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I think that in matters of regulatory affairs official definitions are like the canary in the coal mine—they are indicators (but not measures) of policy activity and policy complexity, and such activity and complexity impact processes.

  • In the official paperback volumes of the Code of Federal Regulations published in October 1984, FAR Part 2, Definitions of Words and Terms, contained 21 definitions and was only slightly more than two pages long.
  • By 2000, FAR Part 2 was seven pages long and contained 58 definitions.
  • In 2001, the FAR councils moved all definitions that applied to more than one FAR part to Part 2. FAC 97-22, January 10, 2001.
  • By October 2002, the first paperback CFR volume after FAC 97-22 was 19 pages long and contained 183 definitions.
  • By October 2020, the latest paperback CFR volume was 25 pages long and contained 250 definitions.
  • Today, FAR Part 2, as it appears at acquisition.gov, contains 262 definitions.

Those numbers indicate (but do not measure) the ever increasing complexity of the acquisition process over the course of time.

References to FAR Part 2 have appeared in 268 board of contract appeals decisions, 212 Court of Federal Claims decisions, 71 federal district court decisions, 44 federal circuit courts of appeals decisions, one Supreme Court decision, 34 GAO decisions, and five state court decisions.

References to FAR Part 2 have appeared in 328 law review and journal articles and 468 articles in legal newspapers and newsletters.

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This is fun. To build it out a little, when it comes to complexity, it does not take into the account the other FAR parts and their individual definitions for use within each. 

No wonder the workforce is more than willing to wash their hands at 85/90% "good enough" and move on. 

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More fun facts.

No. 1. As of this morning, December 15, 2021, and FAC 2022-01, the FAR, in its pdf 8-½ x 11 inch format, is now 2,030 pages in length. A milestone. Formerly it was 1,992 pages.

More pages are coming. As of 12-10-2021 there are 14 pages of open FAR cases. Among other things, FAR Subpart 22.12, Nondisplacement of Qualified Workers Under Certain Services Contracts, will return. It was based on a policy established by President Clinton, revoked by President Bush, reinstated and expanded upon by President Obama, revoked by President Trump, and has now been ordered reinstated by President Biden (E.O. 14055, Nov. 18, 2021), who has further expanded upon it. It will take a while for the next reinstatement, since the FAR councils have to wait for the Department of Labor to write its own implementing regulations. So far, President Biden has issued 73 executive orders, several of which affect acquisition policy and procedure.

"Reform" and "streamlining" have been dismal failures.

No. 2. FAR Parts 1 -51 now contain 994 official definitions. (The ones in Part 52 duplicate definitions in the other parts.)

I hope that all of you who read this realize that the above are signs of insanity on the part of our elected and appointed officials. A system designed to ensure that the right supplies and services reach agencies at the right time and the right place in the right quantity and quality and at fair and reasonable prices is now so unwieldy that it borders on total breakdown. It cannot meet the needs of the citizens.

In the not-so-far-off future, PALT will be measured in decades.

Do you trust our government to detect and destroy the killer asteroid before it too late?

 

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I just read a publication for CORs on understanding labor law.  It’s filled with references and things contractors must comply with.  I’m sure it isn’t comprehensive.  For example it doesn’t include the new things in Vern’s post above.

Why doesn’t the government just let state and local labor rules suffice? Commercial businesses have to comply with those anyway.  Why does the federal government think that’s not enough? 

Then there’s the Department of Labor with all their requirements.  How much does it cost for them to run things like the Service Contract Act and Davis Bacon?  I’m sure the number is incredible.  

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2 hours ago, formerfed said:

Why doesn’t the government just let state and local labor rules suffice? Commercial businesses have to comply with those anyway.  Why does the federal government think that’s not enough? 

I will be bold.  Organized labor that is why.  I believe a deep dive into the creation and evolution of the USDOL can in a large part be attributed to organized labors ability to sway legislation.

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On 12/15/2021 at 6:43 AM, Vern Edwards said:

Do you trust our government to detect and destroy the killer asteroid before it too late?

A friend of ours when we lived in Huntsville, Is a NASA physicist at Marshall Space Center.  As of 2007, Jason was assigned to the NASA project to detect,  intercept and breakup or change the orbit of asteroids that were tracking toward earth.

I Messengered him yesterday to ask if he is still assigned to that project. Hope he responds and can update me.

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8 minutes ago, joel hoffman said:

A friend of ours when we lived in Huntsville, Is a NASA physicist at Marshall Space Center.  As of 2007, Jason was assigned to the NASA project to detect,  intercept and breakup or change the orbit of asteroids that were tracking toward earth.

I Messengered him yesterday to ask if he is still assigned to that project. Hope he responds and can update me.

Note that simply breaking up an asteroid without altering its course might or might not avoid direct catastrophic hits of pieces that are too large to burn up in the atmosphere.

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19 hours ago, formerfed said:

Why doesn’t the government just let state and local labor rules suffice? Commercial businesses have to comply with those anyway.  Why does the federal government think that’s not enough?

To support this point, see the below fun fact identified in the Section 809 Panel's Recommendation 2, titled "Minimize government-unique terms applicable to commercial buying".  In January 2018, it reported findings that:

Quote

[I]n 1995, the FAR and DFARS contained a combined total of 57 provisions and clauses applicable to the procurement of commercial items [not even counting alternate clauses or provisions]. Today there are 165, including 122 originating in statute, 20 originating in executive orders, and 23 originating in agency-level regulations or policies [not counting alternates or FAR 52.212-5(b)(35)].

The Panel goes on to recommend removal of all but 7 of the 165 provisions and clauses in FAR 52.212-5 and DFARS 212.301.  All of the provisions would go.  Only a financing clause, four payment clauses, and of course the clauses at FAR 52.233‐3, Protest After Award, and FAR 52.233-4, Applicable Law for Breach of Contract Claim would remain.  It would add those to FAR 52.212-4.

What do we lose in doing this?  In reviewing FAR 52.212-5 and DFARS 212.301, can anyone answer formerfed's question, "Why does the federal government think [FAR 52.212-4 plus state and local labor rules] are not enough?"

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On 12/15/2021 at 7:43 AM, Vern Edwards said:

Do you trust our government to detect and destroy the killer asteroid before it too late?

I do in spite of our acquisition process.  It’s a shame the government is not proactive on many critical issues.  But we come through usually when the chips are down.

We can do things right when we have too.  The use of OTA is an example.  Unfortunately the concept is being misused some and many transactions are improperly done by people that don’t care enough to learn how.  That has Congressional attention now and probably more controls, oversight, and regulations coming out.  Then we’ll get all the groups and organizations with vested interests involved to further muck things up like the FAR is now.

But once we sense imminent dangers like an asteroid hitting us, the Chinese has technology to listen and observe what everyone here is doing, our environment is collapsing, or we are running short of electricity, things will get resolved quickly - our acquisition process will be a big part of the response.

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17 hours ago, formerfed said:

We can do things right when we have too.  The use of OTA is an example.

@formerfedInteresting. I consider OTA's to be reflective of an unfortunate pattern and a signal failure of the system.

We get laws and regulations ("rules") and bureaucracy in order to address what someone considers to be a problem. Consider the Truth in Negotiations Act (1962) and the Competition in Contracting Act (1984).

After a while the rules become too complex and burdensome for the system and poorly trained people to bear, and so we get "innovation" and "reform"—exceptions to ordinary practice, like adequate price competition, award without discussions, commercial items, and OTAs. Reform implementation requires more rules and more bureaucracy.

Poorly trained personnel and misguided "innovators" misuse and abuse the exceptions, and so we get yet more rules to reform the use of the exceptions. Just review the historical development of FAR 16.505(b), Orders under multiple award contracts. Go back and look at the original rules about "fair opportunity to be considered" written in 1997 and compare them to what they're like today.

And so it goes. At a congressional hearing about the use of OTAs, a member of congress asked a DOD official about how OTAs were working. He said they were working fine, but that they were just an exception to standard practice and what we should really do is fix standard practice.

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OTAs are terrible and OTAs via consortia are worse than that.

I finished dealing with a recent OTA that required the contractor to have an adequate accounting system as a condition of award. The pricing was evaluated via cost analysis (FAR Table 15-2 format was required). DCAA was called in to evaluate the contractor's proposed costs. The awarded contract included multiple FAR clauses, including 52.216-7. It was an OTA in name only, and I'm sure the CO was proud that they could be so innovative.

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@Vern Edwards I was surprised I couldn’t find evidence that they “work.”  My knowledge is limited to some instances where agencies were successful in accelerated award timeframes, use of non traditional companies that likely wouldn’t have proposed on traditional procurements, and a more collaborative working relationship with the government.  But after looking over some GAO reports, IG reviews, and some other sources, I couldn’t find any conclusive proof.

I did come across an interesting Congressional Research Report noting DoD had no way to compare effectiveness.

https://sgp.fas.org/crs/natsec/R45521.pdf

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@formerfed

10 hours ago, formerfed said:

I was surprised I couldn’t find evidence that they “work.”

I'm not surprised.

Acquisition "leaders," "reformers" and "innovators" are among our greatest exaggerators, fabulists, and myth-makers.

The concept of evidence-based policymaking, the final report of the Commission on Evidence-Based Policymaking, and Public Law 115-435, The Foundations for Evidence-based Policymaking Act of 2018, are all the product of wishful thinking.

https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2019/03/Full-Report-The-Promise-of-Evidence-Based-Policymaking-Report-of-the-Comission-on-Evidence-based-Policymaking.pdf

The primary source of government policymaking is politics, not facts.

Most acquisition success stories cannot bear close scrutiny. Acquisition reformers knew about "alternative facts" long before that notorious presidential aide used the phrase.

Read this, if you have not already read it, then think about some of the acquisition policy memos and exhortations to relevance, reform, innovation, and greatness you have read:

https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/politics-and-the-english-language/

My favorite line: "giving an appearance of solidity to pure wind."

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50 minutes ago, Vern Edwards said:

Acquisition "leaders," "reformers" and "innovators" are among our greatest exaggerators, fabulists, and myth-makers.

A retrospective view.  A young adult that embraced a grand change in 1984 who evolved into a bureaucrat that extolled that if it is so by legislative and/or executive intent then it shall be so.  My try to keep the grand change so was not very successful.    Change is good but I really do wonder if the heap still called the FAR is more of a dog pile than change!

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Thinking more about innovations, reforms, and improvements on contract awards, proving some new approach is quite a task.  For any acquisition other than the simplest, comparison of approaches is difficult.  First of all you need a reasonably size pool of similar projects so that your results are sound.  Next you need the same or very similarly matched people to conduct them.  Then you need to somehow address the multitude of variables that arise, many of which can’t be controlled. 

When the award is made, much of the effort is just beginning.  You might make very prompt awards but the contractor performance falls short for any number of reasons.  Is the test approach at fault?

Doing comparison testing like this requires a controlled environment and somehow identifying and managing all the variables.  Is it worth it?  Or is it easier to say in the subjective sense something “works?”  I personally don’t care that much.  What I would like to see is policies that empower Contracting Officers to carry out projects using sound judgement with accountability.  They are free to use any of the processes and tools available to them based upon specific circumstances at that time.  This includes minimal oversight - COs succeed or fail on their own.  

 

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1 hour ago, Vern Edwards said:

Well, let's think. Let's begin by stating what we are talking about. Assuming that innovation, reform, and improvement are nouns, are they synonyms for the same thing or are they different things? What are they?

Good point.  To me reforms come about through statutory or regulatory changes.  Innovations are changes within existing regulations and policies that result in new or different ways of performing tasks. Innovations are ideas or the discovery of new ways of performance.  Improvements are taking current processes and performing tasks more effectively and efficiently. 

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41 minutes ago, formerfed said:

Innovations are changes within existing regulations and policies that result in new or different ways of performing tasks. Innovations are ideas or the discovery of new ways of performance.  Improvements are taking current processes and performing tasks more effectively and efficiently.

I think your two “i” terms above are splitting hairs.  FAR 1.102-4 uses, but does not define, “innovations” where it says, “absence of direction should be interpreted as permitting the Team to innovative [sic] and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.”  This use of this term in 48 CFR sounds like its definition would be what you call “improvements”.  Recommend you simplify to just defining reforms (which are out of Executive Branch control) and innovations (within Executive Branch control and a duty squarely assigned to the CO).

In other words, improvement is a synonym for innovation.

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On 12/17/2021 at 7:47 AM, Vern Edwards said:

After a while the rules become too complex and burdensome for the system and poorly trained people to bear, and so we get "innovation" and "reform"—exceptions to ordinary practice, like adequate price competition, award without discussions, commercial items, and OTAs. Reform implementation requires more rules and more bureaucracy.

Vern, I interpreted the above to be a definition of reform only, with innovation undefined in the quote.  Is that what you meant?

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15 hours ago, WifWaf said:

Vern, I interpreted the above to be a definition of reform only, with innovation undefined in the quote.  Is that what you meant?

No. I did not intend to define "innovation" or "reform." Either might involve an exception to ordinary practice.

In casual communication I use "innovation" to refer to something new, e.g., a new practice. Self-scoring proposal evaluations was such an innovation. Congressional authorization for DARPA to enter into "other transactions," when first introduced in 1989 (Pub. L. 101-189), was an innovation. I think most innovations are intended to simply processes and reduce workload.

I casually use "reform" with reference to a modification of an existing practice that is designed to fix a specific problem. Reforms don't necessarily simplify or reduce workload. They often complicate and increase workload. The CICA requirement for full and open competition (1984) was a reform. So was the law requiring "enhanced debriefings." The change to FAR 16.505, allowing bid protests of task orders awards, was a reform, but it did not reduce workload. 

But I do not mean those to be formal definitions, and it's not a matter of either/or. A reform might involve an innovation. An innovation might be intended as a reform.

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