In the spirit of procurement reform, efficiency and economy, and to be consistent with our blogs in the prior weeks, the Coalition and its members have undertaken an effort to review the Federal Acquisition Regulation (FAR), to identify opportunities for reform, revision or recission to increase the efficiency and effectiveness of the procurement system, lower administrative and compliance costs, and reduce barriers to entry for commercial firms seeking to enter the federal market. Improvements in the FAR will drive competition and innovation that will deliver best value customer agency mission support on behalf of the American people. After all, the FAR is well over 40 years old now, and a comprehensive review is long overdue.
The Federal Acquisition Streamlining Act of 1994 established a preference to exempt commercial contracting from new laws. Initially, the FAR Council adhered to congressional intent, but over time there was a clear drift toward determinations that exempting commercial contracts from a new law or executive order would not be in the best interests of the government. A good start is to review past determinations and the corresponding rationale for not exempting commercial contracting from each law (in contrast with the recent Defense Department review of the Defense Federal Acquisition Regulation where analyses and explanations for each clause were not provided).
There are FAR clauses on reporting executive compensation, policies on texting while driving, or printing on double-sided paper, that are clear overreach and have no relationship to contract performance and achieving best value for the taxpayer. There are FAR discrepancies that have unintended consequences that can be fixed with a few clarifying words, such as the FAR provision that applies the Buy American Act instead of the Trade Agreements Act to small business set-asides where the Small Business Administration has waived the nonmanufacturer rule, allowing the purchase of Chinese products on small business set-asides. There are discrepancies between the Court of Federal Claims and the Government Accountability Office, some of which have been around for over twenty years, such as the disagreement on the issue of reporting the unavailability of key personnel after submission of offers, that can be settled by the FAR Council so that the protest process works as intended. Rule-makers send mixed messages regarding cybersecurity harmonization, by continuing to issue rules with different definitions of incidents, timelines for reporting, and where to report.
What are the sections, provisions or clauses of the FAR impacting your business and industry that need to be reviewed, reformed, rewritten or deleted, to improve the efficiency and operation of the procurement system? Please send your suggestions for removing regulatory burdens to Greg Waldron at [email protected].
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