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Defending the FAR

NCMAExecutiveDirector

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(Adapted from Federal Times post dated November 24, 2014.)

Acquisition reform discussions are again in full swing. Everyone agrees there is room for improvement in contractor-dependent government services and mission. But no consensus exists on what sort of improvement we need. We know that products and service delivery can take too long, don't always meet intent, and don’t satisfy everyone involved. Thus, as occurs whenever this topic arises, many will recommend solutions involving changes to the Federal Acquisition Regulation (FAR), if not scrapping it altogether. After all, it’s the principal regulation governing management of federal contracting, as well as a guide relied on in many other sectors (e.g., state and local government), so it clearly plays a very important role in the process. Collect some comments, draft language, pass a statute, flow down changes to the regulation, and we could relatively quickly once again declare victory—assuming that contracting managers follow prescriptive FAR-mandated behavior precluding independent business judgment and common-sense discretion and only need new guidance to succeed!

On December 4th, the Office of Federal Procurement Policy issued a memorandum to all Chief Acquisition Officers and SPEs titled “Transforming the Marketplace: Simplifying Federal Procurement to Improve Performance, Drive Innovation, and Increase Savings.” Among many admirable goals within the memo (Category Management, Driving Innovation, Stronger Relationships, etc) is one called “Removing Regulatory Barriers to Innovation,” which focuses reviewing FAR and agency level regulations generating the greatest reporting burdens or unnecessary restrictions that keep new, innovative companies from entering the Federal marketplace. The memo requires “steps to identify and remove or revise any outdated regulations.”

This is a proper, measured and specific approach to those that believe the FAR to over prescriptive, onerous, complicated and unnecessary. New laws and FAR regulation mandating incremental, tactical improvements to whatever today’s problem is perceived to be, or laying responsibility for those problems with the FAR itself, is misplaced. While incremental improvement may come through changes to the FAR, this road has been well-traveled before and the “low-hanging fruit” largely already picked.

The FAR is actually a very practical, understandable, usable, flexible, actionable, and surprisingly resilient regulation. To recall the old Carnac the Magnificent skits, “everything you ever wanted to know” and do is available through the FAR. In fact, agencies with authority to waive FAR requirements largely follow it anyway because it’s such a great and flexible regulation that’s used to buy the vast majority and variety of products and services required by government today. The FAR is adaptable to current government mission requirements and business trends in e-commerce, technology, and weapon systems and services. From cloud computing to future smart phone business transactions, almost anything can be met through the acquisition structure provided in the FAR. In short, the FAR is not the problem.

So let’s not again become distracted in our attempt to improve government acquisition through a focus on the FAR, but instead listen to what government and industry contracting executives actually doing the work are saying. We’ll then learn that today’s contracting issues are instead human resource issues; the recruitment, development and retention of contracting managers to perform what is one of the most vital roles in today’s outsourced government. This isn’t a simple FY16 legislative priority, but a long-term strategic one. It includes not only government but industry contracting managers as well, along with academia and professional associations. We must cooperate to develop contracting professionals beginning in their freshman year of college, with recruitment of highly qualified candidates by government and contractor employers before they graduate. Once on the job, they’ll have advanced technical, employer-specific training and long-term, follow-on continuous learning occurring with their peers from all sectors together. Professional competencies and standards must be managed by a professional association representing all relevant stakeholders, coalescing around widely agreed upon qualifications and testing that creates demand and drives early development back into undergraduate education. This would promote transferability between various government and industry sectors. That’s a far cry from today’s agency rules prohibiting government contracting managers from attending external professional development or industry communication forums.

The FAR doesn’t drive poor program outcomes—people do! Anyone who has worked with the FAR will admit that it’s an excellent regulatory framework. Acquisition reform is not FAR reform, but human capital reform. Meanwhile, creating budget and thus program certainty is imperative. Let’s be grateful the FAR can already support a world-class, flexible, and adaptable contracting workforce of the future. Now let’s focus on developing that world-class profession, exhibiting all of the characteristics we expect of other professions. That’s a long way from tweaking or even rewriting the FAR.



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Thank you for a very thoughtful post defending the FAR. It is a very flexible set of regulations. I always like to point out FAR 1.102(d) which states: "The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority." So, this guidance provides a tremendous amount of discretion if we only choose to use it (and remind others of it if necessary).

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Mike, you are correct on one thing: the FAR is not the "problem".It is simply the vehicle. However, as a vehicle it has a number of challenges, and certain aspects of the document could stand a fresh look. So could the mechanisms by which it is issued. If those challenges did not in fact exist, you wouldn't have to be writing an article defending its virtue.

Unfortunately, the "recruitment, retention, and development of contracting managers" isn't the "solution". This has been the mantra of virtually every NCMA head, every OFPP Administrator, and every other talking head in the community for years. I can't think of any componenet of the federal (non-military) workforce that has received as much professional and developmental attention in the last 40 years. Either we have horribly, and repeatedly, bungled the job or we have engaged in self-delusion. I am in the latter camp. When someone eventually writes the history of Government acquisition and contract "reform" I suspect that the most evident theme will be our dogged insistence in cyclically retrying improvement schemes that had little or no impact on the first, second, or third attempt. Perhaps we lack long term memory. Perhpas it is a lack of originality. Perhaps it is an unwillingness to face the obvious.

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