On August 19th, the Federal Acquisition Regulatory Council (FAR Council) released its final plan to analyze the FAR in order to comply with President Obama’s Executive Order 13563. The E.O., issued on June 13, 2011, required that all agencies submit plans and issue rulemaking to improve the efficiency with which they govern.
Obama specifically highlighted the need for the government to analyze and reform the regulatory framework governing contracting in Section 1 of the E.O.:
Over the last 2 years, we have made good progress and have saved taxpayer dollars by cutting waste and increasing the efficiency of Government operations by curbing uncontrolled growth in contract spending, terminating poorly performing information technology projects, deploying state of the art fraud detection tools to crack down on waste, focusing agency leaders on achieving ambitious improvements in high priority areas, and opening Government up to the public to increase accountability and accelerate innovation.
To comply, the FAR Council first developed a preliminary plan for conducting a retrospective analysis of existing rules. Now, after conducing public meetings, soliciting comment from the general public, and going through an internal review process, they have released their final plan.
The final plan emphasizes two main points:
- The FAR Council was already in the process of conducting retrospective analysis on a variety of very important contracting topics.
- The FAR Council is working to further improve and implement a “strong and ongoing” culture of of retrospective analysis.
Regarding the first main point, the FAR Council has conducted reviews of organizational conflicts of interest, small business contracting, use of cost and pricing information, the role of competition in the establishment of blanket purchase agreements and the development and use of contractor past performance information.
The second point is arguably what President Obama is more concerned with. It’s no secret that the government is not a paradigm for a “strong and ongoing” culture of retrospective analysis. From my perspective, the proposal put forth by the FAR Council is pretty weak. They are considering periodic review of the FAR to identify rules that have not been analyzed during recent rulemakings at least once every three years. This process would include public input in the form of comments and public meetings. Here’s my question: If all of this stuff is computerized now, couldn’t you develop a system that would identify which portions of the FAR have not been addressed or are not connected with recent rulemakings to produce a real-time picture of which rules are the most outdated?
This isn’t to imply that the most outdated rule in the FAR is the most in need of change, quite the contrary, some rules may just be the right thing for the industry and requiring of no change whatsoever. But a once-every-three-years periodic review? It’s not enough to keep up with the rapid changes affecting the industry, and it will inevitably lead to further inefficiency and poor rulemaking.
To address the “lookback” aspect of E.O. 13563, the FAR Council has improved the way they handle case management by clarifying roles and responsibilities for case managers and FAR Teams.
Where the FAR Council really got it right is in the priorities they’ve set as guidance for their retrospective analysis. The priorities are:
- reducing burden
- reducing barriers to entry into the federal marketplace (WOSB rule is a great example of this priority in practice)
- simplifying regulatory requirements
- reducing or improving the management of risk
- increasing transparency
- improving communication between government agencies and contractors
- increasing small business participation in federal contracting
- strengthening integrity and good business ethics
- taking better advantage of technology (I wholeheartedly agree)
These priorities are admirable, and frankly very much on the right track of what the government needs to improve its efficiency. The thing is, this is all just a lot of talk. Retrospective analysis? That just won’t fix the inherent inefficiencies that are crippling our government – especially its ability to contract goods and services without waste and fraud. Sure, the government should take better advantage of technology (duh), but anyone who has worked with agencies on a contract knows that they are incredibly risk averse. And as we all know, new technology = risk. The key that unlocks most new technology for consumers and businesses is weighing that risk vs. reward, where the reward clearly and easily trumps the risk.
Moreover, sure – regulations should be simplified. But how are you going to pare down 1900 pages of the FAR in a way that is going to make it possible for the average agency contract administrator to fully comprehend the legal implications and interplay between all the varying rules? You can’t. That’s why the lawyers play their games and everyone else turns to lawyers to help them make sense of it all.
These priorities are well meaning but they won’t get the job done. The problem isn’t that government agencies and contractors are miscommunicating, it’s that government agencies and contractors are speaking different languages – often because of the wide gap in skill sets, capabilities, and education between government officials and their contractor counterparts. The problem is one of both policy and personnel and until the government moves to address this with a competent acquisition workforce development plan.