International comparison works.  It’s important to not try and compare the entire process but note and gather nuggets on how particular subjects are handled.  The same applies to states and private industry.  Another really good source is government agencies exempt from the FAR.  FDIC, US Courts, Comptroller of Currency, FAA, and so on.  Then there are agencies partially exempt like PTO and FSA.

To me the ideal situation is a very brief FAR addressing mostly the statutory and other essential items.  It wouldn’t go into detail on how processes work in step-by-step manner but only at the highest level.  Contracting officers have a great deal of latitude on how to comply and use personal judgement in selecting the most beneficial approach for the instant need.  These COs have extensive training and are chosen after demonstrating a high degree of capability.  Detailed supplemental agency regulations are kept to a minimal.  Because of the latitude and flexibility’s afforded, many contracting solutions devised may be very beneficial for others.  Some organization like OFPP notes and communicates successful practices for others to use.  But these are not required and only suggestions. 

This streamlining is quite interesting and could possibly pick up steam in the current climate (if championed by the right people). I do wonder that if the process is streamlined, would the roles/duties of the CO and CS change. Perhaps the 1102 role would take on more of a "buyer" sort of approach? I know it's getting into semantics, but the duties could affect the titles. 

More.  This author is really good

https://blog.joelonsdale.com/p/america-needs-better-defense-acquisition

My agency firewall has problems allowing me to read the 100 page FAR posted on Linkedin.  Is there another way to view it?  

@Melissa Rider  try this 100 page far

I have read other places that the "100 page FAR" is being confused with the official FAR rewrite (aka FAR 2.0).  I am not sure what is what but the confusion makes sense.  From my seat I am waiting for the 2.0 to hit the streets whether it be for comment or is just it, something again that is being debated.   Just a thought as the airways are cluttered with a lot of jet streams right now.

Question:

We have the Constitution.

We have the statutes enacted by Congress (positive law).

We have the common law decisions of the courts.

Why do we have regulations (administrative law)? What is their purpose?

Why do we have the FAR? What is its purpose?

Here is some background:

Congressional Research Service, R42826, The Federal Acquisition Regulation: Answers To Frequently Asked Questions (2024) https://www.congress.gov/crs-product/R42826

 

3 hours ago, Vern Edwards said:

Question:

We have the Constitution.

We have the statutes enacted by Congress (positive law).

We have the common law decisions of the courts.

Why do we have regulations (administrative law)? What is their purpose?

Why do we have the FAR? What is its purpose?

Here is some background:

Congressional Research Service, R42826, The Federal Acquisition Regulation: Answers To Frequently Asked Questions (2024) https://www.congress.gov/crs-product/R42826

 

The purpose of the FAR as a regulation is to provide uniform policies and procedures for acquisition so that one who is within the Executive Branch of the Federal government can comply with a statute and keep within the sideboards of case law.  Dare I say "Federal Contracting for Dummies" even in light of the complications of the socio-economic ideals of Congress that have been woven into the statutes that govern Federal acquisition.    My simple view.

4 hours ago, C Culham said:

The purpose of the FAR as a regulation is to provide uniform policies and procedures for acquisition so that one who is within the Executive Branch of the Federal government can comply with a statute and keep within the sideboards of case law.  Dare I say "Federal Contracting for Dummies" even in light of the complications of the socio-economic ideals of Congress that have been woven into the statutes that govern Federal acquisition.    My simple view.

Is the purpose limited to complying with statutes and case law? I don’t think so.

Every construction or A/E contract, whether commercial, private, state, local or Federal government has terms and conditions defining the roles and responsibilities and assignment of risk between the parties.

State, local, Federal and the various model construction or A-E specific contract clauses, terms and conditions are standardized for consistency and to avoid re-inventing the wheel. Industry would go crazy if Federal contract terms and conditions were all over the place.

Case law didnt create these terms and conditions and I doubt that they are statutory.

Here is the language from the original 1962 statute that created the discussions law, Pub. L. 87-653, The Truth in Negotiations Act:

Quote

(g) In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered : Provided, however, That the requirements of this subsection with respect to written or oral discussions need not be applied to procurements in implementation of authorized set-aside programs or to procurements where it can be clearly demonstrated from the existence of adequate competition or accurate prior cost experience with the product, that acceptance of an initial proposal without discussion would result in fair and reasonable prices and where the request for proposals notifies all offerors of the possibility that award may be made without discussion.

Here is what 10 USC 3303 says today about discussions in source selection:

Quote

(a) Evaluation and award.--The head of an agency shall evaluate competitive proposals in accordance with section 3301(a) of this title and may award a contract--

(1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or

(2) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary.

(b) Limit on number of proposals.--If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with such criteria.

Here is what 41 USC 3703 says:

Quote

 

(a) Evaluation and award.--An executive agency shall evaluate competitive proposals in accordance with section 3701(a) of this title and may award a contract--

(1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or

(2) based on the proposals received and without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), if, as required by section 3306(b)(2)(B)(i) of this title, the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions unless discussions are determined to be necessary.

(b) Limit on number of proposals.--If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with those criteria.

That's it for the statutes.

Based on those texts, previous statutory versions of those texts going back to 1962, decades of mostly GAO "case law", previous procurement regulations, and subsequent regulatory analysis, policy making, and regulation drafting and redrafting leading up to the 1997 FAR Part 15 Rewrite, we got today's FAR 15.306, Exchanges with offerors after receipt of proposals, which says this:

Quote

(a)Clarifications and award without discussions.

(1)Clarifications are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.

(2)If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.

(3)Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file (see the provision at 52.215-1) ( 10 U.S.C. 3303(a)(2) and 41 U.S.C. 3703(a)(2)).

(b)Communications with offerors before establishment of the competitive range. Communications are exchanges, between the Government and offerors, after receipt of proposals, leading to establishment of the competitive range. If a competitive range is to be established, these communications-

(1)Shall be limited to the offerors described in paragraphs (b)(1)(i) and (b)(1)(ii) of this section and-

(i)Shall be held with offerors whose past performance information is the determining factor preventing them from being placed within the competitive range. Such communications shall address adverse past performance information to which an offeror has not had a prior opportunity to respond; and

(ii)May only be held with those offerors (other than offerors under paragraph (b)(1)(i) of this section) whose exclusion from, or inclusion in, the competitive range is uncertain;

(2)May be conducted to enhance Government understanding of proposals; allow reasonable interpretation of the proposal; or facilitate the Government’s evaluation process. Such communications shall not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. Such communications may be considered in rating proposals for the purpose of establishing the competitive range;

(3)Are for the purpose of addressing issues that must be explored to determine whether a proposal should be placed in the competitive range. Such communications shall not provide an opportunity for the offeror to revise its proposal, but may address-

(i)Ambiguities in the proposal or other concerns (e.g., perceived deficiencies, weaknesses, errors, omissions, or mistakes (see 14.407)); and

(ii)Information relating to relevant past performance; and

(4)Shall address adverse past performance information to which the offeror has not previously had an opportunity to comment.

(c)Competitive range.

(1)Agencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range. Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant to paragraph (c)(2) of this section.

(2)After evaluating all proposals in accordance with 15.305(a) and paragraph (c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals ( 10 U.S.C. 3303 and 41 U.S.C. 3703).

(3)If the contracting officer, after complying with paragraph (d)(3) of this section, decides that an offeror’s proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award. Written notice of this decision shall be provided to unsuccessful offerors in accordance with 15.503.

(4)Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see 15.505 and 15.506).

(d)Exchanges with offerors after establishment of the competitive range. Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.

(1)Discussions are tailored to each offeror’s proposal, and must be conducted by the contracting officer with each offeror within the competitive range.

(2)The primary objective of discussions is to maximize the Government’s ability to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation.

(3)At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment.

(4)In discussing other aspects of the proposal, the Government may, in situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, negotiate with offerors for increased performance beyond any mandatory minimums, and the Government may suggest to offerors that have exceeded any mandatory minimums (in ways that are not integral to the design), that their proposals would be more competitive if the excesses were removed and the offered price decreased.

(5)If, after discussions have begun, an offeror originally in the competitive range is no longer considered to be among the most highly rated offerors being considered for award, that offeror may be eliminated from the competitive range whether or not all material aspects of the proposal have been discussed, or whether or not the offeror has been afforded an opportunity to submit a proposal revision (see 15.307(a) and 15.503(a)(1)).

(e) Limits on exchanges. Government personnel involved in the acquisition shall not engage in conduct that-

(1)Favors one offeror over another;

(2) Reveals an offeror's technical solution, including—

(i)Unique technology;

(ii)Innovative and unique uses of commercial products or commercial services; or

(iii)Any information that would compromise an offeror's intellectual property to another offeror;

(3) Reveals an offeror's price without that offeror's permission. However, the contracting officer may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion. It is also permissible, at the Government's discretion, to indicate to all offerors the cost or price that the Government's price analysis, market research, and other reviews have identified as reasonable ( 41 U.S.C. 2102 and 2107). When using reverse auction procedures (see subpart 17.8), it is also permissible to reveal to all offerors the offered price(s), without revealing any offeror's identity;

(4) Reveals the names of individuals providing reference information about an offeror’s past performance; or

(5) Knowingly furnishes source selection information in violation of 3.104 and 41 U.S.C.2102 and 2107).

Get it? See the issue? Understand?

Now, what would you do during a source selection if FAR 15.306 were to go away and all you had to deal with was the language in 10 USC 3303 and 41 USC 3703? Hmmm?

That, my colleagues, might be the challenge facing you under FAR 2.0.

Consider it an opportunity to excel, as an old general officer boss of mine used to tell me.

There a poster in my office showing a World War II American paratrooper standing in the door of a C-47 ready to jump into Normandy on D-Day. Outside the door German flak is exploding, tracers are rising up, C-47s are going down in flames, and parachutes are drifting down. The text on the poster says, "Everything will kill you, so choose something fun."

I hope for your sakes that FAR 2.0 is fun!

2 hours ago, joel hoffman said:

Every construction or A/E contract, whether commercial, private, state, local or Federal government has terms and conditions defining the roles and responsibilities and assignment of risk between the parties.

Yes, but the FAR helps with that above and beyond the private sector ones.   That socio-economic thing I mentioned.

2 hours ago, joel hoffman said:

Industry would go crazy if Federal contract terms and conditions were all over the place.

I guess industry was crazy before Federal contracting came along as I imagine every private contract was all over the place.

 

2 hours ago, joel hoffman said:

Case law didnt create these terms and conditions and I doubt that they are statutory.

I will just use Vern's most recent post to support that case law has an impact on the wording of FAR provisions and clauses.

36 minutes ago, Vern Edwards said:

Based on those texts, previous statutory versions of those texts going back to 1962, decades of mostly GAO "case law", previous procurement regulations, and subsequent regulatory analysis, policy making, and regulation drafting and redrafting leading up to the 1997 FAR Part 15 Rewrite, we got today's FAR 15.306, Exchanges with offerors after receipt of proposals,

 

38 minutes ago, Vern Edwards said:

I hope for your sakes that FAR 2.0 is fun!

Dumb me but I found the original FAR fun to a point and then it became an exasperation as it grew.  

What won't make 2.0 any fun is that it will be based on systems, AI and the like to alleviate the continued shrinkng workforce.    I for one think that the inability to lace ones boots up AS A CO, and head out to the field (as used in the broad context) will be the detriment to even 2.0.   But my idea of fun is different than that of others such as playing golf on a couch with a controller versus roaming (and I mean roaming) around a real golf course.   

If they gut the FAR 15 rewrite language concerning discussions, it probably wouldn’t matter much. From my perspective , many contracting officers never learned the differences between the pre-rewrite language and how to bargain for better performance anyway. Minimal negotiating-as though it were like having to get your teeth pulled. .

Had several KO’s in different Districts argue with me, stating that if the proposals meet the minimum requirements, they couldn’t negotiate in an effort to improve them. That’s how we got some design-build ugly buildings that were objectionable to the installations, for example. The previous FAR didnt really emphasize discussing weaknesses, from my memory.

11 hours ago, C Culham said:

Yes, but the FAR helps with that above and beyond the private sector ones.   That socio-economic thing I mentioned.

Huh? Im not referring to any of the socio-economic aspects of the FAR here. I’m talking about the A-E and construction contract-specific clauses and coverage, that are comparable to other non-FAR A-E and construction contracting models. They have been used a long before the FAR, going at least back to the beginning of the seventies in DoD contracting for construction and A-E contracting.

 

11 hours ago, C Culham said:

I guess industry was crazy before Federal contracting came along as I imagine every private contract was all over the place.

I’m referring to federal A-E construction contracts being all over the place without standardized formats and consistency within those specific areas. There are billions of dollars of DoD A-E/construction contracts alone awarded each year across the Services.

Obviously, there are various standardized formats and conditions for each State and local government contracting organizations. And when I was in private practice we used standard formats. 

 

1 hour ago, joel hoffman said:

Huh? Im not referring to any of the socio-economic aspects of the FAR here. I’m talking about the A-E and construction contract-specific clauses and coverage, that are comparable to other non-FAR A-E and construction contracting models. They have been used a long before the FAR, going at least back to the beginning of the seventies in DoD contracting for construction and A-E contracting.

Our perspectives I think align even though we may be debating.  I know one can argue what is good and what is not from an industry standpoint but then I wonder.  The quick examples. The Changes Clause, industry standard or government created?   Davis Bacon not socio-economic?   The discussed and cussed use of FAR part 12 for construction?  30,000 foot views that I know have history like that of FAR part 15 that Vern has mentioned but then I start wondering......to this

1 hour ago, joel hoffman said:

I’m referring to federal A-E construction contracts being all over the place without standardized formats and consistency within those specific areas. There are billions of dollars of DoD A-E/construction contracts alone awarded each year across the Services.

Obviously, there are various standardized formats and conditions for each State and local government contracting organizations. And when I was in private practice we used standard formats. 

I would offer that I think even with the FAR it is of sorts all over the place today.

In the end I wonder if history counts?  FAR 2.0 is the forward look and it will be interesting to see where it plans to take Federal contracting in total.

Remember that D-B is statutory. The original 1920’s  D-B threshold was higher than the current statutory threshold, which was understandably lowered during the 1930’s Depression era.

Trump won’t fight the labor unions there, even though the ridiculously low,  unchanged Depression era threshold is of no benefit to union labor. Applying D-B requirements to jobs that small is administratively wasteful (time spent and $) for both industry and gov’t.

Edit add: The changes clause allows the government to make unilateral, in-scope written or (case law - constructive) changes and establishes the basis for an equitable adjustment for increases or decreases (per case law) in the contractors cost  and time extensions, etc. The part 12,  commercial contract clause , allowing only bilateral agreement before making a change is unworkable for construction contracting - often resulting in delays, disruption and/or rework and other time schedule and cost impacts. $$$$ and T—-i—-m—-e——.

Edited March 29, 2025Mar 29 by joel hoffman
Addressed changes clause

By the way, there is much civil, UCC and common law litigation concerning disputes on non-federal construction and A-E contracting. There is  much variation, depending upon the particular state laws and jurisdictions  as well as jurisdictional precedent decisions.

Appeals of decisions are common. I used to get monthly summaries and still am subscribed to one monthly source. I still have a shelf full of yearly updates to such case law. Haven’t read them in 18 years but kept them because I’m too lazy to clean out my bookcase. 😆

State laws are heavily influenced by industry lobbyists and associations. I know from experience, having being a registered PE in two states.  

Can we get off architect-engineer and design-build contracting now and back to the original topic?

On 3/28/2025 at 5:26 AM, Vern Edwards said:

Question:

We have the Constitution.

We have the statutes enacted by Congress (positive law).

We have the common law decisions of the courts.

Why do we have regulations (administrative law)? What is their purpose?

Why do we have the FAR? What is its purpose?

Here is some background:

Congressional Research Service, R42826, The Federal Acquisition Regulation: Answers To Frequently Asked Questions (2024) https://www.congress.gov/crs-product/R42826

 

Under the Constitution, the President is the official charged with executing the law (Article II, § 1 and § 3). The Framers knew that the President would need others to carry out the President’s executive power. Here, the President appoints various officials (Heads of Departments/Agencies). In theory, we have regulations because they provide the details of statutory implementation because the laws often contain gaps. At some point, it would be good to discuss why there are gaps in statutes, but I won’t start that discussion here.

Someone already mentioned the FAR’s stated purpose so I want to highlight the fact that regulations aren’t the only choice for implementing statutes. Read Elizabeth Magill’s Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383 (2004). Keep in mind, even when regulations are used, the White House can override using the ‘regulatory review’ process.

Personally, I think the Congress sees the Executive as the subject matter expert on certain things and leaves it up to the executive departments to craft implementing rules. Congress controls and delegates implementation, in part, through the Administrative Procedure Act (APA). While we have regulations such as the FAR to implement, interpret, or prescribe law, they serve the practical purpose of providing standardization and predictability. In my opinion, what’s missing from regulations is a hard look into the usefulness/effectiveness and cost-benefit analysis.

We can reimagine all of this. If the current process doesn’t serve our needs, we should change it.

7 hours ago, Jamaal Valentine said:

At some point, it would be good to discuss why there are gaps in statutes, but I won’t start that discussion here.

Why are there "gaps" in statutes?

Congress enacts statutes (positive law) that delegate certain powers to agencies (that’s why they are called agencies), such as the power to buy goods and services.  Congress leaves "gaps" in statutes for a number reasons, ignorance and carelessness being among them, and also because its members cannot be expert in everything the government does𑁋like fight wars, design weapon systems, maintain public health, and control air traffic𑁋so they leave some details about implementation to people they expect to know more. And gaps may emerge after the enactment of laws due to unanticipated developments.

As agents of Congress, agencies publish regulations (administrative law) to inform the public about and direct their personnel concerning how they will use their delegated powers. The FAR is one such regulation. In doing so, agencies have as much discretion in the use of their delegated powers as the Constitution and the laws allow and as they choose to exercise.

The courts and various administrative tribunals review agency actions to determine whether they have been done in compliance with statutes and their own regulations. Their decisions often lead agencies to change their regulatitons, and sometimes prompt Congress to amend their laws.

A 100-page FAR would probably not be long enough to implement all the statutes that Congress has enacted to govern procurement. But a regulation that strikes out all text that does not implement a statute would presumably give agencies a lot more discretion than their own regulations currently allow. The question is whether the workforce is competent enough to exercise such discretion wisely.

21 minutes ago, Vern Edwards said:

As agents of Congress, agencies publish regulations

Solely agents of Congress? Are not the agencies agents of the President in that they assist in the President's effort via Article II, Section 3 of the Constitution to "take care that the laws are faithfully executed"?

4 minutes ago, C Culham said:

Are not the agencies agents of the President in that they assist in the President's effort via Article II, Section 3 of the Constitution to "take care that the laws are faithfully executed"?

@C Culham The Framers intended Congress to be the preeminent branch of government. See Whittington, THE PLACE OF CONGRESS IN THE CONSTITUTIONAL ORDER, 40 HARV. J. L. & PUB. POL'y 573 (June 2017):

It is no accident that the Constitution begins with Congress. The Founders understood that the legislature would be central to the new constitutional project. Congress would be the foundation stone upon which the rest of the governmental edifice would be constructed, and so it necessarily came first in the constitutional document and absorbed the bulk of the delegates' attention at the Philadelphia Convention in the summer of 1787. Getting the national legislature right, they believed, was their most important task if the government they were constructing was to be successful.

What is the president, if not an agent of Congress? According to the Constitution the president's job is to faithfully execute the laws they pass. Presidents need their consent to appoint cabinet officials, and they can remove presidents from office. A president cannot remove any of their members. And Congress has created many independent agencies. The president must report to them annually. They don't have to report to the president. Presidents must ask them to approve their budget, and they can override a president's veto.

Don't be fooled by the way various congresses and voters have let presidents behave.

Thank you

Thank you, Vern. This was an important refresh for me.

On 3/27/2025 at 6:08 PM, Melissa Rider said:

My agency firewall has problems allowing me to read the 100 page FAR posted on Linkedin.  Is there another way to view it?  

www.100pagefar.com or on your phone.