PROVIDING AI SOLUTIONS BEFORE ACQUISITION REGS KEEP UP

Artificial Intelligence (AI) solutions are a top priority among federal IT executives, as well as national security, healthcare, and other sectors.  One federal CIO has said that her agency is focused on “All AI, all the time.”  A quick look at spending numbers also shows a rapid acceleration of dollars spent on AI solutions. Bloomberg Government data suggests that the federal AI market is approaching or exceeding $2 billion annually.  Yet, this is one area where government acquisition rules have yet to be keep up.  There are no AI-related provisions in the Federal Acquisition Regulations (FAR) and a recent review of open FAR cases shows that no AI-specific proposed rules are on the agenda. Many agencies are creating their own patchwork quilt of specific AI use rules, some of which are based on a recent Executive Order (EO) that provides general guidelines on how the current administration believes agencies should use AI.  E.O. 14410 sets forth the Biden administration’s policy to advance and govern the development and use of AI based on eight principles and priorities. These principles direct executive departments and agencies to develop and implement AI that is “safe and secure” while promoting innovation, competition, and collaboration.  Privacy and civil liberty protections are also identified as being important.  These, however, are broad policy-based guidelines and lack specificity on how each federal office may actually acquire and use AI solutions.  The EO directs the Office of Management and Budget (OMB) to issue guidance to agencies regarding the use of AI in the federal government, including requiring that each agency designates a chief AI officer, but does not stipulate the development of AI-related acquisition rules.  Contractors and their agency customers will essentially to have feel their way through fog of what constitutes acceptable AI acquisition and use.  This could be frustrating as there will likely be a myriad of standards.  Contractors should also keep in mind that they are always at the low rung on the accountability ladder, meaning that everything comes down on them from the top.  Proceed accordingly.