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Shrinking the FAR

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Read this artical about OFPP's vision to improve Federal acquisitions this morning.

http://www.federalnewsradio.com/?nid=65&sid=3755979&pid=0&page=1

The last part of the article intrigued me, shrinking the FAR.

I’m all for less regulations and more room to think and get things done creatively. My concern is that it seems every time a regulation is taken away, it seems a new regulation is established.

Guess we’ll have to wait and see, but it looks like this vision is a positive one, based solely on this article.

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I think if the FAR was shrunk, it would only result in the various government agencies increasing the size of their supplement in order to cover what was removed.

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It would be nice if OFPP and the CAO Council released a report summarizing all the suggestions that were provided in response to their request for industry's ideas . I suspect that there were a lot of good thoughts left on the table, including ones on how the FAR could be improved.

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We don't need to hear from OFPP and the CAO Council. Assuming that we have to keep any parts, subparts, sections, and subsections that are expressly required to implement statute, what would you cut?

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[W]hat would you cut?

FAR 15.408, Table 15-2 I.A.(8) asks the offeror to disclose if its proposal is not consistent with FAR 31 cost principles. FAR 52.215-12(a) requires prime contractors to require subcontractors to submit certified cost or pricing data in accordance with Table 15-2. However, I have never seen a subcontractor disclose that its FFP proposal is inconsistent with FAR 31 cost principles. Any inconsistencies are handled in negotiations.

When I first saw the above question, I thought, "Table 15-2", but then I thought about what could happen if there was not a standard format. GAO issued an interesting report in April 2014 on "Reexamining Regulations" http://www.gao.gov/assets/670/662517.pdf. My concern is that Table 15-2 is part of those regulations being re-examined with the Better Buying Power initiatives and government budget constraints.

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Thanks for sharing your "concern" in your response to me, but I asked what you would cut. So... what would you cut?

Let me give you an example to show you what I mean: I would cut anything that is not a statutory or policy mandate or prohibition. I don't think they should try to make the FAR a half-baked textbook for the clueless. So, for instance, I would cut 16.101, 16.103(a) through ( c), 16.104, 16.201, and 16.202-1, etc. In my way of thinking, if you don't know what a fixed-price contract is and when to use one, then you shouldn't be selecting a contract type or even thinking about it. If you need to learn those things, then you should read a solid textbook about contract pricing and receive on-the-job training.

Get it? Now... what would you cut? No need to respond if you wouldn't cut anything or can't think of anything to cut.

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Get it? Now... what would you cut? No need to respond if you wouldn't cut anything or can't think of anything to cut.

Yes, Thank You, Vern. :) I would cut FAR 15.404-3( b ) for sure. Based on this paragraph at least some auditors think that prime contractors have to "comply" with the FAR to perform price/cost analysis (outside of a contract provision). I would also cut DFARS 244.402(a). Based on this paragraph at least some prime contractors mistakenly assume they have final authority to determine subcontract commerciality irrespective of what the government contracting officer says. DFARS case 2000-D028 shows otherwise on the first page at the bottom of the middle column (http://www.federalregister.com/Browse/Document/usa/na/fr/2002/5/31/02-13358).

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You pose a good question Vern, and one that I have been asking for the past 3 years as I have been listening to people complain about the FAR. So...to answer your question...I would start with:

The entirety of subchapter D. This could be more abridged, less perscriptive, or left for each agencies and OMB to determine. Leave the solical policy to OMB, and allow that social policy to reflect each administration rather than the collective codification of 40 year whims based on politics and the impression of actually doing something.

I would want to think about Subchapter F. My gut it telling me to get that out too, or at least some of them. There is no need for FAR Part 39 as there is nothing in their that is useful. That can be managed by Federal CIO Guidance, so there is little need for codification. Far Part 34 may be covered under PMI principles. I would want to think of the others.

I would also get rid of FAR part 15.404-1(B )-(g), 15.202-2, & 15.404-4 because they appear to me to be parts that could be passed along via mentoring, experience, and education.

I would adjust upward the threasholds associated with 5.101 and reporting and publicizing.

I would simplify FAR Part 13 as there is little simply too many hoops to jump through for something freakin' simple. Specifically I would do the same as Part 5 and adjust the notification threasholds northward fairly substancially so that COs can make simple buys, document why, and move on. Let the IGs sort out when something dumb has occured.

Further, I would claw back the competition rules and go back to the solicit three rather than receive three in FAR Part 8 for no other reason than for maximim flexibility for COs.

This brings up a point that I would be interested in others' prespectives. Has the FAR become more definitized and descriptive because of the DFARS application and codification into the FAR? DOD had the receive three rule before it applied to the FAR. How much of the added language is due to DFARS rather than the CAO Council? I feel these folks sit in a room, talk about what each other has added, and then add what the others did with regards to internal guidnace.

Lastly, and this doesn't have anything to do with FAR but more to do with OFPP, I would eliminate the business course requirements. There is no evidence that COs have been making better business decisions since the inception of this rule. Further, if you accept the logic of that rule, then you will also require that everyone doing IT contracting also have a degree in computer science, everyone doing engineering contracting a degree in engineering (god help us...), etc...

How is that for a start? I have seen NOBODY involved in federal contracting from the federal end (other than Vern and now InNeedOfWisdom) make specific suggestions as to what to change. This is in part because the call to change are coming from people who don't understand FAR to begin with, so this is an insiders take on what we could get rid of.

JJ

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What goes around comes around. The FAR was promulgated in great part, from my memory, to provide some consistency in Federal acquisition practices and procedures. And , from my memory, those were huge complaints by industry.

"I would also get rid of FAR part 15.404-1( B )-(g), 15.202-2, & 15.404-4 because they appear to me to be parts that could be passed along via mentoring, experience, and education."

"Mentoring" and "experience" by whom??? Those folks (dinosaurs) that Vern Edwards has been railing about for some time now, who pass down superseded policy or just plain ignorant advice? A recent thread pretty well took the quality of acquisition education to task...

I can imagine the hodge podge of individual agency variants that the large industry participants would have to wade through to contract with across the government. The variation in approaches is bad enough now even within certain DoD agencies, according to complaints that we heard from industry back in the mid 2000's during a series of nation-wide Town-Hall industry symposiums that we conducted for a 60 Billion dollar Army Transformation Program.

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OK...I mean't 15.404-2 not 15.202-4. My point is that the information contained in the FAR part 15 within are informational (definitional?), not regulatory. Take the informational out, leave the prescriptive regulations in, and supplement the informational within the federal educational structure, whether formal or informal.

The point with Subsection D...social goals are additive over time. When was a social goal stripped from the FAR? You may know better than I. It is the additive nature that prescribes that makes FAR burdensome? Also, why aren't there sunset provisions related to social goals and FAR? In other words, does social position x result in social outcome y? If social position x doesn't result in social outcome y, then why keep it embedded in acquisition regulations? Because it would not be politically expedient to take it out.

I said that this is what I would take out to get the conversation going....I didn't mean to imply that anything I said was a really good idea. Your response indicates that everything there in the FAR today is purposeful. You may be right Joel. In which case there is no need to change FAR (I actually find people who complain about the FAR don't know the FAR - re: other posts). If, however, you did want to streamline and strip FAR, what would you take out? Not tinker around the edges, but eliminate completely.

My premise is that if you want to change the FAR, one approach would be to take out everything information, and most everything related to social goals. That will never happen, as we all know. There isn't much to eliminate, because much of it is purposeful, therefore the subject becomes moot.

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Reformers can start by using the active voice instead of the passive voice and writing it as one would converse throughout the Book. That would significantly simplify and condense the FAR

FAR Parts 25 and 45 are unreadable and unintelligible to anyone but a Philadelphia Lawyer.

When we included the full text clauses in construction contracts, they consumed over one hundred twenty five pages and that was before the current Administration. Most of them have little or nothing to do with construction contracting or pricing or risk allocation. It is easy to reference clauses because you have little or no idea how much BS you add to a solicitation.

Industry input to the new OFPP Administrator seems to have prompted the latest initiative. I'm not sure she ever had to negotiate or administer a government contract either. I also suspect that industry would like to be able to price contracts strictly on the basis of supply and demand with little government knowledge of what really constitutes " fair and reasonable" pricing.

From many of the threads in this forum, it appears to me that there isn't much knowledge or ability to understand much of what are in contracts now or much expertise in real negotiating or bargaining for good deals. Negotiating complex change orders or truly understanding the intricacies of claims, delays, impacts? If it ain't literally written somewhere in FAR, many are lost. Many don't care to understand the background , spirit or intent of some of the most basic aspects of the regulations.

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I'd go through the 125 pages of clauses and try to eliminate the non-essential and outdated and/or redundant ones.

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I have been away from this thread for a while, and I'd like to return to my earlier comment (which Vern seems to have discarded). Ms. Rung based her "vision" memo, in part, on suggestions provided by industry in response to a public request from the CAO Council and OFPP that was published in the Federal register many months ago ( referred to as the "open dialog with Industry"). Apparantly, there were a sufficient number of comments submitted that commented on the complexity of Federal acquisition to elicit Ms. Rung's interest in addressing "regulatory burdens". There is, of course, much much more to "acquisition complexity" than the FAR. However, since this thread is on that subject I thought it would be interesting to hear what industry actually had to say on the matter- not just OFPP's translation. My memory is that the suggestions for improvement were a bit more sophisticated than "shrinking the FAR". For example,submitted comments noted that there are portions of the FAR that are a hodge- podge of policy and procedural "bolt ons" resulting from years of legislative and executive tinkering. When looked at as a whole, the covered topics are disorganized, difficult to understand, and in some cases intellectually suspect. There are other portions of the FAR that are reflective of an acquisition focus more significant for 1960s than today. There are parts of the rule that are so out-dated that no one pays any attention to any more. there are statements in the FAR that are just plain wrong. And, as others have pointed out, the FAR is never quite sure whether it is a regulatory document or an informational guide. If it is to be the former, then "shrinking" is a definite possibility. In short, there is much on the FAR that is good, well thought out, and useful. However, the industry comments would indicate that it is time to give the document a fresh look. I applaud Ms. Rung's willingness to consider at least some of these issues. Unfortunately, she has tasked the wrong organizations with the task.

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For example,submitted comments noted that there are portions of the FAR that are a hodge- podge of policy and procedural "bolt ons" resulting from years of legislative and executive tinkering. When looked at as a whole, the covered topics are disorganized, difficult to understand, and in some cases intellectually suspect. There are other portions of the FAR that are reflective of an acquisition focus more significant for 1960s than today. There are parts of the rule that are so out-dated that no one pays any attention to any more. there are statements in the FAR that are just plain wrong. And, as others have pointed out, the FAR is never quite sure whether it is a regulatory document or an informational guide.

odessa:

You appear to want a FAR rewrite. If so, then let me tell you in no uncertain terms that a project to rewrite the FAR in order to eliminate the problems that you described in the above quote will take forever and then fail and fail miserably. The acquisition policy staff in the government are incapable of it. The best thing we can do is cut stuff.

We tried a rewrite of FAR Part 15 back in the mid 1990s that culminated in the FAR Part 15 Rewrite. That took two years and failed to produce any clarification or simplification in the source selection regulations and process. Now try to imagine taking on the entire regulation. Acquisition is hidebound, memo-prone, and leaderless.

A scholar named Aaron Wildavsky showed us that the government is incapable of taking on such projects and that it proceeds best by making ad hoc incremental adjustments. Let's get rid of the junk. Then, they can try to take on what's left a section at a time, if they're capable, which I do not believe.

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In reading this thread, and in an advance request to Joel that I may have a Joel..esk moment I am reminded of the early 1980's, I was full of energy and enthusiastic about the world of acquisition and of the initiative of creating the FAR and leaving the FPR and ASPR behind. I read every Federal Register, spent many hours writing letters to Congress, the Administration and to the council regarding the proposed new regulation and attempted to engage then seasoned contract specialists in the agency I worked with to join in. Their collective comment, "It will never happen and you are wasting your time!"

I do not have the energy for such an effort these days probably but as already noted in part the collective dialog on all topics in the WIFCON forum are scattered with statements of the conflicts and confusion of the FAR. Again as noted some are related to the inexperience and inability or even the lack of want to actually know the FAR, others are because the FAR is and can be confusing.

For me attempting to cherry pick a certain part without considering the whole is a total waste of time and by example it happens almost every day through FAC issuance and it has not helped one bit!

A rewrite is in order and until that is where the energy is dedicated so that it does happen in a timely manner any discussion about effort otherwise is rhetoric.

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I was full of energy and enthusiastic about the world of acquisition and of the initiative of creating the FAR and leaving the FPR and ASPR behind. I read every Federal Register, spent many hours writing letters to Congress, the Administration and to the council regarding the proposed new regulation and attempted to engage then seasoned contract specialists in the agency I worked with to join in. Their collective comment, "It will never happen and you are wasting your time!"

You were wasting your time. The proof of that is that you're calling for a rewrite.

There will not be-- indeed, there cannot be -- a complete FAR rewrite.

The FAR was not a rewrite and it was not new when it was published. It was developed by the FAR Project Office, under Colonel John Slinkard of the Air Force, by tweeking the language of the Defense Acquisition Regulation (DAR), which, until 1978, had been the Armed Services Procurement Regulation (ASPR). (That's why, for example, the late proposal rule in FAR 52.215-1, paragraph (c )(3)(ii)(A)(2) uses the phrase "Government installation," which is entirely inappropriate for most civilian agencies.) Anyone who knew the old regulation and studied the new regulation when it was finally published in September 1983 immediately recognized that there had been no wholesale change. Some of the FAR language dates back to the 1950s. The FAR was not a new thing. It was the old thing with patches and new paint here and there. The only thing about the FAR that was significantly new was the packaging.

Our government is not staffed to take on a FAR rewrite, and I'm talking about a lack of knowhow and talent, not numbers of people. It does not have enough acquisition people who know enough or who can write well enough to take it on and produce real improvement. Even the FAR Project Office, staffed with some smart people under a hard charging manager like John Slinkard, took eight years to pull off what was essentially a cut-paste-and-patch job -- from 1978, when OMB launched it (see 43 Fed. Reg. 9545, March 8, 1978), until its "initial operational capability" in November 1983. The following is from that original public announcement:

The objective of the OFPP project is to replace the Armed Services Procurement Regulation, the Federal Procurement Regulation and the National Aeronautics and Space Administration Procurement Regulation with a single, uniform regulation to be called the Federal Acquisition Regulation (FAR). The fundamental purpose is to reduce the proliferation of regulations; eliminate conflicts, redundancies, and inconsistencies; provide a regulation that is simple, clear, and understandable; provide one face to industry; and eliminate unnecessary burdens on the economy, organizations, and individuals.

Oh, boy -- that really got done, didn't it. The FAR (in the PDF edition) is 1,895 pages long. The DFARS and the PGI together come to 1,956 pages. DOD alone has promulgated more regulation than is in the FAR. And that doesn't include all the other stuff -- directives, deviations, policy memos, etc.

No amount of idealistic yearning will bring about the rewrite that some of you want. And even if there were a rewrite of some kind, and even if it could be done in 10 years (which is probably how long it would take given that the FAR is a lot bigger now than in 1984), the result would be a mess.

Incremental change, beginning with judicious cuts, is the only realistic way it can go. What would be a "total waste of time" would be a real attempt to rewrite the FAR. It would be not only a total waste of time, it would be a catastrophe. It would spawn a decade or more of litigation.

I have seen two attempts to produce a new regulation -- on the part of the Postal Service in 1986 and the Federal Aviation Administration thereafter. Neither was especially successful.

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I was not suggesting a FAR rewrite. In fact I agree that a wholesale revision of the document is impractical and, perhaps, unnecessary. I was suggesting that it needed a good "spring cleaning". This could be done incrementally and it could include the deletion of materials no longer neccessary or appropriate to a regulatory document. One approach would be to identfy a limited number of priority issues to tackle based on a survey asking the Federal and private sector to identify sections that are: confusing, inconsistent, incomplete, outdated, poorly or illogically constructed, contain incorrect or innacurate statements, better handled through non-regulatory guidance or information, or reflective of poor judgment or misapplied principles. Vern, after teaching so many courses on the FAR you could undoubtedly identify the high priority areas in short order.

This, to me, is a far simpler initiative than a true rewrite. And simpler than attempting to delete large portions of the regulation. That effort makes little sense to me without tackling a much bigger issue- the source of most of the "stuff" that makes the acquisition system the complex, costly, and incomprehensible system that it is.

Additionally, I don't agree that there aren't talented individuals in the Government's workforce capable of taking on the project (s). The problem, I suspect, is the system under which they operate. Having had some interaction with the DARC, the CAAC, and the FARC over the years, I can tell you that the regulatory development process is anything but efficient. That is something that would indeed benefit from a "rewrite".

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odessa:

All I can tell you is this: After a number of conflicting GAO and Court of Federal Claims protest decisions I tried to persuade the councils to fix the late proposals rule, FAR 52.215-1(c )(3). In fact, two years ago at a public forum I told the OFPP administrator to his face and in no uncertain terms that failure to fix it, which would be very simple, is an illustration of just how screwed up the regulatory process is. What happened?

Nothing. Absolutely nothing.

Having said that, your proposal is better than a rewrite. Now, how are you going to go about persuading anyone to adopt it? Are you willing to write an article for NCMA's Contract Management magazine?

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I am disappointed that my mentor of the early 1980's now states that my efforts were a waste of time.

Beyond this personal impact I find it interesting that a clause and its wording, FAR 52-215-1, would be used as an illustrative example of the problems of the FAR when the clause in question has had many changes made to it since its creation. Very poor example because if the wording is archaic then write a letter when it is next considered for changes and tell them so!

In any discussion of the misgivings of the FAR I will advocate for the rewrite, inclusive of adequate funding, adequately staffed and with a realistic timeframe, rather than cherry picking changes via FACS, supplements, policies and associated regulations, has not worked. 30 years has proven that!

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125 pages? Which edition of the FAR are you looking at?

I no longer have access to a Section 00 72 00 Contract Clauses used in an actual construction contract. I have a 2012 version of a Table of Contents for a specifier to use when developing a design-build construction RFP. The TOC was developed as part of a Model RFP using a Wizard Program. At any rate, the Table of Contents only lists the applicable FAR and DFARS construction contract clause numbers and their titles. That document is 16 pages long. (8 1/2 X 11 sheets)! That doesnt even include the 12 or so clauses that we specifically developed to define the unique roles, responsibilities and risk allocation for design-build contracts. Those clauses went in a relatively short section after the construction contract clauses.

We published a Draft Model RFP for Industry Comments in 2005-2006. The Corps was going to standardize the Model RFP for the 60 Billion dollar +/- Army Transformation program. The Corps policy has traditionally been to publish the full text of the clauses in their solicitations and contracts.

Several firms complained that the Clause section was approximately 125 page long and that it was near the beginning of the draft RFP (Division 00). They said it was so distracting and daunting that it stifled the intent of the Model RFP to induce more non-government contractors to compete for this large construction program. The program was up to 6 times the size of the normal annual Army MILCON Program for 5-6 years, so the Army wanted more industry participation in addition to standardization.

Being one of the Model RFP developers, I desparately tried to get the Corps to only print the TOC version in the Body of the RFP, in lieu of the full body of the text. The full clauses could go into an appendix at the end, so as to make the RFP easier to read and focus on the meat of the project. Of course, that would be unheard of because "the clauses always go in Division 00" and they disapproved my request. 125 pages...much of which is government policy and restatement of laws that could be referenced on a single Web page somewhere.

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Better Aragon than Dante: "Lasciate ogne speranza, voi ch'intrate"...though when considering the prospects we may indeed find ourselves in a sort of perpetual procurement purgatory without Virgil as our guide.

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