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Deaner

Shrinking the FAR

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The only hope for the future lies in the possibility of the emergence of a class of working level acquisition thinkers and writers -- people who will generate, publish, assess, and publicly debate ideas at a high level of thought, expression, and discourse, and who will ruthlessly shame the policy makers by publicly calling them out for their half-baked reform initiatives. I'm talking about people who will be smart enough to see through junk like performance-based contracting and tiresome refreshes like "Better Buying Power." People who will be beyond asking, for the umpteenth time, whether you can exercise an option on a task order after the underlying contract has expired.

I have encouraged contract specialists to think and write, largely to no avail. A 1,500 word essay is beyond the capacity of most of them. How could anyone expect such people to improve the FAR? I can't even get people to suggest cuts.

Here are some simplification ideas for the idea-impoverished:

1. Let's cut the FAR coverage of policies that are the province of other agencies, like the small business rules and the labor laws. Let's cut big chunks of FAR Part 19 and almost all of FAR Part 22 and, instead, insert hyperlinks to SBA's and DoL's titles in the CFR. All the FAR should say about those things is that those agencies make those policies and government acquisition personnel must comply with them.

2. Let's cut FAR Part 34 in its entirety. We can put the rules in Subpart 34.1 in Part 46 and the rules about earned value management systems in Part 42. The rest of it is bunk.

3. Let's delete FAR Parts 38 and 39 in their entirety.

4. Let's move the contents of FAR Part 48 into FAR Part 43 and delete Part 48 in its entirety.

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Vern,

Maybe I'm just tired right now, but I no longer believe that anybody with the power to change the system will be swayed by articles, or by public shaming. It seems that those with power are invested in maintaining the status quo. Without meaning to disparage any individual, let me call out NCMA and Contract Management magazine, in particular, as defenders of the status quo rather than thought leaders seeking radical change.

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Vern,

Maybe I'm just tired right now, but I no longer believe that anybody with the power to change the system will be swayed by articles, or by public shaming. It seems that those with power are invested in maintaining the status quo. Without meaning to disparage any individual, let me call out NCMA and Contract Management magazine, in particular, as defenders of the status quo rather than thought leaders seeking radical change.

You're probably right. But in defense of Contract Management, my experience has been that if you write something decent that is critical of the status quo, they will publish it. Stan Soloway just wrote something very critical of the status quo, and NCMA published it in the December issue. I just sent them something critical of the status quo, and they're putting it in the February issue.

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I think they could start by removing all of those blank "Reserved" sections. Either that, or put some motivational cat pictures there for inspiration. I have already started with FAR Part 20!

I agree that a full FAR rewrite is probably not the best choice. The advantage of our current acquisition system is that we have years of contract case law on significant acquisition principles. I do not think it is fair to say that every part of the FAR is poorly written and requires an overhaul. Moreover, when training is already an issue currently, can you imagine having to reeducate the entire acquisition workforce on the new FAR?

If anything, the FAR should be expanded. I would remove very little of the FAR. FAR Part 39 seems to receive a lot of hate, but I do not think removal is the answer. A huge gap in this part are the Government's policies and standards for cloud-based services. Lack of standardized data rights, privacy, and security protections for cloud-based services have already cost the taxpayer millions in disputes, and limitation of liability with data breaches will cost us even more.

I think what the FAR is lacking is its ability to connect readers to relevant content. When I do research in the FAR, I need to supplement it by looking at other sources, including case law, OMB directives, agency-specific policies/guidance, etc. It would be far more helpful if you kept the FAR as is (or made minor changes), but linked relevant information to assist Contracting Officers in the decision-making process. For example:

- Certain words could allow you to highlight over to have their definition identified;

- Areas where the FAR was changed would be clearly identified. Users can mouse-over the paragraph or word that was changed, and the left-hand side would show the FAC Update that made the change; when the change was made; and links to the previous version;

- If case law refers to a specific paragraph of the FAR, clicking on that section will show relevant parts of the case law. The user can click on that relevant paragraph to link to the decision;

- Requirements that require a written document (i.e. determination and findings) can be selected to show samples of those documents;

- Agency specific requirements, such as supplemental SBA guidance or GSA FSS policies, can be accessed by clicking on the relevant FAR Subpart. For example, if GSA has specific guidance for a particular requirement in FAR Subpart 8.4, I can click on it and it will take me the relevant information; and

- Include a search function that actually works.

You could get a group of Contracting Officers together from different agencies and think of additional ways to improve the FAR without actually making any regulatory changes. Improving the FAR through interactivity would be far cheaper than going through the regulatory process.

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meteec,

In the 1990s there was much debate as to what the FAR should be. A recommendation was made to the FAR Council to distill the existing FAR down to that core policy and procedure requiring regulatory treatment. The various regulated, and electronically available, subject matters could/would be supplemented through hypertext to layers of supplemental (but non regulatory) information that would include explanatory material (ala the Uniform Commercial Code), guidance and good practice, relevant case law, training modules, process maps, samples and examples, articles, and other resourcess. The stated objective was to have a relatively small core of mandatory requirements and a larger body of vetted professional resource materials, available in context, to aid practitioners. An unstated objective was to also provide a non-regulatory, but nonetheless official outlet in which new concepts (including Vern's "half-baked reform initiatives") could be aired without prematurely or unnecessarily adding to the body of mandatory requirements. Needless to say, the recommendation wasn't adopted. Sounds very similar to your thinking, however.

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