FAR Facts

[Vern Edwards]

Here are some facts about the Federal Acquisition Regulation:

• FAR Subpart 52.2, Text of Provisions and Clauses, contains 577 boilerplate texts, which occupy 573 FAR pages. That number does not include "reserved" subsections. (All FAR page counts in what follows are from the official pdf three-ring binder edition, which can be downloaded from Acquisition.Gov, and which is now 2,018 pages in length as of FAC 2024-05.)
• The FAR part that prescribes the largest number of such provisions and clauses is Part 47, Transportation, which prescribes 67 texts, which occupy in 31 pages, an average of less than ½ page per text.
• FAR Part 22, Application of Labor Laws to Government Acquisitions, is second, prescribing 52 texts, which occupy 48 pages, an average of .92 pages per text.
• FAR Part 32, Contract Financing, prescribes 39 texts, which occupy 45 pages, an average of 1.15 pages per text.

The length of a text is suggestive of its complexity, but not determinative.

The provisions and clauses in FAR Subpart 52.2 refer to the United States Code (USC) 474 times and to the Code of Federal Regulations (CFR) 347 times, often incorporating parts into a provision or into a clause and thus into a contract.

See e.g., FAR 52.222-41, Service Contract Labor Standards, paragraph (b):

Quote

(b) Applicability. This contract is subject to the following provisions and to all other applicable provisions of 41 U.S.C. chapter 67, Service Contract Labor Standards, and regulations of the Secretary of Labor (29 CFR Part 4). This clause does not apply to contracts or subcontracts administratively exempted by the Secretary of Labor or exempted by 41 U.S.C. 6702, as interpreted in Subpart C of 29 CFR Part 4.

29 CFR Part 4 is 79 pages long in the Government Publishing Office (GPO) official annual CFR pamphlet for 2023.

The provisions and clauses prescribed in FAR Subchapter D, Socioeconomic Programs, Parts 19 through 26, tend to cite the USC and the CFR more than the provisions and clauses prescribed in other FAR subchapters, and thus tend to be more complex. This is because such programs are usually created by Congress and are under the control of specific agencies, like the Small Business Administration or the Department of Labor, which issue their own regulations. And whenever the government creates programs for special groups or purposes the rules issued by the cognizant agency tend to include complex definitions and procedures.

Government contracting is not a simple business, and the FAR System is among the most massive and complex of all government regulations. Learning the business and the regulation is a the work of a professional lifetime. The ability to do research in this business is a sign of high professionalism.

[formerfed]

1 hour ago, Vern Edwards said:

Government contracting is not a simple business, and the FAR System is among the most massive and complex of all government regulations. Learning the business and the regulation is a the work of a professional lifetime. The ability to do research in this business is a sign of high professionalism.

Yes.  Plus it involves continuous awareness of changes and interpretations of regulations, policies, legal decisions, and operational practices throughout the government.  It’s a never ending process to stay current.  It also involves the ability to communicate that knowledge and expertise to others and apply it to practical situations.  That often separates a bureaucratic policy person from an exceptional operational contracting officer.

[Vern Edwards]

@formerfed:

Is this system fair to contractors? The complex clauses and the incorporation of the USC and the CFR? Contracts adding up to hundreds and even thousands of pages? Short bidding times and the lack of meetings before award?

[formerfed]

@Vern Edwards In my opinion, absolutely not.  The very largest defense contractors have knowledgable and experienced contract staffs.  But the majority of contractors don’t.  In most cases, they propose on blind faith and don’t fully understand what they fully are committing to.  Then if they are successful in receiving a contract award, their vulnerabilities can be exposed.  The government has the ability to bankrupt and destroy a naive contractor for noncompliant performance. 

[joel hoffman]

If that isn’t bad enough, what about subcontractors and suppliers, who may or may not even be provided access to the prime contract or solicitations. 

[Vern Edwards]

@formerfed @joel hoffman

FYI, Supreme Court Justice Gorsuch has written a book entitled, Over Ruled: The Human Toll of Too Much Law, which will be released later this month. He was interviewed about it by David French in the August 4 edition of The New York Times. At one point the Justice said:

Quote

I've been a judge for about 18 years now. And I just have seen so many cases in which ordinary, hard-working, decent Americans, trying to do their best and intending no harm to anyone, just get caught up in a wall of rules or laws that they didn't know existed.

But not even contracting officers know about all the rules that are incorporated into the contracts they award, rules that have little if anything to do with what they are buying.

The August 5, 2024 edition of the Federal Register: 539 pages, 108 documents from 45 agencies, 90 notices, 8 proposed rules, 10 rules.

And no one knows how much we spend annually on litigation concerning all those rules.

It's madness.

[formerfed]

@Vern EdwardsIt appears the situation will only get worse.  The FAR and supplementing regulations, policies, procedures, along with detailed agency instructions steadily increases in coverage.  At the same time we continuously more towards automated tools to do work.  That takes away the need for contracting personnel to understand what the rules say.  Compounding all this for both government and industry is the desire for streamlining  with speed - there’s no time for detailed examination.  It’s almost blind reliance on the given processes.  

[C Culham]

15 hours ago, Vern Edwards said:

Is this system fair to contractors?

Yes.  While the rules of the game are complicated a contractor, any contractor, can find qualified people to hire or engage as needed.  Name one entity that you do business with that has something like the FAR to tell you every angle of how that business is to conduct the game.  My worst examples, medical care and mortgage companies (buying money).

 

15 hours ago, Vern Edwards said:

The complex clauses and the incorporation of the USC and the CFR? Contracts adding up to hundreds and even thousands of pages? Short bidding times and the lack of meetings before award?

Factually yes.  But on  the other hand what about those in the acquisition community that are subjec to the FAR that mess it all up by not conducting their business pursuit to the FAR.   In these case they complicate the madness by not playing the game right.

 

17 hours ago, Vern Edwards said:

Government contracting is not a simple business, and the FAR System is among the most massive and complex of all government regulations. Learning the business and the regulation is a the work of a professional lifetime. The ability to do research in this business is a sign of high professionalism.

I am not trying to downplay the complexity.  It just seems that the discussion has gone away from this very important point, that I believe is true and an entity any entity can secure the professionalism.  Admittedly having to do so does fly in the face of the ideal that anyone, even mom and pop, has the ability to secure a Federal contract. 

Postscript - It really doesn't mean much to the discussion other than demostrating what game you want to play in as the discussion did make me wonder.   The Bonneville Power Administration Purchasing Instructions 788 pages, The Postal Service's Supplying Principles and Practices (SP and Ps) 762 pages, I gave up on TVA,  The NFL rulebook, 86 pages, the NBA rule book 76 pages, the PRCA rule book 279 pages.  

[Vern Edwards]

21 hours ago, C Culham said:

On 8/3/2024 at 3:39 PM, Vern Edwards said:

Is this system fair to contractors?

Yes.  While the rules of the game are complicated a contractor, any contractor, can find qualified people to hire or engage as needed.  Name one entity that you do business with that has something like the FAR to tell you every angle of how that business is to conduct the game.  My worst examples, medical care and mortgage companies (buying money).

@C Culham I disagree with you.

Between the time a company typically sees an RFP and the time proposals are due, there is little time to find and book an "expert"  who can try to help them understand the myriad provisions and clauses, the work statement, and the myriad regulations and other documents incorporated by reference and then to prepare a proposal without ready access to the agency for explanations and clarifications, and then to enter into a contract without discussions.

The big companies can do it, because they have the resources and experience, but even they get tripped up. Small companies and companies new to government contracting cannot do it. They must propose in the dark and hope for the best. Luckily for most of them there is little post-award government enforcement of all the junk they include in RFPs.

But thanks for your comments.

[formerfed]

52 minutes ago, Vern Edwards said:

Between the time a company  typically see an RFP and the time proposals are due, there is little time to find and book an "expert"  who can try to help them understand the myriad provisions and clauses, the work statement, and the myriad regulations and other documents incorporated by reference and then to prepare a proposal without ready access to the agency for explanations and clarifications, and then to enter into a contract without discussions.

The big companies can do it, because they have the resources and experience,  but even they get tripped up. Small companies and companies new to government contracting cannot do it. They must propose in the dark and hope for the best. Luckily for most of them there is little post-award government enforcement of all the junk they must include in RFPs.

So true.  I know a couple sources that provide this type of service.  Their cost to companies is usually prohibitive.  The head of one company is frank with companies and often tells them to not bother.  For small dollar contract he says their investment to him isn’t worth it  For medium and large size contracts, he says the companies won’t stand much of a chance against experienced competition.  Fortunately him he’s retired and does the work almost as a hobby.

He adds how frustrating it is when they call him for help on short notice, often a few days before responses are due too.  

[C Culham]

2 hours ago, Vern Edwards said:

But thanks for your comments.

Yes sir.

I do have difficultly aligning your view where there is record that small businesses started in garages became successful large businesses in the Federal sector and successful small businesses thrive in the Federal sector.  Some how they figured out.

[Vern Edwards]

@C Culham I asked if the government contracting system  is fair to contractors. formerfed said no. I agree, but I didn't say that no contractors could figure the system out and make money. One's opinion about "fairness" might be based on several factors and experiences. The following is from a highly respect D.C. law firm.

Quote

COMPANIES SOMETIMES FIND THAT SELLING goods and services to the federal government can be lucrative, especially given the potential volume of business that the government conducts and the fact that the government can be counted on to pay its bills. The general expansion of the federal government and the infusion of federal stimulus funds into the economy mean that there are greater opportunities for companies to do business directly with the government or indirectly with companies receiving federal funds. But those opportunities present risks for companies unfamiliar with the unique aspects of government contracting.

Companies which seek to perform government contracts in good faith may unwittingly find themselves in noncompliance with a host of unique rules.

https://www.crowell.com/a/web/94xQvBMQBxDDdWSHaFq5n7/4TtkJu/government-contracting-terms-risks-sanctions-san-fernando-valley-bar-association-april-2012.pdf

I suggest that you read the NYT interview with Justice Gorsuch.

 

 

 

[joel hoffman]

4 hours ago, Vern Edwards said:

I suggest that you read the NYT interview with Justice Gorsuch.

Thanks, Vern. I don’t have a subscription to The NY Times. Here is an August 4 Fox News Sunday interview with Justice Gorsuch.  He appears to have said similar things.

https://www.foxnews.com/video/6359892907112 

Fox News Sunday August 04, 2024

06:48  CLIP

“Neil Gorsuch: Too many new laws could impair Americans’ freedoms”

“Trump-appointed Supreme Court Justice Neil Gorsuch joins ‘Fox News Sunday’ to discuss the downside of having too many federal laws.“

 

[RJ_Walther]

15 hours ago, Vern Edwards said:

I suggest that you read the NYT interview with Justice Gorsuch.

Gift link to the interview in the NYT for anyone without a subscription: https://www.nytimes.com/2024/08/04/opinion/neil-gorsuch-supreme-court.html?unlocked_article_code=1.Ak4.fvM3.rfbqIIMR864H&smid=url-share 

[Don Mansfield]

4 hours ago, RJ_Walther said:

Gift link to the interview in the NYT for anyone without a subscription: https://www.nytimes.com/2024/08/04/opinion/neil-gorsuch-supreme-court.html?unlocked_article_code=1.Ak4.fvM3.rfbqIIMR864H&smid=url-share 

Thanks!

[formerfed]

On 8/3/2024 at 4:22 PM, Vern Edwards said:

Government contracting is not a simple business, and the FAR System is among the most massive and complex of all government regulations. Learning the business and the regulation is a the work of a professional lifetime. The ability to do research in this business is a sign of high professionalism.

Learning is also a continuous process.  With all the revisions, expansions for new and updated topics, and legal decisions impacting interpretations and understandings, one needs stay on top of it all.  That’s a big task.  I personally know I’m a shadow of my former self when all I did was contract specialist work.  

[Don Mansfield]

I recently started watching YouTube videos of First Amendment auditors. They will typically go to a public place--like a post office--and start filming, which they have a right to do. Like moths to a flame, public employees will begin harassing them and telling them they can't film. If in a post office, the auditors will point out their right to record is stated on the regulations posted on the wall of the building. This is usually not enough to convince the now agitated public employees, so they call the cops. When the cops come, they start telling the auditors that they can't record video because it's upsetting people--some even threaten arrest. The auditors respond by saying that their first amendment rights take precedence, which is correct. If in a post office, the auditors will also add that the cops don't have jurisdiction on Federal property. Ultimately, the auditor will typically demand to speak to the cops' supervisor. The supervisor shows up, explains to their cops and the public employees that the auditors are exercising their Constitutional rights and there's nothing the cops can do. The auditor thanks the supervisor and goes back to recording. But everyone is still pissed at the auditor.

After watching a number of these videos, I realized that Federal contracting is no different. There are a lot of folks at the working level who don't know the rules and operate based on gut instinct. Even when confronted with their own ignorance, they are not always willing to admit fault or change their ways. The cops in the videos are like many contracting officers--they have no clue about the limits of their authority. The supervisor is like the rare person in the contracting office who actually knows the rules.

https://youtube.com/@bayareatransparency1722?si=qAGgXPA_g808gDyR

[Vern Edwards]

4 hours ago, Don Mansfield said:

After watching a number of these videos...

Holy Cats! Watching that made me nervous!  I thought something bad was going to happen!

[formerfed]

20 hours ago, Don Mansfield said:

After watching a number of these videos, I realized that Federal contracting is no different. There are a lot of folks at the working level who don't know the rules and operate based on gut instinct. Even when confronted with their own ignorance, they are not always willing to admit fault or change their ways. The cops in the videos are like many contracting officers--they have no clue about the limits of their authority. The supervisor is like the rare person in the contracting office who actually knows the rules.

What’s more troubling for me is those people in contracting that know rules but not how to appropriately apply them.  They are the ones quick to tell program office personnel why they can’t do something but never help or show how they can get a job done.  They are the tough guys who feel their job is enforce rules but are afraid to take any action.

Years ago, a Cabinet level agency had a contract attorney review proposed awards.  He regularly sent actions back because he didn’t want to sign off as “legally sufficient.”  He was called the “abominable no man” 

[Vern Edwards]

It's not really possible to "know the rules", whatever "know" means. You can know some of them and be familiar with others of them, but not all of them. There are too many.

It's only possible to know how to find, read, interpret, and apply the rules, and that takes a lot of study and practice, which most "professionals" don't do. Most engage in just ad hoc browsing.

[formerfed]

Yes, and it takes a commitment to research, study, and train besides just doing the expected 1102 job production work.  Someone has to view this as their profession with a keen interest to learn and grow.  In my opinion, it requires similar motivation as does a hobby where you are interested and excited to discover things.