Federal Acquisitionr Regulatory Reform Plan August 2011

August 19, 2011

Federal Acquisition Regulatory Council

FINAL Plan for Retrospective Analysis of Existing Rules

I. Executive Summary of Preliminary Plan & Compliance with Executive Order 13563

Executive Order 13563 recognizes the importance of maintaining a consistent culture of
retrospective review and analysis throughout the executive branch. Before a rule has been
tested, it is difficult to be absolutely certain of its consequences, including its costs and
benefits. In federal acquisition, rules are designed to promote the timely delivery of the best
value products and services to the taxpayer, while maintaining the public’s trust and fulfilling
public policy objectives. 1 Retrospective review will allow the Federal Acquisition
Regulatory Council (FAR Council) – the body that oversees the development government-
wide procurement regulations codified in the Federal Acquisition Regulation (FAR), found at
48 CFR Part 1 – to regularly consider whether these objectives are being met in the most
efficient and effective manner possible. Such review will also promote elimination of
unjustified costs, burdens, and complexity.

Executive Order 13563 calls not for a single exercise, but for “periodic review of existing
significant regulations,” with close reference to empirical evidence. It explicitly states that
“retrospective analyses, including supporting data, should be released online wherever
possible.” Consistent with the commitment to periodic review and to public participation, the
FAR Council will continue to assess its existing significant regulations in accordance with
the requirements of Executive Order 13563. The FAR Council welcomes public suggestions
about appropriate reforms. If, at any time, members of the public identify possible reforms to
streamline requirements and to reduce existing burdens, the FAR Council will give those
suggestions careful consideration.

The preliminary plan established a process and schedule for identifying certain significant
rules that are obsolete, unnecessary, unjustified, excessively burdensome, or
counterproductive. The preliminary plan identified rules that warrant simplification, repeal,
or modification, or strengthening, complementing, or modernizing rules where necessary or
appropriate. Particular attention was given to whether rules are creating barriers to entry or
driving up the cost or length of the contracting process. The preliminary plan is available at
http://www.whitehouse.gov/21stcenturygov/actions/21st-century-regulatory-system.

1
See Statement of guiding principles for the Federal Acquisition System, FAR 1.102.

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II. Scope of Plan

This plan covers government-wide acquisition rules addressed in the FAR. Individual
agency supplements to the FAR will be addressed, as appropriate, in individual agency plans.

a. Sub-agencies included in this plan

Responsibility for maintaining the FAR is vested in the FAR Council, whose members
consist of: the Administrator for Federal Procurement Policy and representatives of the
Secretary of Defense, the Administrator of the National Aeronautics and Space
Administration (NASA) and the Administrator of General Services.

The FAR Council is supported by two sub-councils that are responsible for preparing
revisions to the FAR: the Defense Acquisition Regulations Council (DARC) and the
Civilian Agency Acquisition Council (CAAC).

The DARC is chaired by a representative of the Department of Defense (DoD). The
DARC membership includes representatives of the military Departments, the Defense
Logistics Agency, and NASA.

The CAAC is chaired by the General Services Administration (GSA) and membership
includes representatives of civilian agencies (other than NASA). Currently, the following
Departments and agencies are represented with a permanent member of the CAAC: the
Departments of Agriculture, Commerce, Energy, Health and Human Services, Homeland
Security, Housing and Urban Development, Interior, Justice, Labor, State,
Transportation, Treasury, and Veterans Affairs; and the Agency for International
Development, the Environmental Protection Agency, the Small Business Administration,
and the Social Security Administration.

b. The types of documents covered under this plan include:

· Existing regulations

· Unfinished proposed rules

· Existing information collections

III. Public Access and Participation

Consistent with Executive Order 13563 and supporting guidance, the FAR Council requested
public comment and conducted outreach on this preliminary plan before finalizing it. The
public provided assistance by identifying additional improvements in existing practices and
in eliminating unjustified barriers. This outreach builds on a number of efforts that the FAR
Council has conducted to engage the public in its rulemaking activities (in addition to
seeking comment on its rules). These efforts have included public meetings, advance notices
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of proposed rulemakings, outreach sessions with interested stakeholders – including
Congress, trade associations, advocacy organizations, public interest groups, and academia –
and tribal consultation. Enhanced public input has been sought on a range of topics over the
last two years, including strengthening the use of competition, decreasing reliance on high
risk contracts, clarifying rules on conflicts of interest, and increasing opportunities for small
business contractors. The FAR Council will continue to explore ways to improve public
engagement in the rulemaking process, including pilot efforts that take advantage of new
techniques and technologies for achieving more robust communication with stakeholders in
the FAR rulemaking process.

IV. Current Agency Efforts Already Underway Independent of E.O. 13563

a. Summary of pre-existing agency efforts (independent of E.O. 13563) already
underway to conduct retrospective analysis of existing rules

The FAR Council periodically undertakes initiatives to re-examine and improve the
effectiveness of its rules. Reviews initiated within the past several years have looked at
organizational conflicts of interest, small business contracting, use of cost and pricing
information, the role of competition in the establishment of blanket purchase agreements
(BPAs), and the development and use of contractor past performance information.
Additional information is set forth in subsection b, below.

b. Specific rules, if any, already under consideration for retrospective analysis

Examples of ongoing or recently completed retrospective analyses are set forth below:

Organizational conflicts of interest: The FAR Council has been carefully re-evaluating
the overall effectiveness of current regulatory coverage on organizational or personal
conflicts of interest that may impair a potential contractor’s ability to meet its obligations
to the taxpayer if awarded a contract. This is an ongoing review – see section V of the
preliminary plan for additional discussion and timelines.

Small business contracting: The FAR Council has worked with a Task Force on Small
Business contracting, created by the President in April 2010, to identify where small
business contracting rules need to be strengthened or clarified. This effort is part of an
initiative to increase opportunities for small business contractors so that government
agencies can take better advantage of the skill and ingenuity of the small business
community to support agencies in carrying out their missions. This is an ongoing
review. One key aspect of this effort will result in guidance authorizing agencies to set
aside more work for small businesses when agencies award contracts to multiple
contractors and then compete orders among contract holders as requirements arise. See
section V of the preliminary plan for additional discussion and timelines.
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Obtaining products and services at fair and reasonable prices: Agencies are responsible
for purchasing supplies and services at fair and reasonable prices. While agencies seek to
rely on competition to obtain good prices and quality, agencies are not always able to
obtain competition. In certain circumstances, agencies need to request data from
contractors to establish the fairness and reasonableness of offered prices. In doing so,
agencies must take appropriate care not to ask for more data than is necessary.
Unfortunately, unclear and overlapping definitions and confusing articulation of the
underlying policy regarding the use of data has left contracting officers confused and
agencies at risk of not asking for the information they need to protect the government
from paying unreasonable prices. After review of agency experiences and public
comment in response to a proposed rule and a public meeting, the FAR Council amended
the FAR to clarify the rules for determining whether and how much data is required, in a
given case, to establish price fairness and reasonableness. 2
Contract closeout: Timely closeout of a contract helps to assure taxpayers that the
contractor fulfilled its requirements and the contracting agency fulfilled its obligations.
By some accounts, it is estimated that 10 percent of federal contracts are over age and
require contract closeout. After careful review, the FAR Council revised FAR language
to provide contracting officers the authority to withhold certain fees to ensure contractors
submit the information needed to close out contracts in an effective, efficient, and timely
manner. For a copy of the proposed rule, go to http://frwebgate3.access.gpo.gov/cgi-
bin/PDFgate.cgi?WAISdocID=fQ0kgD/0/2/0&WAISaction=retrieve.

Unfinished proposed rules and other old cases: The FAR Council has been re-evaluating
proposed actions that have been pending on its docket for more than three years to
identify barriers or obstacles to completion and to take action to either remove the
barriers or drive forward to completion.

V. Elements of Preliminary Plan/Compliance with E.O. 13563

a. How the agency plans to develop a strong, ongoing culture of retrospective analysis

Review in connection with individual rulemakings: As part of the analysis conducted in
connection with the Regulatory Flexibility Act, the FAR Council has routinely invited the
public to comment not only on the impact of proposed FAR amendments, but also
existing regulations in subparts that would be affected by the proposed changes. This
broadened scope gives the public and the regulatory drafters a greater opportunity to
identify regulations that warrant strengthening, modernizing, or repeal. The FAR
Council intends to review the language incorporated into its notices to make sure the
public is aware of this invitation and takes full advantage of the opportunity to bring
matters to the drafters’ attention that can make the rules more effective and efficient.

2
The final rule is available at 75 Fed. Reg. 53135 (August 30, 2010).

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Periodic FAR system-level reviews: In light of Executive Order 13563 and its emphasis
on retrospective analysis, the FAR Council seeks to improve its ability to identify rules
that are not directly connected with recent rulemakings and may be outdated, confusing,
or otherwise in need of amendment or repeal. The FAR Council is considering periodic
public notices, not less than once every three years, which may be accompanied by public
meetings or other forms of outreach depending on the nature of the public feedback.

Improved case management: Late last fall, the FAR Council initiated a comprehensive
review of the FAR system to improve the timeliness and quality of FAR rules. This
review examined the processes used to develop and manage cases, including
considerations for opening new cases. Based on this review, the FAR Council is
updating its standard operating guides and training, and refining its oversight
mechanisms, to clarify the roles and responsibilities of the individuals who serve as case
managers and chairs of the FAR Teams. The “lookback” principles of E.O. 13563 will
be addressed as part of these ongoing case management improvement efforts.

b. Prioritization. Factors and processes the agency will use in setting priorities

Priorities for retrospective analysis will focus around opportunities to make rules more
efficient and effective in helping agencies obtain the best value for the taxpayer, while
maintaining the public’s trust and fulfilling public policy objectives. In considering
initiatives, the FAR Council will look for rules where there may be opportunities to
accomplish one or more of the following objectives:

· reducing burden

· reducing barriers to entry into the federal marketplace

· simplifying regulatory requirements

· reducing or improving the management of risk

· increasing transparency

· improving communication between government agencies and contractors 3

3
In February 2011, OFPP issued guidance to address misconceptions that may be inhibiting government-industry
communications. See http://www.whitehouse.gov/sites/default/files/omb/procurement/memo/Myth-Busting.pdf.
E.O. 13563 provides an opportunity to review current rules addressing communications with vendors to determine
if misconceptions are being driven by ambiguities or other infirmities with current FAR coverage on this subject,
such as that in FAR 15.201 (addressing exchanges with industry before receipt of proposals) and 15.306
(addressing exchanges with offerors after receipt of proposals).

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· increasing small business participation in federal contracting

· strengthening integrity and good business ethics

· taking better advantage of technology

c. Initial list of candidate rules for review over the next two years

The FAR Council has tentatively identified eight priority initiatives for new or continued
retrospective analysis and follow-up action over the next two years. A summary of the
initiatives, the primary FAR parts for review, and desired outcomes are set forth in Table
1. Additional information on each initiative is set forth below. This preliminary list may
be refined and revised based on public input.

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Table 1. Summary of Newly Proposed & Ongoing “Lookback” Initiatives

Initiative Primary FAR Opportunities to be Status Timeline
Parts for Review explored through lookback
1. Re-examine FAR Not addressed in · Improved economy and · New initiative The FAR Council will complete its
Council process for regulation efficiency review of current practices by the end of
applying new · Reduced barriers to the second quarter of FY 2012.
regulatory entering the federal
requirements to marketplace
commercial item · Increased transparency
acquisitions & small · Simplified acquisitions
(simplified) purchases · Increased small business
participation
2. Explore opportunities FAR 32.903 & · Reduced barriers to entry · New initiative The government will complete its
to accelerate payments 32.906 · Increased small business review in the Fall and will either issue a
to small businesses participation rule or a policy memorandum to
reinforce existing accelerated payments
authorities
3. Review rules FAR 15.201 · Improved economy and · New initiative In addition to issuing its February Myth-
governing &15.306 efficiency busting memorandum, OFPP held a
communications with · Reduced barriers to entry session in July/August with industry and
vendors before government personnel to reduce barriers
awarding contracts to entry. By the end of 2011, OFPP
plans to issue another memorandum
discussing rules governing
communications with vendors before
awarding contracts
4. Reduce number of FAR Part 6 · Improved economy and · New initiative If a regulatory change is determined to
competitions that efficiency be beneficial, a rule will be issued in FY
result in only one offer · Reduced barriers to entry 2012.
· Reduced exposure to high
risk

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5. Revisit the process for FAR 42.1503 · Improved economy and · New initiative If a regulatory change is found to be
reviewing past efficiency beneficial, a rule will be issued in FY
performance 2012.
information

6. Work with SBA to FAR Subparts · Reduced barriers to entry · Initial outreach The FAR Council is working closely
modernize rules for 19.5 & 19.7 · Increased small business sessions held with SBA on the issuance of
using contract-set participation regulations. Rules will be finalized in
asides & small FY 2012 after comment is sought from
business the public.
subcontracting plans
7. Restructure rules FAR Subpart 3.11 · Improved integrity and · OCIs: proposed The proposed rule was published on
addressing conflicts of & 9.5 business ethics rule published April 26, 2011 with an extended
interest -organizational on OCIs comment period until July 27, 2011.
conflicts of interest
(OCIs) and personal · PCIs: final rule
conflicts of interest publication
(PCIs)) pending; Federal Anticipate finalizing the rule by
Register notice December 2011.
for additional
outreach
publication
pending
8. Clarify rules FAR 8.405-3 · Improved economy and · Interim rule A rule will be finalized in FY 2012.
addressing the use of efficiency published
competition for · Reduced exposure to high
blanket purchase risk
agreements

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Re-examine process for applying new regulatory requirements to
commercial items & small purchases

Primary parts for review: Issue is not addressed in the FAR

Opportunities to be explored through lookback:

· Increased transparency and openness in government decision-making

· Reduced barriers for contractors seeking to enter the federal marketplace and improved
access to the commercial marketplace

Status of initiative: New initiative

Background

Sections 33, 34, and 35 of the OFPP Act (41 U.S.C. 1905-1907) address the application of new
laws to contracts and subcontracts for the acquisition of commercial items, including
commercially available off-the-shelf (COTS) items (which essentially are commercial products
sold in the marketplace that have not been modified for government use), and contracts and
subcontracts valued below the simplified acquisition threshold (SAT), which is currently
$150,000. These sections of the OFPP Act exempt commercial item and small dollar
acquisitions from the application of new laws unless the new laws (1) provide for criminal or
civil penalties, (2) specifically state that they are applicable to these types of contracts, or (3) are
applicable because the FAR Council (or, in the case of COTS items, the OFPP Administrator)
makes a written determination that it would not be in the best interest of the Federal Government
to exempt contracts from these laws. These laws help to minimize the application of
government-unique requirements that can create barriers to entry and discourage contractors
from doing business with the government.

For certain laws, the FAR Council has exercised its discretion to apply certain new statutory
requirements that would not otherwise have been applicable to these acquisitions by operation of
law. Last year, for example, the FAR Council made a determination that it was not in the best
interest of the government to exempt commercial item and COTS acquisitions from a provision
of the Federal Funding Accountability and Transparency Act that requires contractors to report
executive compensation and first-tier subcontractor awards on contracts expected to be $25,000
or more. The FAR Council based its determination on a finding that the reporting requirements
of the Transparency Act are intended to provide the public with full and easy access to
information on government spending to promote accountability and transparency. The Council
concluded that waiving the applicability of these requirements would exclude a vast number of
contracts, contractors and subcontractors, which would limit the information that is available to
the public and undermine the overarching policy of achieving greater sunshine in government.

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This lookback initiative will review current practices and processes used by the FAR Council to
make determinations. Some members of the public have noted that the current process (which is
not addressed in the FAR) is unclear and recommended that consideration be given to making
the determination process more open, especially given the potential for added burden associated
with each such determination. The Council will consider these and other comments as it reviews
its processes and ways in which they may be improved.

Explore opportunities to accelerate payments to small businesses

Primary parts for review: FAR 32.903 and 32.906


· Improved cash flow for small businesses doing business with the Government, thereby
creating a corresponding improvement in the US economy.
· Increased small business participation in Federal contracting by implementing favorable
contract payment terms.
· Greater consistency across the government with respect to payments to small businesses.
· Faster payments to small businesses allows them to meet their obligations on-time, and
participate in other ventures.


Background

Pursuant to the Prompt Payment Act, agencies are generally required to pay contractors within
30 days after receiving a proper invoice from the contractor. Current FAR coverage, consistent
with OMB’s Financial Management Regulations, requires agencies to follow prudent cash
management practices which generally call for agencies to pay contractors as close to the
payment due date as possible. However, the Financial Management regulations permit agency
payment offices to make accelerated payments to small businesses. Small businesses have been
especially hard hit by the economic recession; accelerating payments is a way to improve cash
flow for small businesses and improve the financial health of these firms. DoD recently issued a
rule to revise its payment policies to facilitate faster payment of invoices to all small businesses
as quickly as possible after invoices and all proper documentation (including documentation of
acceptance) have been received.

This lookback initiative will consider possible regulatory changes to support accelerated
payment to small businesses. The FAR Council will work with financial management officials
to evaluate systems challenges and costs associated with accelerating payments. The impact of
modifications to the DoD payment systems is being addressed by the adoption of a phased-in
approach. In evaluating the merits of making this policy government-wide, the FAR Council
will draw upon lessons learned from the DoD implementation. There is a statutory goal of
awarding 23 percent of federal procurement dollar to small businesses. According to 2010 Small
Business Economy Report to the President, in fiscal year 2009, small businesses received 21.89
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percent of federal dollars, compared with 21.50 percent in FY 2008. Small businesses were
awarded $96.8 billion in federal prime contracts in FY 2009, an increase of almost $4 billion
from FY 2008.For a copy of this report, see http://www.sba.gov/sites/default/ files/sb_econ
2010.pdf . Accelerating payments improves cash flow, making it easier for small businesses to
perform and compete for new work, which, in turn, will allow them to hire more employees and
stimulate the economy.

Review rules governing communications with vendors before awarding contracts

Primary parts for review: FAR 15.201 & 15.306


· Reduced barriers to entry

· Improved economy and efficiency in contracting


Background

Access to current market information is critical for agency program managers as they define
requirements and for contracting officers as they develop acquisition strategies, seek
opportunities for small businesses, and negotiate contract terms. Our industry partners are often
the best source of this information, so productive interactions between federal agencies and our
industry partners should be encouraged to ensure that the government clearly understands the
marketplace and can award a contract or order for an effective solution at a reasonable price.
Early, frequent, and constructive engagement with industry is especially important for complex,
high-risk procurements. The FAR authorizes a broad range of opportunities for vendor
communication, but agencies often do not take full advantage of these existing flexibilities.
Some agency officials may be reluctant to engage in these exchanges out of fear of protests or
fear of binding the agency in an unauthorized manner. This winter, OFPP kicked off a “myth-
busting” campaign to address misconceptions and improve communication with industry during
the acquisition process. 4

This lookback initiative will review regulatory requirements governing exchanges with industry
before contract award -- both before and after receipt of proposals -- to determine if
misunderstanding or unclear understanding of FAR authorities is contributing to reluctance to
communicate with industry and opportunities to clarify or strengthen current FAR coverage.

4
See “Myth-Busting”: Addressing Misconceptions to Improve Communication with industry during the Acquisition
Process (February 2, 2011), supra note 3.

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Reduce number of competitions that result in only one offer

Primary parts for review: FAR Part 6


· Improved economy and efficiency by increasing the options available to agencies to meet
taxpayer needs.


· Reduced exposure to high risk


Background

The President’s Memorandum on Government Contracting, issued in March 2009, directed
agencies to reduce their use of high risk contracting, including the use of contracts awarded
without the benefit of competition that can lead to cost overruns and wasteful spending of
taxpayer dollars. OMB’s July 2009 implementing guidance called on agencies to reduce not
only noncompetitive awards, but also awards made from solicitations where only one offer was
received. Competitions that yield only one offer in response to a solicitation deprive agencies of
the ability to consider alternative solutions in a reasoned and structured manner. In the fall of
2009, OFPP issued guidelines to help Chief Acquisition Officers and Senior Procurement
Executives evaluate the effectiveness of their agency’s competition practices and identify
opportunities to increase interest and participation in their competitions, but the FAR does not
specifically speak to steps agencies should take where only one offer is received. According to
GAO’s 2010 report, from fiscal years 2005 to 2009, reported obligations for noncompetitive
contracts decreased from about 36 to 31 percent of total obligations, while obligations under
contracts competed with only one offer received were steady, at about 13 percent of the total in
each year. The GAO recommended that OFPP consider whether FAR amendments might be
beneficial. 5

This look back initiative will consider whether tailored regulatory changes might assist agencies
in their efforts to increase contractor interest in competitions that have received only one offer.

5
See Opportunities Exist to Increase Competition and Assess Reasons When Only One Offer is Received (GAO-10-
833), see http://www.gao.gov/new.items/d10833.pdf.

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Revisit the process for reviewing past performance information

Primary parts for review: FAR 42.1503


· Improved economy and efficiency

· Reduced exposure to risk by eliminating awards to non-performing or poor performing
contractors


Background

On an annual basis, the Government awards contractors over $500 billion dollars of contracts for
goods and services. The regular evaluation of contractor performance and the use of these
evaluations in decisions for future awards motivate contractors to perform well and help ensure
that agencies avoid doing business with firms that do not perform well. Agencies are now
required to submit electronic records of contractor performance into a single, web-based
government-wide repository, known as the Past Performance Information Retrieval System
(PPIRS). PPIRS is broadening agency access to contractor assessments so that contracting
officers can have greater insight into how well our contractors are performing for the taxpayer.

For many years, the FAR has required that contractors be given a minimum of 30 days to submit
comments, rebutting statements, or additional information, if they believe the agency’s
assessment of its performance is incomplete or inaccurate. The FAR has also required agencies
to provide for review of agency evaluations at a level above the contracting officer to consider
disagreements between the parties regarding the evaluation. Some have raised concern that the
appeal process increases burden on contracting officials without associated benefit. Others
contend that the appeal process helps to ensure that evaluations are merit based.

This lookback initiative will consider the merits of modifying FAR requirements governing the
appeal process and evaluate whether this change would improve or weaken the effectiveness of
past performance policies and associated principles of impartiality and accountability.

Work with SBA to modernize rules for using contract set-asides
& small business subcontracting plans

Primary parts for review: FAR Subparts 19.5 & 19.7



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· Increased small business participation

Status of initiative: Extensive outreach underway to obtain public input

Background

Small businesses are leaders in innovation and drivers of the economy. They also represent a
critical source of cost-effective support and technical expertise for our federal agencies. See
SBA’s statistics on small businesses at http://www.sba.gov/advocacy/7495/8420. Over 30 years
ago, Congress set a goal of having a certain portion of all federal contracting dollars go to small
businesses and established sub-goals for small businesses owned by women, socially and
economically disadvantaged individuals, service-disabled veterans of the Armed Forces, and for
small businesses in Historically Underutilized Business Zones. The current government-wide
goal for small businesses’ share of contracting dollars is 23%. Every year since 2006, the
Federal government has missed the 23% small business goal and all but one of the sub-goals. In
April 2010, the President established a Task Force to help identify where small business
contracting rules need to be strengthened or clarified. Members of the FAR Council participated
in this effort. The Task Force issued its recommendations in September 2010, 6 the same time
that Congress passed the Small Business Jobs Act. The Task Force and Congress focused on
many of the same areas. Of particular note, both efforts call for:

· Clarification on the use of set-asides. Set-asides – reserving contracts for a small business if
there are two or more small businesses capable of performing the work at fair and reasonable
prices – accounted for approximately half of all government contract awards to small
businesses in FY 2009. However, current rules do not speak to how orders are to be placed
under multiple award “task and delivery order” contracts, where large contracts are awarded
to a number of companies, which then compete for specific orders after the contract has been
awarded. These contracts represent a significant percentage of federal contracting. As a
result, small businesses are not getting the benefit of set-asides in this significant segment of
the Federal contracting marketplace. The Task Force and the Jobs Act call for the
development of rules to close this gap.

· Improved rules on subcontracting. Subcontracting is an important avenue for small
businesses to gain entry to the federal marketplace when they lack the capacity to compete at
the prime contractor level and can also serve as a stepping stone to receiving work as a prime
contractor. Subcontracting plans, where large business prime contractors explain how they
will tap the talents of small businesses to help them in performing the contract, are the key
tool agencies have to facilitate opportunities for small businesses as subcontractors.
Concerns have been raised regarding the strength of a number of different aspects of
subcontracting plan policy – including the quality of the information in the plan, the amount
of emphasis placed on the plan in evaluating large business bidders, and the quality of

6
For a copy of the Task Force’s recommendations, go to http://www.whitehouse.gov/blog/2010/09/15/
new-plans-underway-increase-contracts-small-business.

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contracting officials’ evaluation of progress against the plan. Both the Task Force and the
Jobs Act call for rules to be appropriately strengthened.

This lookback initiative will evaluate the best ways to strengthen regulations associated with
these important small business contracting authorities. SBA conducted a nationwide outreach
tour to obtain public input on these and other related small business contracting issues. 7 For
information about the nationwide outreach Jobs Act tour, see SBA website at
http://www.sba.gov/jobsacttour. The FAR Council will work closely with SBA to make
appropriate revisions to the FAR.

Restructure rules addressing conflicts of interest

Primary FAR Parts for review: Subpart 9.5

Opportunities being explored through lookback:

· Regulations that are more effective in protecting the government’s interests and public
confidence in the integrity of the federal acquisition process.

Status of initiative:

Proposed rule published addressing organizational conflicts of interest (04/26/2011); final rule
issued addressing personal conflicts of interest (PCIs) for acquisition activities closely associated
with inherently governmental functions (pending); notice issued for public input on potential
additional areas for coverage on PCIs (pending).

Background

Maintaining public trust is a key tenet of a healthy federal contracting system. The integrity of
the federal acquisition process is protected, in part, by rules that seek to mitigate or avoid
conflicts of interest. The FAR Council is working to strengthen regulatory support for the
identification and handling of both organizational conflicts of interest and personal conflicts of
interest.

Organizational conflicts of interest

Organizational conflicts of interest (OCIs) may occur when a contractor, because of other
activities or relationships with other contractors, is unable or potentially unable to render
impartial assistance or advice to the Government, has or may have impaired objectivity in
performing the contract work, or has an unfair competitive advantage. Several recent trends in
government contracting have raised concern about the increased potential for these types of
conflicts to arise. These trends include increased consolidation within industries that perform
7
For additional information on the issues addressed as part of this outreach effort, go to
http://www.sba.gov/sites/default/files/files/Condensed%20Tour%20GCBD%20PN%20FINAL%2003232011.pdf

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work for the government, increased reliance of the government on contractors who provide
services that entail the use of judgment, and the broader use of “umbrella” contracts that allow
award of a large amount of work to a relatively small pool of contractors.

Because of these trends, the FAR Council has been carefully re-evaluating the overall
effectiveness of current regulatory coverage on OCIs. FAR coverage on OCIs has remained
largely unchanged since the initial publication of the FAR in 1984. The FAR Council’s review
has included a comprehensive lookback, including: (i) an extensive review of the caselaw that
has shaped current FAR coverage, which may be found at FAR Subpart 9.5, (ii) findings made in
2007 by the Acquisition Advisory Panel, which was established by section 1423 of the Services
Acquisition Reform Act (P.L. 108-136) to make recommendations for improving the efficiency
and effectiveness of the acquisition process, (iii) public comments offered in response to an
advance notice of proposed rulemaking, and (iv) comments in response to a proposed rule issued
by the Department of Defense for its Defense Federal Acquisition Regulation supplement
(DFARS) to implement provisions of the Weapon Systems Acquisition Reform Act addressing
conflicts of interest.

Based on their review, the FAR Council concluded that the substantive principles of the current
FAR coverage remain sound but must be updated to recognize the present-day challenges faced
by acquisition officials in identifying and addressing OCIs in the procurement of products and
services to satisfy agency requirements. The results of the FAR Council’s review were reflected
in the recent publication of a proposed rule that lays out a substantial restructuring of current
coverage that is designed to be clearer, easier to implement, and better suited to protecting the
interests of the government. 8 Details of the proposed restructuring are provided in the rule’s
preamble. In addition to seeking comment on the proposed restructuring, the FAR Council is
seeking comment on whether the proposed restructuring is preferable to an alternative approach
reflected in a recent DoD proposed rule that also updates coverage on OCIs for Defense
procurements to provide greater clarity but makes more modest revisions that more closely track
to the current regulatory structure in the FAR. The FAR Council will be carefully considering
public comment as it evaluates the benefits and drawbacks of each approach, whether features of
each should be combined in the final rule, and whether there are other options that have not yet
been considered.

Personal conflicts of interest

Personal conflicts of interest (PCIs) may arise when an individual has a financial interest,
personal activity, or relationship that could impair the individual’s ability to act impartially and
in the best interest of the Government. Federal personnel rules published by OPM do provide
extensive coverage of personal conflicts of interest with respect to federal employees. Although
many contractor employees work side-by-side with federal employees in agencies and

8
The proposed rule is published at 76 Fed. Reg. 23236 (April 26, 2011). It is available here:
http://www.federalregister.gov/articles/2011/04/26/2011-9415/federal-acquisition-regulation-organizational-
conflicts-of-interest. Publication information about the proposed DFARS rule is provided in the preamble of the
proposed FAR rule.

16

Departments performing substantially the same tasks affecting billions in federal spending, few
ethics policies are in place to prevent personal conflicts of interest for contractor employees.
Given concerns with protecting the integrity of government operations and consistent with
statutory requirements in section 841 of the FY 2009 NDAA, the FAR Council has worked with
agencies to assess the adequacy of safeguards to prevent personal conflicts of interest for
contractor employees when performing acquisition activities closely associated with inherently
governmental functions. Based on this assessment, the FAR Council published a proposed rule
on November 13, 2009. 9 Publication of a final rule incorporating public comments is currently
pending and scheduled for publication in the August/September 2011 timeframe. Additionally,
the FAR Council is currently engaged in an assessment of whether additional coverage of PCIs
in areas other than acquisition activities closely associated with inherently governmental
functions is necessary. As part of this review, the FAR Council will publish a Federal Register
notice seeking feedback on this question. This notice will be published, in August/September,
concurrently with the final PCI FAR rule.

Clarify rules addressing the use of competition for blanket purchase agreements

Primary parts for review: FAR 8.405-3


· Better pricing and increased contract savings

· Reduced exposure to contract risk

Status of initiative:

Interim FAR rule issued on March 16, 2011. 10 76 Fed. Reg. 14548 (March 16, 2011)

Background

Blanket purchase agreements (BPAs) are agreements with pre-negotiated terms and conditions
that agencies establish with contractors so they can negotiate better deals for their recurring
needs. They are an especially popular tool under GSA’s Federal Supply Schedules Program,
where billions of dollars are spent to acquire common commercial products and services. To
capture the benefits of BPAs, an agency must actively negotiate with vendors for better pricing,
deeper discounts, and more favorable delivery terms. However, reports in recent years,
including one by GAO in 2008, found that agencies were failing to take advantage of
opportunities for competition in either establishing BPAs or placing orders under them – sure
ways to get better deals. This lookback initiative considers ways to strengthen the use of
competition in the establishment of BPAs and the placement of orders under them.

9
The proposed rule was published at 75 Fed. Reg. 58584 (November 13, 2009).
10
The interim rule is published at 76 Fed. Reg. 14548 (March 16, 2011).

17

d. Structure and Staffing: official responsible for retrospective review.

The Federal Acquisition Regulatory Council (FAR Council), chaired by the Office of Federal
Procurement Policy Administrator, includes the Department of Defense Director of Defense Procurement
and Acquisition Policy, the National Aeronautics and Space Administration (NASA) Associate
Administrator for Procurement, and the General Service Administration Chief Acquisition Officer. The
FAR Council oversees development and maintenance of the FAR. The following individuals from these
organizations were delegated responsibility for this plan.

Name/Position Title:
Mathew Blum
Associate Administrator
Office of Federal Procurement Policy
Office of Management and Budget

Linda Neilson
Director
Defense Acquisition Regulations Council
Department of Defense

Laura Auletta
Acting Director
Office of Governmentwide Acquisition Policy
General Services Administration

Leigh Pomponio
NASA FAR Principal
National Aeronautics and Space Administration

e. How the agency plans to ensure that agency’s retrospective team and process maintains
sufficient independence from the offices responsible for writing and implementing
regulations

The FAR Council is considering a variety of options to ensure a fresh look and independent
review occurs through its retrospective analysis. A number of options may be used and could
include approaches such as: (1) collaboration with senior agency officials with expertise in
acquisition and related fields such as finance and information technology, who do not have direct
responsibility for FAR rulemaking, (2) use of ad hoc government advisors with specialized
subject matter expertise, and (3) public meetings.

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f. Agency actions, if any, to strengthen internal review expertise, such as training staff,
regrouping staff, hiring new staff, or other methods

The FAR improvement process will include new training requirements for all analysts. This
will include training on Executive Order 13563 and related guidance, in addition to training
on the requirements of the Paperwork Reduction Act and Regulatory Flexibility Act.

g. How the agency will plan for retrospective analysis over the next two years, and beyond

As identified in subsection c, above, the FAR Council has identified eight initiatives for
retrospective analysis over the next two years. Refinements may be made to this list of
priorities based on input from the public and agencies. Periodic public feedback will be
obtained (as described in subsection i, below) to identify additional areas for review, taking
into account the factors identified in subsection b.

h. How the agency will decide what to do with analysis

Analyses will be reviewed by the FAR Council and, as appropriate, other agency
stakeholders, which could include members of the Executive Committee of the Chief
Acquisition Officer’s Council (CAOC). As appropriate, revisions will be made to existing
rules and new rulemakings will be initiated.

i. The agency’s plans for revising rules - how the agency will periodically revisit rules
(e.g., through sunset provisions, during regular intervals)

For a number of years, as part of the analysis conducted in connection with the Regulatory
Flexibility Act, the FAR Council has routinely invited the public to comment not only on the
impact of proposed FAR amendments, but also existing regulations in subparts that would be
affected by the proposed changes. This broadened scope gives the public and the regulatory
drafters a greater opportunity to identify regulations that warrant strengthening, modernizing,
or repeal. The FAR Council intends to review the language incorporated into its notices to
make sure the public is aware of this invitation and takes full advantage of the opportunity to
bring matters to the drafters’ attention that can make the rules more effective and efficient.

In addition, the FAR Council is considering periodic public notices, not less than once every
three years, which may be accompanied by public meetings or other forms of outreach
depending on the nature of the public feedback.

j. Description of how the agency will coordinate with other federal agencies that have
jurisdiction or similar interests

The structure of the FAR teams provides for interagency and cross functional representation
to ensure consideration of similar interests. The FAR Council is seeking to strengthen and

19

expand agency participation on the FAR Teams as part of its regulatory improvement
process. To enhance communication and collaboration on its retrospective review, in
particular, the FAR Council intends to solicit agency views on its preliminary plan through
agency Chief Acquisition Officers and Senior Procurement Executives at the same time it
seeks public input on its preliminary plan.

k. How the agency plans to use peer review in conducting analyses

Peer review is effectively included in the FAR process. The FAR teams include interagency,
cross functional representation, which allows interested stakeholder agencies to exchange
views and discuss individual agency efforts to implement federal acquisition policies and
practices. Further interagency vetting occurs through review of FAR Teams’ proposals by
the DARC and CAAC.

VI. Components of Retrospective Cost-Benefit Analysis

a. Metrics the agency will use to evaluate regulations after they have been implemented

The FAR Council will seek input from the public, including vendors, on the cost impact of
proposed regulatory changes and on appropriate ways to evaluate the outcome of actions
taken as a result of its retrospective review initiatives.

b. Steps the agency has taken to ensure that it has the data available with which to
conduct a robust retrospective analysis

The acquisition community’s Integrated Acquisition Environment provides a number of
electronic tools and databases that capture data to assist in analysis. For instance, the Federal
Procurement Data System provides data on contracts and orders, including modifications
with over 100 data elements covering award amounts, type of product or service, type of
contractor, applicability of certain rules, etc. Other tools include the Central Contractor
Registration which provides detailed information on contractors and potential contractors.

VII. Publishing the Agency’s Plan Online

The FAR Council intends to publish its retrospective review plan on OMB’s Open
Government website (www.agency.gov/open) and on regulations.gov. The point of contact
(who will also be responsible for posting updates to the plan) is Julia Wise,
jwise@omb.eop.gov, (202) 395-7561.

VIII. Summary of Comments on the Preliminary plan

As required by this EO, the FAR Council published the preliminary plan in the Federal
Register at 76 FR 32133 on June 3, 2011 – see http://www.gpo.gov/fdsys/pkg/FR-2011-06-
03/html/2011-13835.htm. The period for public comment closed on July 5, 2011. Public
20

comments were received from the Council of Defense and Space Industry Association
(CODSIA). Several comments were also received from two government agencies -DHS,
and GSA. The comments and recommendation are discussed below.

Public Comments

CODSIA expressed support for the look-back reviews proposed in the plan, but stated that
the FAR Council should also review the acquisition regulatory process. In particular, they
raised a number of concerns that current regulatory practices are eroding the public’s ability
to provide input into the rulemaking process, including the issuance of “interim rules” that
become effective before having the benefit of public comment. They also raised concerns
that current analyses of the costs and benefits of rules are inadequate.

The FAR Council strongly agrees that early and meaningful public participation is critical to
effective and quality rulemaking and is committed to identifying and pursuing new
approaches to public engagement. In this regard, the FAR Council intends to identify and
pursue pilot efforts to test techniques and technologies for achieving more robust
communication with the public, including input on burden and costs.

Agency Comments
Agencies also offered a number of ideas on ways to take greater advantage of the look-back
process to improve the FAR rulemaking process. Recommendations included:

· Keeping the FAR current by developing a process to regularly remove obsolete, revoked,
or repealed Executive Orders (EO), OMB Circulars, and laws;

· Reducing the volume of regulatory coverage by removing language that is instructional
or internal guidance that does not have an impact on contractors; and

· Clarifying the flow down requirements for subcontractors to help reduce overhead costs
and risks for small and large businesses who may find themselves struggling to
understand current prescriptions in order to ensure that they are operating in a manner
that is compliant with the FAR.

The FAR Council welcomes ideas for simplifying, clarifying, and streamlining the FAR and
plans to initiate processes to evaluate the initiatives described above. Should any regulatory
coverage be identified for removal as unnecessary or internal guidance, the FAR Council
would issue a proposed rule so that the public would have an opportunity to comment before
any language was eliminated.

One agency commenter also offered a suggestion for reviewing the burden on contracting
officers by evaluating the number of FAR mandates imposed on contracting officers and
conducting a process to determine if each mandate remains appropriate. The FAR Council

21

appreciates the need to consider how burdens on agency contracting officials can be reduced.
While such burden reduction on agency officials is not the immediate focus of the look-back
plan, the FAR Council intends to evaluate the need for this review outside of this process.

22

Federal Acquisitionr Regulatory Reform Plan August 2011

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