Too Big To Be Carried

[Vern Edwards]

I received my copy of the January 1, 2024 CCH "Baby FAR" last week. It include FAC 2024-02. At 2,396 pages it is the biggest edition EVER!

The January 1, 2023 edition contained edition contained 2,370 pages.

The January 1, 2020 edition contained 2,,313 pages.

Eighty-three pages added since Joe Biden became president. Not that there's anything wrong with that. 🤗

Here are some facts:

• FAC 2024-03 added added significant content about service disabled veteran-owned small business.
• FAC 2024-04 devoted Part 40, which had been reserved, to information and supply chain security. We can expect the addition of significant content.
• FAC 2024-05 added significant content about sustainable procurement.

The new FTC rule prohibiting noncompetes, issued last week but not yet published in the Fed Reg, will likely add more content. Maybe to Part 22. But it may be delayed by litigation.

Any notion of streamlining the FAR is a pipe dream. It's going to continue to grow. We're just talking the FAR. I don't know what to expect among the FAR Supps.

In another year or so CCH will have to publish its "Baby FAR" in two volumes. It'll be an unruly college student FAR.

[bob7947]

Maybe I should sell Wifcon-Wheelbarrows for it.

[formerfed]

Quote

We're just talking the FAR. I don't know what to expect among the FAR Supps.

Oh, they will grow as well.  We can’t have people thinking independently or acting differently than what we want them to. 

[C Culham]

Too big to carry, seldom a page turned, and soon to be replaced by AI.

[Voyager]

15 hours ago, C Culham said:

soon to be replaced by AI.

This sounds like procurement officials would be analogous to the coders at Google, tweaking the algorithms via lines of code (or, "CFR" in our case).  What would be the role of human judgment if government turned to this model?  Examples:

• Master of inputs into the code.  Problems include obvious elitism (we users of Alphabet's products are all unwitting puppets of the current Google coders)
• Waivers of any unreasonable outputs of the code

[formerfed]

This is pretty funny.  You may need to login to LinkedIn to see it

https://www.linkedin.com/posts/will-roberts-06372045_the-3000-ad-version-of-the-federal-acquisition-activity-7186392640194502656-rVoG?utm_source=share&utm_medium=member_ios

[General.Zhukov]

Preaching to the choir here, but...as bad as FAR is, the Agency ARs are worse.

Late year, HHS - which is very large - did 71,000 contract actions recorded in FPDS, for >40$ billion dollars. Of these 71,000 an underwhelming 0.1% (68) used FAR 14 Sealed Bidding procedures, for a tiny $13M (0.03%).   

In all of HHS, only seven Sealed Bid contracts for over $SAT were awarded.  Seven!  Out of 71,000.  1/10,000.  HHS is basically like "Nah, we aren't doing FAR 6.4 or FAR 14 anymore."  

 

Yet, HHS has a chapter of the HHSAR devoted to these rarest of contract actions. It's a short chapter, I grant you, but it's still a chapter at all.

 

This x 1,000. 

[C Culham]

19 hours ago, General.Zhukov said:

Preaching

You pique my interest.  How many were LPTA?

[General.Zhukov]

3 hours ago, C Culham said:

How many were LPTA?

Unfortunately, that's not in FPDS, my data source. However, the FAR goes on at length about things that aren't commonly done anymore.  To wit, last year HHS awarded as reported by FPDS:

• 23,330 New Contract Actions (not modifications nor "other" like OTAs)
• 22,270 Orders (Delivery Orders, Purchase Orders, BPA Calls)
• 1,000 Definitive contracts
• 297 definitive contracts which had >1 offer received.   That is 1%.
• 1 multiple award IDIQ, which was awarded by the CDC.  
• 0 Basic Ordering Agreements
• 0 Price evaluation preference for HUBZone per FAR 19.13
• 0 Partial set-asides of multiple-award contracts per FAR 19.13

Now the caveat is that the data in FPDS is of varying quality and reliability, so these numbers are approximations.  Someone in HHS other than the CDC did a multiple-award IDIQ last year, surely.  Interpret only 1 multiple-award IDIQ in HHS as meaning this type of contract is very rare, but not literally 1/23,330.  

The point is twofold, first is that the FAR is full of stuff that, at least for HHS, is irrelevant and nobody would even notice if those sections of the regulations disappeared, and second, this is a fact which everyone already knows but nobody can do anything about.

[formerfed]

On 4/29/2024 at 5:20 PM, Vern Edwards said:

Any notion of streamlining the FAR is a pipe dream. It's going to continue to grow. We're just talking the FAR. I don't know what to expect among the FAR Supps.

I agree.  The funny thing is people talk about streamlining, innovation, adoption of best practices particularly from the commercial side, benchmarking against best in class, and on and on.  But when new acquisition concepts come up with minimal guidance, no one wants to try them.  They wait for more detailed guidance, step by step instructions, and blessing all the way down the management chain to their immediate supervisors.

The FAR, which may be the bulk of what’s really needed, will continue to grow especially along with FAR supplements, agency guidance and policy documents so everything gets done using approved uniform approaches.  That gives both management and employees the comfortable way to do work.

[Jamaal Valentine]

FAR 1.102-2(b): “Minimize administrative operating costs.

(1) In order to ensure that maximum efficiency is obtained, rules, regulations, and policies should be promulgated only when their benefits clearly exceed the costs of their development, implementation, administration, and enforcement. This applies to internal administrative processes, including reviews, and to rules and procedures applied to the contractor community.”

Where can the public find the cost-benefit analysis?

[C Culham]

14 hours ago, Jamaal Valentine said:

Where can the public find the cost-benefit analysis?

I would imagine no where.  

15 hours ago, formerfed said:

The funny thing is people

Yep, "We" the people.   Admittedly I am like many to jump to a answer or thought regarding an original post with some convoluted reasoning based on regulation as to why or why not o.   As opposed to just picking a logical avenue.  I do believe regulations are necessary to allow fair access to the Federal dollar by the likes of someone like me but in truth it would seem what has been created and furthered by regulation might just stiffle me from that access.

[formerfed]

16 hours ago, Jamaal Valentine said:

Where can the public find the cost-benefit analysis?

 

59 minutes ago, C Culham said:

I would imagine no where.  . 

Carl’s answer is probably true.

The rule making process requires compilation and publication of several pieces of information and cost and anticipated benefits are part.  See this example where both areas are covered towards the end  Fed Reg notice of proposed rule  But having seen this actually done a couple times at least the cost data isn’t substantiated with throughly documented backup.  It’s hard to fantom how benefits could be accurately and objectively compiled either.  Nothing is really scrutinized closely.  What Carl said is true - I don’t see anyone being able to produce a true cost-benefit analysis if asked.

[Vern Edwards]

The FAR is Chapter 1 of Title 48 of the Code of Federal Regulations.

It is subdivided into 8 subchapters, A through H.

Measuring by page count, either in the CCH baby FAR or in the acquisition.gov pdf FAR, which subchapter is the largest, excluding H (which includes Parts 52 and 53, and is the largest of all)?

Now look at the current report of Open FAR Cases (as of 5/3/2024). What are most of them about?

What do the answers to my questions suggest to you?

[formerfed]

2 hours ago, Vern Edwards said:

What do the answers to my questions suggest to you?

D is the largest subchapter and is the subject of the most open FAR cases.  That suggests that the acquisition process is clearly being used to promote political goals.  

[Voyager]

Can the

21 hours ago, Jamaal Valentine said:

benefits

Of

1 hour ago, formerfed said:

political goals

Even be measured?

[Vern Edwards]

2 hours ago, formerfed said:

That suggests that the acquisition process is clearly being used to promote political goals.  

Suggests? Suggests???

Acquisition is about spending money, and money is the mother's milk of politics.  Go back and look at the FACs that have been issued to implement policies of the current administration.

The phrase "small business" appears 1,908 times in FAR.

The government spends more on services than on anything else. The phrase "service contract" appears 270 times. The phrase "statement of work" appears 46 times. The phrase "performance work statement" appears 7 times.

Makes you wonder. What's more important, what you buy or whom you buy it from.

[Vern Edwards]

The word employee/s appears 1,279 times.

[RJ_Walther]

On 5/4/2024 at 3:31 PM, Vern Edwards said:

Makes you wonder. What's more important, what you buy or whom you buy it from.

Clearly, to the rule writers, whom you buy it from (which is I think part of how you buy it) is more important. What you buy (at the end item-level anyway) usually doesn't even figure.

And this is hardwired into the procurement system starting at the local office reviewer level up through every level of policy maker by the fact that people move from procurement to oversight/policy and not the other direction, so the people writing the rules are out of the buying business (if they were ever in it). In a perfect world you would have no permanent policy/oversight positions and the rules would be written by people who would rotate back to be subject to the rules they make.

[REA'n Maker]

Two words: Covid clauses.

Truly the most bass-ackwards attempt ever to shove a political litmus test down our throats in the form of 'procurement policy'.  I'm still waiting for the explanation of how unelected bureaucrats were able to make going to work illegal - my agency actually gave me a "freedom of movement authorization letter" in 2020 (because we were special, AKA, "good enough for thee but not for me").

[Vern Edwards]

1 hour ago, RJ_Walther said:

Clearly, to the rule writers, whom you buy it from (which is I think part of how you buy it) is more important. What you buy (at the end item-level anyway) usually doesn't even figure.

Unfortunately (or fortunately, depending on how you see it) FAC 2024-05's addition of a new FAR Subpart 23.1 on "sustainable procurement" indicates that what you buy can also be very important. (That FAC is 39 pages long in the Federal Register version. As of this morning it has not yet been posted to acquisition.gov.)

BTW, see today's Wall Street Journal story, "Biden Races to Trump-Proof His Agenda":

Quote

The past few months have seen a frenzy of regulatory activity. In April, government agencies finalized nearly three dozen economically significant regulations, more than during any single month of Biden’s presidency, according to the George Washington University Regulatory Studies Center. New policy announcements from the White House are being rolled out multiple times each week on issues ranging from tighter environmental rules to new restrictions on noncompete agreements. 

Look for more FACs in the coming weeks and months. For instance, look for new rules prohibiting contractor use of employee noncompete agreements based on the recent Federal Trade Commission final rule.

The FAR is gonna grow even more.

[formerfed]

I just scanned highlights of FAC 2024-05.  This one piece is indicative of why the FAR is growing.  Ridiculous.  Why should the government in its procurement regulations be telling contractors to ban texting while driving?  

Quote

Non-environmental matters, to include requirements for a drug-free workplace and encouraging contractors to ban texting while driving, are moved to FAR part 26

 

[C Culham]

35 minutes ago, formerfed said:

Why should the government in its procurement regulations be telling contractors to ban texting while driving?  

Ask former President Obama and former and current Presidents to date who have not revoked/cancelled the EO!

https://www.federalregister.gov/documents/2009/10/06/E9-24203/federal-leadership-on-reducing-text-messaging-while-driving

[formerfed]

The entire FAR growth issue is a bandwagon that continuously is picking up cargo and speed.  Once items get in the FAR, they seldom come out especially when they support some political ideology.  But Biden’s actions are unprecedented just by the sheer volume.

1102’s are expected to properly navigate through this maze without sacrificing speed and quality of award outcomes.  At the same time political leadership claims they want and need the best companies to be partnering with the government.  That’s ironic because many of top companies are stay away partially due to having to comply with an excessive number of rules as well as requirements to disclose detailed data with severe penalties for improper compliance.

The example of texting and driving is just one of many.  Practically nobody thinks that’s a good idea but including it in the FAR?  I could go on and on with other examples but I won’t. 

[joel hoffman]

6 hours ago, formerfed said:

The example of texting and driving is just one of many.  Practically nobody thinks that’s a good idea but including it in the FAR?  I could go on and on with other examples but I won’t. 

If the state law prohibits texting while driving, that likely is already a contract requirement. No need to duplicate it…