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Reversing death of commercial item contracting


formerfed

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Interesting article from FedNews Network

https://federalnewsnetwork.com/commentary/2022/09/reversing-the-slow-painful-death-of-commercial-item-contracting/

Tying in with other threads on the FAR , some statistics. With FASA initially in 1995, only 28 clauses could be included in a commercial contract.  Only six were required.  Now 94 clauses exist with 34 required.  There are 22 required flow down clauses for subcontracts.

The section 809 panel identified 109 clauses (54 FAR and 55 DFARS) that don’t meet the statutory requirement for inclusion. I’m not going to look it up but why would DoD need another 55 clauses apart from the FAR for commercial items?

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Last time I checked, I don’t have access to the DFARS matrix, so can’t easily look it up, either. Perhaps you should look some up and then ask Congress, who keeps adding more DoD specific requirements in response to industry gripes and concerns. 

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2 hours ago, formerfed said:

Tying in with other threads on the FAR , some statistics. With FASA initially in 1995, only 28 clauses could be included in a commercial contract.  Only six were required.  Now 94 clauses exist with 34 required.  There are 22 required flow down clauses for subcontracts.

The section 809 panel identified 109 clauses (54 FAR and 55 DFARS) that don’t meet the statutory requirement for inclusion. I’m not going to look it up but why would DoD need another 55 clauses apart from the FAR for commercial items?

Surprised? This past June I wrote in The Nash & Cibinic Report, "RETREATING FROM REFORM: We Have Met The Enemy, And He Is Us!'," in which I said:

Quote

 

After the enactment of FASA, in "The New Rules for Multiple Award Task Order Contracting," 9 N&CR ¶ 35, we [Cibinic, Nash, and I] predicted:

"The multiple award preference policy states that every awardee must be given a “fair opportunity” to be considered for the award of each task order in excess of $2,500. The proposed rule leaves the choice of evaluation factors to the CO's discretion. The CO need not publish a synopsis, solicit written proposals, or conduct discussions with awardees prior to the award of a task order, proposed FAR 16.505(b)(1). The rule precludes protests against task order award decisions. Agencies must appoint task order “ombudsmen” to handle complaints from awardees about task order selections, proposed FAR 16.505(b)(4).

Notwithstanding these liberal policies, it is not difficult to imagine Government procurement officials conducting a mini‐source selection before the issuance of each task order. Some will almost certainly consider a more formal procedure to be necessary to ensure fairness. One can easily imagine requests for proposed task order “performance” plans or “management” plans, especially for task orders of significant dollar value. One can also imagine requests for extensive cost breakdowns, certified cost or pricing data, and proposal audits. If too complex and demanding, such procedures would significantly increase an agency's administrative costs, extend the lead time associated with task order issuance, and force awardees to incur significant costs in the preparation and negotiation of task order proposals."

And that is exactly what happened. In 2012 we reported:

In October 1995, the original implementation in FAR 16.505(b) of the “fair opportunity” procedures for awarding task order contracts was 565 words long and protests could not be lodged against task order awards. Today that paragraph is 2,201 words long and protests are authorized for large orders.…The rules were made more restrictive and prescriptive and protests were authorized because contracting personnel did not obey the regulations. Instead, they devoted their creativity and innovation to finding ways to twist, bend, and break the rules.

See "Knowledge of the Regulations: Is That All It Takes?," 26 N&CR ¶ 56. Since then FAR 16.505(b) has grown by 190 more words to 2,391 words. A regulation‐writer can cram a lot of process‐burden into 190 words.

 

Our government—not just the Congress, but also the presidents with their executive orders—cannot help itself. The pursuit of acquisition reform reminds me of the quest for the Holy Grail, except that, in the Arthurian legend, Galahad found the grail. It has since been lost again.

You cannot reform acquisition. Not even Indiana Jones could reform acquisition. It's harder than reforming education.

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Only an approach via negativa can solve this.  Subtract to add, repeal to grow industries.  American rule of law is like the computer industry of the early 2000’s: a bloated, complex book of codes just ripe for disruption by the simple iPhone.  Who knows, perhaps in a decade I will be comparing the obsolescence of the overly complex F-35 weapon system to a similarly disruptive product, too.  That’s me being hopeful.

President Trump tried to require two rules be removed for every one final rule, but that wasn’t the disruption we needed.  Perhaps there is another way.

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