Jump to content

Recommended Posts

This is a topic of conversation down in the VIP Lounge section of this cite that I would like to bring down to the commoners.  The thread is found here: 

To begin this thread Vern argues that "DOD that should have its own regulation...in part because DOD acquisition serves a unique mission" and concludes with "free DOD from the FAR System and let it go its own way."

I have heard this argument before.  Can you not make the same argument for federal agencies throughout government?  Couldn't you argue that the State Department, because of mission and geographic diversity is unique?  Couldn't you argue that the Department of Treasury has a unique mission to which it is uniquely qualified?  Same with DHS?  Same with NASA? 

Now I understand the limitations of this argument, and most other agencies are not building missiles, ships, tanks, and advanced offensive and defensive weaponry.  The uniqueness of mission certainly holds water when viewed in this lens.  But every agency does buy commodity goods and services to which there is nothing unique.  The "uniqueness" argument, I find, is really a resource argument whereby you have folks whose job it is to buy...lets say...paper, and despite the fact that paper is easy and ubiquitous, an agency's "unique" circumstances require they they maintain their own, internal, paper buying operations.  Unique then becomes an excuse.

Lastly, wasn't FAR an attempt to begin reducing the number of agency-specific acquisition rules and start bringing consistency to the process?  The expansion of FAR can also be seen as the drawing in of common agency specific regulations (with a healthy dose of social policy advocacy). If that is the case, then would not the expansion of rules be an indication that the FAR is actually accommodating more of what DOD requires, therefore free the FAR from DOD?  If agency specific requirements end up being burden some that is on them, not the FAR.

We focus on what can be streamlined and interpreted in FAR, but maybe we should be talking instead about streamlining (or eliminating) our agency supplements to the FAR.

Just some thoughts.

Link to comment
Share on other sites

What makes DOD especially unique (if you'll permit me that grammatically incorrect phrase) is that Congress keeps on "improving" it through targeted legislation, causing the DFARS to vary widely from the rest of the FAR and FAR Supplements. The DFARS is, in several important areas, a separate entity unto itself. Some think it's time to recognize that difference and make it formal. Examples offered in support of my assertion: Executive Compensation cost allowability and Business Systems Administration.

Link to comment
Share on other sites

Here is a perfect example of the annual improving--The National Defense Authorization Acts.  There are 16 of them broken out by sections and why the sections were enacted.  Near the end of this CY, there will be a 17th.  Here are the current versions of the latest mongrels:  Senate and House.  These aren't the finished bills.  They have to endure amendments and compromises.

When the bills are finally enacted into regulatory trash, the FAR Councils will have decided if any can apply to the FAR or whether they are strictly DFARS material.  Often, the finished bills partially apply to both defense and civilian agencies. 

At times other oversight committees get the idea that they know something about contracting.  Then they balkanize the civilian agency regulations.  For example, FAA, Patent and Trademark, etc.  Years ago, I seem to remember the oversight committees of the Park Service changing some competition laws affecting concession contracts--which are odd ducks anyway.  Then there are DOE's M&O contracts and its oversight committees.  NASA may get tweaked now and then by its oversight committees too .  The Postal Service has its own thing.  Congressional agencies and the Courts--remember the separation of powers thing.  Who knows what else is out there. 

So forget about it.  You've got a FAR system with DoD and the Critters in the Executive Branch and Congressional Agencies and the Courts winging it on their own.  Sorry TVA and the Power agencies--I know you have your own thing too.  If you are a contractor with different agencies as customers, study the FAR Supplements well--it is a competitive advantage.  Of course, if you are dealing with government corporations you have other rules out there too.  What a hopeless mess.

       

Link to comment
Share on other sites

Guest Vern Edwards

Although most of us are accustomed to reading the FAR from a website, the official publication is the volumes of the Code of Federal Regulations and the Federal Register, which are published by the National Archives and Records Administration. There are 50 titles (topical sets of rules) in the Code, each occupying one or more physical volumes. The volumes of each title are updated once each calendar year as of a specified date. Amendments are published in the Federal Register and incorporated into the physical volumes when they are updated.

Each volume of the Code contains an introductory explanation, which reads in part as follows:

Quote

 

The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.

Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:

Title 1 through Title 16..............................................................as of January 1

Title 17 through Title 27 .................................................................as of April 1

Title 28 through Title 41 .................................................................as of July 1

Title 42 through Title 50.............................................................as of October 1

The appropriate revision date is printed on the cover of each volume.

LEGAL STATUS

The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510).

 

The FAR System is Title 48 of the Code of Federal Regulations. It occupies seven physical volumes. The volumes are updated as of October 1 each year. This is what the Code says about Title 48:

Quote

 

Title 48—FEDERAL ACQUISITION REGULATIONS SYSTEM is composed of seven volumes. The chapters in these volumes are arranged as follows: Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts 201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and chapter 29 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 2015.

The Federal acquisition regulations in chapter 1 are those government-wide acquisition regulations jointly issued by the General Services Administration, the Department of Defense, and the National Aeronautics and Space Administration. Chapters 2 through 99 are acquisition regulations issued by individual government agencies. Parts 1 to 69 in each of chapters 2 through 99 are reserved for agency regulations implementing the Federal acquisition regulations in chapter 1 and are numerically keyed to them. Parts 70 to 99 in chapters 2 through 99 contain agency regulations supplementing the Federal acquisition regulations.

The OMB control numbers for the Federal Acquisition Regulations System appear in section 1.106 of chapter 1. For the convenience of the user section 1.106 is reprinted in the Finding Aids section of the second volume containing chapter 1 (parts 52 to 99).

For this volume, Michele Bugenhagen was Chief Editor. The Code of Federal Regulations publication program is under the direction of John Hyrum Martinez, assisted by Stephen J. Frattini.

 

How big is the FAR System? Measuring size by page numbers in the published volumes, the FAR System, and including front and back matter, the System is 4,932 pages long. The contents of the seven volumes are as follows:

Volume 1, Chapter 1 "the FAR," Parts 1 – 51, 1,118 pages;

Volume 2, Chapter 1, "the FAR," Parts 52 and 53, 664 pages;

Volume 3, Chapter 2, Defense FAR Supplement, 732 pages;

Volume 4, Chps. 3 – 6, Department of Health and Human Services, Department of Agriculture, GSA, and Department of State Supplements, 406 pages;

Volume 5, Chps. 7 – 14, Agency for International Development, Department of Veterans Affairs, Department of Energy, Department of the Treasury, Department of Transportation, Department of Commerce, and Department of the Interior supplements, 884 pages;

Volume 6, Chps. 15 – 28, EPA, OPM (Federal Employees Health Benefits), OPM, NASA, Broadcasting Board of Governors, Nuclear Regulatory Commission, OPM (Federal Employees Group Life Insurance), Social Security Administration, HUD, National Science Foundation, and Department of Justice supplements, 593 pages; and

Volume 7, Chps. 29 and 30, 34, 51 – 57, 61, 63, and 99, Department of Labor, Department of Homeland Security, Department of Education, Department of the Army, Department of the Navy, Department of the Air Force (Reserved), Defense Logistics Agency, African Development Corporation, Civilian Board of Contract Appeals, Department of Transportation Board of Contract Appeals, and Cost Accounting Standards Board supplements, 530 pages.

As you can see, although there are a lot of Federal agencies, not all have FAR supplements.

The biggest supplement is the DFARS, at 732 pages. Second is the Department of Energy at 277 pages. Third is NASA at 265. Fourth is the Department of Veterans Affairs, at 154 pages. Note that DOE, NASA, and the VA have substantial defense-related missions.

Remember that the FAR System does not include internal agency guidance. See FAR 1.101 and 1.301(a)(2).

Link to comment
Share on other sites

Going just a little further noting Bob's post and Vern's detail remember as well that some DoD agencies also issue their own supplements - by example the AFARS and AFFARS.  And then there are the power agencies - by example Bonneville Power Administration and their Bonneville Purchasing Instructions that appears to be in excess of 571 pages.

22 hours ago, jonmjohnson said:

Lastly, wasn't FAR an attempt to begin reducing the number of agency-specific acquisition rules and start bringing consistency to the process? 

 

8 hours ago, bob7947 said:

What a hopeless mess.

 

Link to comment
Share on other sites

It could be worse than DoD.  When in the ANG, I knew it was FAR, DFARS, AFARS, NGFARS.

VA basically ignores the VAAR.  Everything is a policy memo, oftentimes so outdated as to be indecipherable.  The VA2268 (like the DD2579) doesn't even have a prescribing directive.

Link to comment
Share on other sites

Guest Vern Edwards
17 hours ago, C Culham said:

Going just a little further noting Bob's post and Vern's detail remember as well that some DoD agencies also issue their own supplements - by example the AFARS and AFFARS.  And then there are the power agencies - by example Bonneville Power Administration and their Bonneville Purchasing Instructions that appears to be in excess of 571 pages.

Bob asked about the FAR System. Remember that the FAR System includes only those rules that must be published in the Federal Register pursuant to 41 U.S.C. § 1707, which states, in pertinent part:

 
Quote

(a) Covered policies, regulations, procedures, and forms.--

(1) Required comment period.--Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it--
(A) relates to the expenditure of appropriated funds; and
(B)(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or
(ii) has a significant cost or administrative impact on contractors or offerors.
Subsection (d) is a waiver for urgent and compelling circumstances.

Anything that does not fit that description is what FAR calls "internal agency guidance."

The Bonneville Power Administration'a purchasing instructions are not FAR supplements. Bonneville--like the Federal Aviation Administration, the U.S. Mint, the U.S. Postal Service, and a number of other agencies--is not subject to the FAR.

Link to comment
Share on other sites

Vern:

That is correct.  I should have clarified that some contracting regulations that I mentioned are not a part of the FAR system.  Those that are not included in the e-CFR Part 48, are in addition to the regulations in the FAR system.  By visiting the online e-CFR, everyone can see what is in the Federal Acquisition Regulations System and see how it is coded. 

In addition to the FAR system, as you mention, other agencies, corporations, etc, may decide to follow the FAR or write their own thing.  This is just another pile of crap on top of the FAR System that contractors have to deal with.

Add to that, the differing bid protest jurisdictions of GAO and the COFC.  I know you wrote about those 2 forums somewhere here.  I would eliminate the COFC's jurisdiction for bid protests.

Is this the worst Congress can do?  Of course not!  There will be more garbage rolled onto everyone possibly by the end of this year.  The FAR System and all the other contracting regulations that can be in some way linked to the federal government are like a farmer's manure pool that is never emptied--with Congress being the farm animals.

Link to comment
Share on other sites

Make the FAR System Workable.

Make access to authoritative guidance easier. Build a FARSITE that contains links to commentaries (explanations and interpretations of FAR text), related case law, etc.

Most of the inefficiency I see is in rework because one or more person doesn't understand the application of rules; and navigating bureaucracy (administrative procedure that's not well understood or agreed upon).

There is a lot of information available -- to figure things out -- but finding it takes time and know-how ... 

Imagine if your average practitioner could select any meaningful FAR text and simply click a link for a different translation (e.g. plain language), or commentary. For example: If FAR 15.404-1(b) had links to take you to corresponding or relevant parts of the Contract Pricing Reference Guide, Contract Attorney's Deskbook, Cibinic and Nash or other treatises, case law, etc.

 

Link to comment
Share on other sites

I don't think the FAR system is the problem.  

I don't think any of the recommendations discussed in this thread will address the problem.  I'm generally in favor of some of them, but I don't want to pretend like they will solve the problem.  

 

 

Link to comment
Share on other sites

Another issue is that what is printed in the FR does not necessarily get incorporated into the CFR.  Instead, the agency promulgating a rule that is published in the FR also has to provide that information to the CFR for publication there.  Prime example is FAR Part 99 which is to include the rules of the Cost Accounting Standards Board and the CAS.  The CASB publishes its rules and the CAS, including changes to them, in the FR for public comment then publishes the final rule in the FR.  However, for some reason, the CASB does not provide that information for publication in the CFR.  That is why 48 CFR 99 is blank.  Finally, don't get me started on DCAA's promulgation of its Contract Audit Manual (CAM) which is neither published in the FR or CFR although it is largely anything but internal guidance and definitely has an administrative and cost impact on contractors.

 

Link to comment
Share on other sites

3 hours ago, ji20874 said:

I don't think the FAR system is the problem.  

I don't think any of the recommendations discussed in this thread will address the problem.  I'm generally in favor of some of them, but I don't want to pretend like they will solve the problem.  

 

 

The "workability" of the FAR System was the problem raised by the original poster. What problem are you referring to?

Link to comment
Share on other sites

Guest Vern Edwards
7 hours ago, ji20874 said:

I don't think the FAR system is the problem.  

I don't think any of the recommendations discussed in this thread will address the problem.  I'm generally in favor of some of them, but I don't want to pretend like they will solve the problem.  

So the problem is not the FAR System, but there is a problem, and the recommendations discussed won't fix the problem, whatever the problem is. Is that right, ji20874? So what the hell problem are you talking about, ji20874?

Link to comment
Share on other sites

I have no opposition to improvements in the FAR system.  But I don't to pretend like those improvements are going to solve anything.  

We have entirely too many 1102s who act like clerks, not professionals -- too many who want to follow procedures instead of produce results -- too many who won't read the current FAR and won't read an improved FAR.  And we have a bureaucratic culture that reinforces all of the above and suffocates innovation, reasonable risk-taking, and the exercise of discretion.  We promote people to high grades who are not consummate contracting professionals.  I paint with a broad brush, of course, but this is our real problem in my opinion.

Link to comment
Share on other sites

On ‎5‎/‎21‎/‎2016 at 5:14 PM, ji20874 said:

I have no opposition to improvements in the FAR system.  But I don't to pretend like those improvements are going to solve anything.  

We have entirely too many 1102s who act like clerks, not professionals -- too many who want to follow procedures instead of produce results -- too many who won't read the current FAR and won't read an improved FAR.  And we have a bureaucratic culture that reinforces all of the above and suffocates innovation, reasonable risk-taking, and the exercise of discretion.  We promote people to high grades who are not consummate contracting professionals.  I paint with a broad brush, of course, but this is our real problem in my opinion.

Some agencies (well, at least one) seem like that's their plan--train clerks rather than KOs.  Don't let them think, but instead follow endless checklists and use mandatory templates.  For a KO with a previous, comfortable level of autonomy, it's torture.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...