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Wallowing in the FAR

Posted by Vern Edwards, 16 April 2010 · 2,633 views

Those of you who have read what I have written over the years know that I think Steve Kelman was the best Administrator of Federal Procurement Policy that we have ever had. He had more effect on the acquisition process, mostly positive, than any Administrator before or since. But he recently wrote something in his April 8 column in the online edition of Federal Computer Week that distressed me. The entry is entitled, ?Keep your contracting staff in the loop,? and it urges program offices to include their contracting offices in their early planning and in the development of their ?procurement packages.? Here is the first sentence of the fourth paragraph of the column:
When contracting folks raise objections about a procurement package that was developed without their cooperation, sometimes they are merely being bureaucratic, wallowing in Federal Acquisition Regulation provisions or making a power play.


What has upset me is the disparaging phrase: ?wallowing in Federal Acquisition Regulation provisions.? Contracting officers are charged with ensuring that acquisitions are conducted in accordance with law, regulation, and policy. See FAR 1.602-1( b):

No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.

A CO can be held personally responsible for knowingly violating the rules when conducting a contract action. See John Martino, Comp. Gen. Dec. B--262168, 96-1 CPD ? 256; 1996 WL 283964:

Where the Panama Canal Commission found that [an] employee, a contracting officer, failed to comply with the Federal Acquisition Regulation requirement to conduct a market price study prior to extending a contract, a rational basis exists for assessing liability against him. Employee was provided notice and a hearing pursuant to 31 U.S.C. ? 3716 and agency regulations. The Panama Canal Commission acted properly in using administrative offset procedures to set off his debt against his final salary payments and accumulated leave and is entitled to proceed through the Office of Personnel Management to collect the balance remaining against his Civil Service Retirement Fund account.

The CO had exercised an option to buy additional quantities of supplies needed by the user and deliberately did not bother to check the market price before doing so, as required by FAR. As a result, the agency paid too much for the supplies. The amount taken from the CO?s retirement fund was $88,040. I do not know why the CO didn?t check. Perhaps he knew that checking the market would take time and might have revealed that the option price was too high, which it was, and which meant that the CO would have had to conduct a new procurement or get approval to negotiate a new price without full and open competition. Maybe the CO chose not to wallow in the FAR because it would have inconvenienced the user, so he took the easy way out. If that's what happened it was a bad call, because it cost him 88 grand out of his own pocket. That's a big price to pay to support a user that maybe hadn't planned properly. Talk about customer service!

When I look in my dictionary I see that the verb wallow is defined as ?to luxuriate; revel.? I don?t know why anyone would want to luxuriate in or revel in the FAR. I urge contracting people to know it and know it well, but I don?t urge them to celebrate it. The thing is a mess. But it?s a fact of life and failing to accept that can lead to trouble. Among other things it can lead to more regulation. On the other hand, knowledge of it can reveal ways to streamline and accelerate the acquisition process.

We Americans have a peculiar relationship with regulations. We are ready to hang an official who violates one that is personally important to us, but we sneer and rail at those who insist upon following regulations that inconvenience us and that we consider petty. Paul Hein summed it up as follows: "Are we fools for obeying rules? Absolutely, yes ? and no. I am firmly committed to both sides of the question. On the other hand, are we fools to make rules? Without a doubt, except sometimes. Again, I am securely and comfortably ensconced astride the fence."

My attitude is that I'll play any game, just tell me the rules so we can get on with it and quit standing around. I want COs to know those parts of the FAR that govern their procurements so that they can get things done. Anyone who knows the FAR well knows that it is not as restrictive as ignorant people make it out to be. For instance, nothing in FAR Part 15 requires COs to conduct source selections in the mind-numbing, resource-intensive, time-consuming, costly ways in which they so often do it, and knowing the rules well enables me to come up with ways to pick the contractor, award the contract, and get on with the job in the shortest time possible and with the least unnecessary expenditure of human resources and money. COs shouldn't read the FAR in order to find a way to say no or to make a power play. COs should read the FAR in order to secure the objectives of their clients efficiently and effectively while operating within the bounds of the law.

What does ?knowing the FAR? mean? First, it means knowing what kinds of content are in the FAR. The FAR contains (1) rules, (2) guidance, and (3) solicitation provisions and contract clauses. Second, it means knowing how to find the specific rules, guidance, provisions, and clauses that apply to particular issues and problems. Third, it means know howing to read the FAR, which is not the same as reading a novel or history book. Reading regulations entails a special kind of reading that requires a very high level of attentiveness and, very often, sentence by sentence and even word by word analysis. Finally, it means understanding what the FAR means, which is not necessarily the same as knowing what it says, and which is often impossible without an extensive knowledge of case law. Consider two FAR passages: 15.306(d) and 52.243-1( b). It is easy enough to know what they say, but it is very hard to know what they mean unless you are familiar with the decisions of the GAO about discussions in source selection and the decisions of the boards of contract appeals and the federal courts about equitable adjustments. Those two passages have spawned countless pages of decisions and analysis. Only a pro can really understand them.

While I don?t luxuriate or revel in the FAR, I do wallow in it, metaphorically speaking, in another sense: I read certain parts of it a lot. For example, I reread Part 15 constantly. Why? So I can know the rules about conducting negotiated procurements. Why? So I can things done in compliance with the law and without doing things that are not necessary, and so I can do what FAR 1.102-4(e) says that contracting officers should do: "take the lead in encouraging business process innovations and ensuring that business decisions are sound.? I?ve had a long career and a very successful one. Knowing the FAR (and, before it, the DAR and the ASPR) hasn?t hurt me one bit. Program managers loved me. I was a very "let's get on with it" kind of CO. I didn't say no very often, so people took me seriously when I did, and they didn't worry because they knew I'd figure something else out. Oh, and neither I nor any of my bosses ever got into trouble over one of my contract actions.

Knowledge is influence. Influence is power, the power to get things done. So wallow in the FAR. It's the professional thing to do.

Great article Vern. I have been on the warfighter side, program side, the COR side, and have now just graduated a contracting intern program for the Army. I had to mentor myself and educate myself, and now give classes to my organization on what they are doing wrong. I have noticed CO?s are too often accused of compromising the mission, or hindering the mission, when a pause is necessary to do the wallowing. Unfortunately, some CO?s have given so much of their processes away that they have become glorified paper pushers, merely kept around by the program managers to sign the paperwork. I have seen many actions that have used the premise that they won?t get caught, or if they do they will be given special consideration, the mission and all. We do not do the fundamentals, i.e. market research, T&M D&Fs anything, we just exercise the options to keep the PM shop off our case. The program managers hide behind the mission shield so much that one would think that every action they do the warfighter?s life is in the balance. Untrue for many of the actions, but who wants to be accused of not supporting the warfighter. The CO?s need to reclaim their processes, and do the requisite wallowing, we owe it to our taxpayers as much as we owe expeditious contract actions to our program managers supporting the warfighter. Unfortunately, senior leadership have turned their backs or a blind eye and entertain these program manager?s complaints, when we want to pause and wallow in the FAR, putting even more pressure on the CO?s to get along and complete the actions as quickly as possible vice as responsible as possible. I will likely not stay in this field. Although, I would love to be a CO, I do not feel my future supporting staff is up to the challenge, nor is the Army leadership headed in the right direction as far as grooming the up and coming interns.
Keep up the good work?
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Thanks, Murphy. For what it's worth, I don't think there is much "senior leadership" in acquisition anymore. Or junior leadership, for that matter. By and large, leadership, especially in contracting, is pretty much nonexistent.
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