@General.Zhukov

10 hours ago, General.Zhukov said:

Part 34 describes "acquisition policies and procedures for use in acquiring major systems consistent with OMB Circular No. A-109." The elusive OMB Circular A-109. I challenge you to find this document online and provide a link to it. Go head, search for it. Spoiler: It is very hard to find. Nobody has read this circular in decades.

Georgy,

As a favor to you, the webmaster has posted OMB Circular A-109, Major System Acquisitions, 5 April 1976, to the Wifcon Bulletin Board in downloadable pdf format under the heading Rules.

Vern

In light of recent comments in this discussion, a pdf of OMB Circular A-109 has been posted to the Wifcon Bulletin Board.

Thank you for posting the circular! I appreciate the response, and this is why wifcon is great.

New EO: https://www.whitehouse.gov/presidential-actions/2025/04/restoring-common-sense-to-federal-procurement/

Can anyone hypothesize (predict? project? get a ouija board answer? put together a well-engineered ChatGPT prompt?) on what might be the effect on signed contracts already in place if certain "clauses incorporated by reference" end up getting stricken from the FAR, or moved to the Guidebook, thus invalidating the incorporation mechanism?

I guess I can envision some scenarios:

• Such clauses will still be in force and remain in the contract, but all contracts are changed so that the reference points to the supplemental Guidebook instead of to the FAR

• Such clauses are simply removed wholesale from the contracts, and mods are issued accordingly

• Such clauses are removed through negotiation in a piecemeal fashion, contract by contract, CO by CO, vendor by vendor, contract by contract...

• Any such clauses are just ignored, and it’s up to us as a contractor to request the government to remove them because the "incorporation mechanism” is no longer valid

• Any such clauses are left intact, but there will be a blanket superseding rule or clause that describes how to treat clauses incorporated by reference where there are now invalid references

• Any such clauses are just ignored, and we all wait for case law to develop for when someone decides to ignore an incorporated clause and the government attempts to enforce it but finds out they cannot

• COs will learn to use AI to rewrite contracts to, wholesale or piecemeal, to simply change the incorporation mechanism and instead of incorporated-by-reference make each clause incorporated-by-full-text.

Any other implementation scenarios anyone can think of? Any of these that can reasonably be ruled out? Thanks!

@Drew Of all the scenarios you envision, the correct one is missing...a change to the FAR does not suddenly invalidate the clauses on the contract, even when incorporated by reference. Previous versions of the FAR are still available online and, presumably, will be following this rewrite (see the archives section: https://www.acquisition.gov/archives?type=FAR).

Just now, Drew said:

Can anyone hypothesize (predict? project? get a ouija board answer? put together a well-engineered ChatGPT prompt?) on what might be the effect on signed contracts already in place if certain "clauses incorporated by reference" end up getting stricken from the FAR, or moved to the Guidebook, thus invalidating the incorporation mechanism?

No effect! None whatsoever!

The clauses in existing contracts will continue to be in effect and available in regulatory archives. You do know that there are regulatory archives, right?

I must say that inquiries of this sort are utterly unjustified.

Nope, sorry, did not know that there were regulatory archives and that they would be referenceable and enforceable. This was a newbie question. I don't agree that these questions are utterly unjustified, but appreciate posters directing me to the correct references and structure. Not everyone is approaching the master or journeyman levels of competence, and discussions which include apprentice-level questions help apprentices learn. @Matthew Fleharty, thank you for your gentle guidance.

Now I would ask for any hypotheses and speculations on intentions, and possibly gaming out some what-ifs. (Maybe, unstated, that's what my OP assumed and really intended.) If current administration policy means to make contracting simpler and more effective today, then it could be that as regulations are removed the administration also intends to remove the enforcement and enforceability of such regs. To have a real-world effect on what's happening with current contracts, rather than just future contracts. Maybe not, and maybe that's where the guidebook and archives will come into play. But it seems that at this policy and political inflection point if a given reg is removed from the FAR, then the administration would intend not only for it to become inoperative for future solicitations, but also non-operational for current contracts.

If that's the case - and I admit this is a speculative question - is the administration hamstrung by any constraint that would force it to just default to archival references and leave all such clauses in place in existing contracts? Or could we see a further step to somehow remove the effectivity of these clauses from current contracts? If the latter, how would (could) that manifest itself?

If a what-if or speculative question of this sort is not justified, then my apologies to the group.

Section 1 of this Executive Order states "Executive Order 14192 of January 31, 2025 (Unleashing Prosperity Through Deregulation), established that the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds and to alleviate unnecessary regulatory burdens placed on the American people.  Reforming the FAR will advance this objective." (emphasis added).

Therefore, Section 2 of this Executive Order states that it is the policy of the Unites States to work toward "removing undue barriers, such as unnecessary regulations, while simultaneously allowing for the expansion of the national and defense industrial bases is paramount."

Assuming the re-write occurs in the next year and, for example, FAR 52.222-62 Paid Sick Leave Under Executive Order 13706 is eliminated from the FAR,  do we believe that the buying agency will expect a reduction in contract price in future contracts covering similar work to reflect the removal of an "undue barrier" that was in one contract and not in a future contract? Will they expect consideration (reduction in price) in exchange for removing that clause from an existing contract?

Of course, there are likely similar state local law requirements in some jurisdictions, but perhaps not all, and I do understand the example is simple and there may be dozens of clauses in the aggregate that are removed.

If a company opts to keep a policy that was eliminated from the FAR, might that be considered an unallowable cost under FAR 31.201-2(a)(4)? Agree, it is a reach and a strained read but it would possibly fit within the policy outlined in the Executive Order.

Just now, User 34 said:

Assuming the re-write occurs in the next year and, for example, FAR 52.222-62 Paid Sick Leave Under Executive Order 13706 is eliminated from the FAR,  do we believe that the buying agency will expect a reduction in contract price in future contracts covering similar work to reflect the removal of an "undue barrier" that was in one contract and not in a future contract? Will they expect consideration (reduction in price) in exchange for removing that clause from an existing contract?

I think it would be reasonable to anticipate that possibility,. But they would not (or should not) consider a price reduction to be a matter of "consideration." They would just expect you to propose a lower price because your costs are lower than they were.

You might want to look up the meaning of "consideration" in the context of contracting.

Just now, User 34 said:

If a company opts to keep a policy that was eliminated from the FAR, might that be considered an unallowable cost under FAR 31.201-2(a)(4)? Agree, it is a reach and a strained read but it would possibly fit within the policy outlined in the Executive Order.

No. It would not be a matter of cost allowability. But some contracting officers might think that it makes your price too high in comparison with the prices of other competitors.

20 minutes ago, Drew said:

To have a real-world effect on what's happening with current contracts, rather than just future contracts. Maybe not, and maybe that's where the guidebook and archives will come into play. But it seems that at this policy and political inflection point if a given reg is removed from the FAR, then the administration would intend not only for it to become inoperative for future solicitations, but also non-operational for current contracts.

Okay, so what you want to know is whether making a past policy, like EEO, inapplicable to future contracts might prompt the government to also renegotiate existing contracts to which the policy now applies, the goal being to educe their prices and claim savings. Is that a correct interpretation of what you want to know?

If that is correct, then I think that is a possibility. (What isn't under the current administration?)

However, that is very speculative. The government will either do that or it won't, and if it does we'll all hear about it. It would create a considerable workload, which might preclude that course of action.

A more interesting question is how people will do their jobs without the rules to which they have become accustomed and dependent.

"Okay, so what you want to know is whether making a past policy, like EEO, inapplicable to future contracts might prompt the government to also renegotiate existing contracts to which the policy now applies, the goal being to [r]educe their prices and claim savings. Is that a correct interpretation of what you want to know?"

Let's leave the goal part out of it, but yes. (User34 brings up the idea of cost reduction. But frankly, as we all recognize, anything's possible. And one possible goal could be to give a windfall profitability increase to those companies who are on contract today. Certainly not in the taxpayer's best interests, of course, but ... Another goal could simply be to eliminate social regulation, or mandated social responsibility, and if it reduces costs or increases profitability, then those are side benefits.)

And yes, the question is admittedly speculative. It's the forecasting of the "considerable workload" that I am interested in and how it might be managed or mitigated.

And yes, too, the more interesting question is definitely how people will do their jobs without the rules they've become accustomed to. For those of us in industry it could have whipsaw effects as a population of COs unevenly learn (as would any population of individuals) to navigate the new uncharted, undocumented terrain.

https://www.acquisition.gov/content/revolutionary-far-overhaul

"The goal is clear: faster acquisitions, greater competition, and better results."

They're not going to get that through FAR reform. That just shows how foolish and clueless they are.

1 hour ago, Vern Edwards said:

"The goal is clear: faster acquisitions, greater competition, and better results.

Those three points also could be at odds with each other

Three more Executive Orders to watch:

https://www.whitehouse.gov/presidential-actions/2025/04/ensuring-commercial-cost-effective-solutions-in-federal-contracts/

Quick summary: Requires agency senior procurement executive review and approval of all non-commercial purchases. No military exemption. This will affect DoD, DoE, and other specialized technical requirements especially. Very aggressive timelines (next 30-60 days).

https://www.whitehouse.gov/presidential-actions/2025/04/reducing-anti-competitive-regulatory-barriers/

Quick summary: Directs agencies within 70 days to identify any regulations that create monopolies or barriers to entry, including those that "unnecessarily burden the agency’s procurement processes, thereby limiting companies’ ability to compete for procurements".

https://www.whitehouse.gov/presidential-actions/2025/04/restoring-common-sense-to-federal-office-space-management/

Quick summary: Revokes Carter-era EO requiring locating agency buildings in central business districts and seeks immediate amendment of related federal regulations. Agencies will likely use this authority to relocate offices in the name of cost savings, then require employees to move or quit as their position has relocated. When combined with the recent EOs on FM-LR (which exempted most federal agencies and their employees from labor protections) and consolidating procurement (moving common goods/services and IT acquisitions to GSA), a significant reshaping of the federal workforce is likely coming beyond firing temporary employees--especially for those living in DC or blue states.

And one Presidential Memorandum:

https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/

Quick summary: I posted earlier, but this is perhaps the most important document recently published. It directs expediting the rescinding of regulations that the Administration deems "illegal" (example: claims of non-statutory regulations, like the first Supreme Court case listed in the EO). This is the legal justification that agencies will most likely rely on to support class deviations from current regulations to bypass the public notice-and-comment period required by federal law (the APA and related laws). The self-imposed 10-to-1 reduction rule (10 rules eliminated per 1 new rule added) is the policy vision, but this Memorandum provides the power and justifying defense to accomplish it.

Finally, a few personal thoughts on FAR 2.0.

It is one thing to say regulations must be cut back (I think most of us would agree). It is another, however, to cut nearly everything except statutes, leaving the FAR much worse off than most state procurement regulations.

Federal statutes do not provide comprehensive rules and rights like state UCC commercial codes (for goods) or the common law of contracts (for services). There's a reason state-level procurement regs are shorter--they already have a decades-old foundation of state goods and services law as a starting point, and contract types are less complex. Federal law doesn't have that. Instead, we've relied for years on the FAR to fill those gaps.

It is unlikely that DOGE or even senior agency procurement executives will understand this lack of foundation, as few have substantial state or private goods/services contracts experience. It is even less likely that Congress will step in and fill this void.

Contract law is also not "uniform" across the states--each one has its own peculiar rules. (Fun fact: I asked ChatGPT to build a chart showing the percentage that each state's laws deviate from the model UCC ... it told me it was too hard and AI couldn't do it ... and contract common law for services varies even more across states.) So which state or states should serve as the model for new federal procurement law?)

Court, Board, and GAO decisions often decide cases based on regulations. If most regs are eliminated, cases interpreting them may be out the window, with not much left to anchor on or interpret. But its not like disputes will just stop occurring with contractors. They'll have to create new rules, probably with more disputes filed under FAR 2.0.

Contractors are especially at risk. I doubt most folks on the rewrite team will be considering procedural protections against government abuses, for example the right to comment on negative evaluations. I've worked for both government and contractors for many years, and the reality is those abuses do sometimes happen. Not all the time, not most of the time, but enough that protections are needed.

Finally, and nearest the front lines where most work gets done, most of FAR Parts 4, 12 to 17, 31, and 42 to 49 are non-statutory procedures, but critical to fairness, transparency, orderliness, and predictability. Imagine 1102s and contractors without those Parts, or statutes or other rules to guide them on the most common day-to-day matters. I suspect some sections will survive (for example, hard to have statutorily required FPDS, FAPIIS, or CPARS without consistent contract numbering or any guidance whatsoever on what to report). But for sections cut, will it be a thoughtful discussion or made based on lack of knowledge, fear of reprisal, exhaustion and pick-your-battles, or a political edict?

The small details matter to the front lines. I hope for their sake common sense survives.

@6K Petunias

Great post! Thanks!

On 3/20/2025 at 2:30 PM, Vern Edwards said:

They are not going to add anything. Instead, they are going to "line out" all text that is not required by statute. They may also line out text that is related to a statute but not essential to implementing the statute. Text based on executive orders will be lined out, since it is not based on statute.

Rewrites of FAR Parts 1 & 34 officially posted.

https://www.acquisition.gov/far-overhaul/far-part-deviation-guide

https://www.acquisition.gov/sites/default/files/page_file_uploads/Part-1_LineOut.pdf

https://www.acquisition.gov/sites/default/files/page_file_uploads/Part-34_LineOut.pdf

Good yet slightly different view from LinkedIn. I really like her perspective on mission first and time matters. This will be a shocking awaking for those that are hesitant to do things quickly and want to be absolutely sure everything is perfect before proceeding.

Mission First, Time Matters: No...

Mission First, Time Matters: No More Hiding Behind the Rules

Let's be honest: when you hear " Revolutionary FAR Overhaul," (RFO) does your heart sink a little? We've all been promised simpler, faster, better acquisition processes before, only to be met with...

It. Will certainly be interesting.

In my over forty years in the military and government I found that very few in the military or the government mission or in acquisition treat the taxpayer’s money like their own. They generally weren’t interested in economy or saving money.

The mission users and program managers simply “wanted it all” and wanted to spend up the budget so they wouldn’t face future budget reductions for failure to spend it all.

—-————————————————————

The Air Force in particular had Rolls Royce tastes, desires and demands even when on Yugo budgets, when it came to acquiring facilities.

When I was in the Air Force in the early 1970’s, the USAF was essentially broke. We only had enough money to use the xerox machine in our office for about the first 15 days of each month. If I need to contact any commercial business or any non-DOD entity by phone that wasn’t a local call to an installation with Autovon, I would have to charge calls to my personal phone number.

In my opinion, the desire for Ferrari quality, features and grandeur was realized after Ronald Reagan tripled the Defense Budget over three years, faster than DOD could fully define programs to spend it all. The strategy was to essentially bankrupt he Soviet Union in attempting to keep up with the US DOD. It worked.In my opinion,

But once the trend was established there was no retreat from unbridled desires.

For many years, almost every new USAF construction project contract was awarded well above 100% of the Programmed Amount. They were crafty though. Every year they put enough lower priority projects in the AF MILCON Program to fund the overruns to award new contracts or pay for changes. I forget what the statutory limit on individual project costs was (maybe 125% of the Programmed amount?) but it wasn’t uncommon to get close to the statutory limit.

Many organizations, including those I worked for tend to be self perpetuating bureaucracies. They need to come up with new requirements to justify their existence.

This is an interesting comparison of FAR part 1 with the replacement deviation version. I know Don did this earlier but it’s easier to post using the GSA site. The new version is roughly 14 pages compared to 45. While some material is new, the replacement wording for the same subject area is succinct. The original demonstrates preparation by committee without involvement of an editor whose job is ensuring conciseness without losing context. I know the strikeout excludes language not required by statue but this still shows how the government loves lots of words.

@formerfed That's just the line-out version. It doesn't show the additions. I can't attach the line-in line-out version here because it's too big, but you can see it here: https://www.linkedin.com/posts/donald-mansfield-181b6425_compare-docs-version-of-current-and-proposed-activity-7325645767174410240-oB6w?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAVVFfEBGwwV9lul0QXOYxogw54s42KVA9c

On 4/16/2025 at 1:28 PM, Drew said:

Okay, so what you want to know is whether making a past policy, like EEO, inapplicable to future contracts might prompt the government to also renegotiate existing contracts to which the policy now applies, the goal being to [r]educe their prices and claim savings. Is that a correct interpretation of what you want to know?"

You might keep in mind that contractors can take the position that government desire to negotiate FAR/Agency clauses of a fully executed contract without a change notice requires consent of the contractor.

@Don Mansfield Got it. Thanks for clarifying

I have to laugh at the interest in the early work of the FAR overhaulers. So far they've taken about a month to publish revisions of low-hanging fruit like Parts 1, 10, and 34.

Let's see what they do with Part 7, Subparts 9.4 and 9.5, Part 12, Parts 15, 19, 22, 25, 27, 32, 42, 44, and 45, and, of course, Subpart 52.2.

There's a long and winding road ahead.

And who are the people working on this? What are they qualifications? How are they organized? What is their process? Who are their consultants?

It is said that acquisition personnel are professionals. Well, would any true profession𑁋such as engineering, law, or medicine𑁋go along with unknowns working on something as important as, say, a new edition of the Restatement of Contracts?