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Jamaal Valentine

Reducing Regulation and Controlling Regulatory Costs

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Below is a few excerpts from The Fiscal Times' article discussing a new executive order aimed at reducing regulation and controlling regulatory costs. I am interested to see where this requirement goes concerning government contracting ...

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President Trump on Monday morning signed an executive order, “Reducing Regulation and Controlling Regulatory Costs.” The order appears to be a gift to the business community, which constantly complains of the burden of compliance with federal requirements. It also appears to vest considerable power in the director of the Office of Management and Budget to throttle federal rulemaking if that’s what the administration wants to do.

The headline elements of the new order are that federal agencies need to target two rules for elimination for every new rule they issue, and that the executive branch will move toward establishing a “regulatory budget” for federal agencies.

The executive order stipulates that, “Unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”

View the full article here

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That's a stupid executive order. It does not take into account that many regulations are promulgated by express direction of Congress or in order to implement a statute. The president may as well tell Congress to stop passing laws that have to be carried out by agencies.

in any case, the exceptions listed in Sections 4 and 5 would seem to cover most acquisition regulations.

 

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On ‎1‎/‎31‎/‎2017 at 7:23 PM, Vern Edwards said:

That's a stupid executive order.

You might not like the intent or substance of the executive order, but PepeTheFrog doesn't think it's stupid. What makes you think no White House staff realizes or accounts for the fact that: 

On ‎1‎/‎31‎/‎2017 at 7:23 PM, Vern Edwards said:

many regulations are promulgated by express direction of Congress or in order to implement a statute

An implementation memo from Chief of Staff Priebus expressly exempts from the freeze and review by presidential appointees, "regulations subject to statutory or judicial deadlines."

https://www.whitehouse.gov/the-press-office/2017/01/20/memorandum-heads-executive-departments-and-agencies

The executive order sets the tone that regulations should be minimized and reduced as much as possible, and that "new" regulations (presumably, those not required by statute or otherwise) will be heavily scrutinized. What's wrong with that? Anything to slow or reduce regulations sounds good to PepeTheFrog, and is a welcome change we can believe in. Congress certainly shares or completely shoulders the blame for many regulations, but this is about what can be done in the executive branch agencies.

Vern, assuming your policy goal is to reduce the number and burden of regulations, how should the executive order be written and implemented?

Is there another method superior to (this) executive order?

 

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12 hours ago, PepeTheFrog said:

Is there another method superior to (this) executive order?

 

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Sec. 2.  Regulatory Cap for Fiscal Year 2017.  (a)  Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.

When it comes to reducing contracting regulations, a superior method is: thoughtful analysis, thoughtful determination of what is necessary and what is not, thoughtful determination of what works and what does not, and thoughtful decision about what should be eliminated and what should not.

The brute force dictate to remove at least two for every one you add is mechanical, not thoughtful. It seems to presume that the persons to whom the order was given are not capable of being thoughtful.

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I think it seems to presume that the persons to whom the order is given are not capable of voluntarily reducing regulations or regulatory costs.

I think that is a reasonable presumption.

In my Command, there was and is a systematic thought process to make decisions based on  "lessons learned" on contracts without any requirement for the originator/author to perform or provide a root cause analysis. The problem may have occurred only once, once in a hundred projects or even once in a thousand projects.  

It may have been caused by personality conflicts between contractor and government, human error, etc. I'm not speaking of life safety issues. 

The organization then is eager to implement new standards, regulations or technical specification requirements that affect ALL future contracts or projects, seemingly without regard to the life cycle cost impact or cost/benefit ratio. There are often other ways to avoid the problem identified in the lesson learned. 

Although these are not usually the "regulations" targeted by the E.O, it demonstrates an example of the decision making mentality that can manifest itself in an Organization. 

 

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Moreover, it is not clear that the E.O. applies to the FAR System. If you read the definitions in the E.O., in the accompanying memorandum, and in E.O. 12866, which was issued by President Clinton, it is not clear that the FAR System is a "regulation" as that term is used in the E.O.

The FAR System is not published in compliance with the Administrative Procedure Act, but with the Office of Federal Procurement Policy Act. The APA does not govern its publication. The FAR System does not apply to the general public. It applies only to government personnel, those members of the public who submit bids and proposals to the government, and those members of the public who actually enter into a contract.

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3 hours ago, joel hoffman said:

I think it seems to presume that the persons to whom the order is given are not capable of voluntarily reducing regulations or regulatory costs.

With some justification.

1. SECDEF Gate's initiative to enhance "efficiency" by reducing bloated Pentagon back-office bureaucracy. WaPo broke the story of what happened to that. (Spoiler: Nothing much.)

2. USD (AT&L) Report (Sept. 19, 2015) discussing progress on five years of efforts to roll-back regulatory burdens imposed on contractors. (Spoiler: Nothing much. And that's being generous.)

3. Pages 89-90 of that report identified a real opportunity to reform submission of (certified) cost or pricing data:

" DoD should clarify policy guidance to reduce repeated submissions of CoP data. Multiple submissions are an unintended, and generally unsought, consequence of the FAR requirement that certified CoP data be ‘current.’ Frequent resubmissions appear to be the result of contractors’ fears that out of date CoP data that becomes inaccurate will lead to defective pricing claims by DoD post-award. However, lack of clarity on what is considered ‘current’ motivates some contractors to provide excessively frequent CoP data updates during negotiations (weekly or monthly), which creates unnecessary work not only for contractors, but also for the Procuring Contracting Officer (PCO). We recommend amending DFARS (and/or the FAR) to remove uncertainty about the appropriate frequency of providing certifiable CoP data to ensure it remains ‘current’ and/or to clarify pricing changes that warrant resubmission of CoP data. … Reducing unnecessary resubmissions of certifiable CoP data would lower contractor proposal costs and reduce procurement administrative lead time. Making this change also weakens the argument for making additional changes to the TINA statute, such as increasing thresholds or relaxing waiver criteria."

What happened to that agreed-upon reform? It evolved into a DFARS Case (2015-D030) that would revise 215.407-1 (not FAR 15.407-1(c) as the study recommended) to: "stipulate that DoD contracting officers shall request a limited-scope audit, unless a full-scope audit is appropriate for the circumstances, in the interest of promoting voluntary contractor disclosure of defective pricing identified by the contractor after contract award." The final rule is currently being drafted, and will likely be touted as some kind of regulatory reform. To be fair it is "some kind" of reform; just not the kind we need.

Seriously Joel, despite your anecdotes to the contrary, the overwhelming evidence of the past 40 years is that DoD is unable to stop itself from burdening its contractors with excessive regulations. Sure some of this (much of it?) is driven by statute--but not all. Even when DoD tries to roll the regulations back, certain constituencies within DoD go into battle on the regulations' behalf. Which is all fine for me, since I make my living parsing through the morass of moribund rules. But it's not so fine for the taxpayers who have to foot the bills.

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H2H, I don't disagree with you!  I agree with that presumption. 

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