Section 809 Panel and Texting While Driving

For the past couple of days, we've been discussing the activities of the Section 809 Panel (refer to Update on Section 809 Panel). Ultimately, the Panel will be "making recommendations, including actionable changes to regulatory and statutory language, to improve the acquisition process within DoD." For the purposes of the panel, regulations include not only regulations, but executive orders, directives, policies, and procedures as well. The Panel's goal is to take a comprehensive approach to weeding out regulatory and statutory underbrush that gets in the way of the DoD mission and to recommend entirely new pathways for approaching defense acquisition that promotes innovation, agility, and speed across the whole range of goods and services.

Last May, the Panel issued its first interim report that included several "problematic policies and requirements" that it highlighted as case studies of what's wrong the the procurement process. These, the Panel states, represent only a small sample of what bogs down the defense acquisition process. We will discuss one of those items here. For a complete listing, see the Panel's Interim Report Supplement.

Texting While Driving. Back in 2009, the President issued an Executive Order (EO) - Federal Leadership on Reducing Text Messaging While Driving - which included language to encourage contractors to employ practices and policies to ban texting while driving. Eventually, a section was added to FAR (Federal Acquisition Regulations) at 23.11 to implement the EO and a clause was required to be inserted in all contracts. We questioned the need for the  EO and the FAR change at the time (see FAR Now Says You Can't Text While Driving) because even back then, it seemed redundant to what States were already legislating.

The Section 809 Panel noted that since the EO was issued, the norms surrounding cell phone use while driving have evolved, making the provisions of FAR 23.11 and 52.223-18, no longer necessary. DoD already prohibits the use of cell phones while driving on all military installations while 46 states, Washington DC, Puerto Rico, Guan and the U.S. Virgin Islands ban text messaging for all drivers. Because most states and DoD now ban cell phone usage and/or texting while driving, the FAR provisions are no longer necessary and should be deleted, according to the Panel's recommendation.

Although many acquisition regulations, including the prohibition against texting while driving, are designed to further arguably laudable public policy objectives, The Section 809 Panel wishes to emphasize that the aggregate effect of hundreds of similar regulations is costly for DoD.