use of technology itself – will depend on how well we can strike a balance between the need for speedier action by government and the ideals and outcomes we imbue into government processes – most importantly to ensure that they are open, inclusive, fair and deliberative.
Nick Sinai – former U.S. Deputy CTO at the White House – offers some great insights into how the federal government could improve the rule making process to make it more responsive to changes in technology. There are also some interesting experiments happening in cities with changing the process for procuring technology.
But right now, it still feels like were nibbling at the edges of real change. I don’t think enough people in the civic technology space fully appreciate the deliberate nature of the design of the processes that are failing governments so badly right now. These processes largely aren’t broken – they were just designed in a way that typically makes them a bad fit for the pace at which technology changes.
I’m not entirely sure how we fix this, but I don’t think we will unless we acknowledge that some sort of balance needs to be struck. Enabling speedier, more efficient outcomes can’t come at the cost of openness and fairness in these important government processes.