Too Big To Be Carried

Maybe I should sell Wifcon-Wheelbarrows for it.

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.

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

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

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

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.

General.Zhukov said:

Preaching

You pique my interest.  How many were LPTA?

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.

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.

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?

Jamaal Valentine said:

Where can the public find the cost-benefit analysis?

I would imagine no where.  

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.

Jamaal Valentine said:

Where can the public find the cost-benefit analysis?

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.

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?

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.

Can the

Jamaal Valentine said:

benefits

Of

formerfed said:

political goals

Even be measured?

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.

The word employee/s appears 1,279 times.

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.

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").

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":

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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.

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?  

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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

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

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.

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…

joel hoffman said:

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

Narrow view?  The prescription for 52.223-18 says "all".  So what about contracts to be performed in foreign countries, military bases, or even reservations on routes that are not under state jusisdication?  It is not necessarily duplication is it?

C Culham said:

Narrow view?  The prescription for 52.223-18 says "all".  So what about contracts to be performed in foreign countries, military bases, or even reservations on routes that are not under state jusisdication?  It is not necessarily duplication is it?

As of Sep 2023: “Text messaging ban: 49 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban text messaging for all drivers”. See, for instance: https://www.ghsa.org/state-laws/issues/distracted driving

I believe that there are contract clauses that require conformance to State, local and installation laws and regulations.

See, for instance, 52.236-7 Permits and Responsibilities applicable to construction contracts. “The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work.”

I’m not going to research it tonight but I’d bet that every installation specifically prohibits texting while driving, either directly or by citing applicability of state driving laws to driving on base.

See also : https://www.fmcsa.dot.gov/newsroom/us-transportation-secretary-ray-lahood-announces-federal-ban-texting-commercial-truck

Ok, so there has been at least one executive order directing all agencies to include language in contracts to ban or encourage contractors to ban texting while driving for performance of contracts. I didn’t read the prescription and background for the clause mentioned in this thread:

But here one by Obama:from 15 years ago in 2009:

“Executive Order 13513 --Federal Leadership on Reducing Text Messaging while Driving

THE WHITE HOUSE

Office of the Press Secretary
___________________________________________________________________________
For Immediate Release                                                        October 1, 2009

EXECUTIVE ORDER
- - - - - - -
FEDERAL LEADERSHIP ON REDUCING TEXT MESSAGING WHILE DRIVING“

https://obamawhitehouse.archives.gov/the-press-office/executive-order-federal-leadership-reducing-text-messaging-while-driving   

EDIT: ok, looks like this is the source for the new FAR coverage to “encourage contractors to implement policues banning texting while driving.

looks like this is more wishywashy than actual state, local and federal laws, regulations and policies…🤠

joel hoffman said:

Ok, so there has been at least one executive order directing all agencies to include language in contracts to ban or encourage contractors to ban texting while driving for performance of contracts. I didn’t read the prescription and background for the clause mentioned in this thread:

But here one by Obama:from 15 years ago in 2009:

“Executive Order 13513 --Federal Leadership on Reducing Text Messaging while Driving

THE WHITE HOUSE

Office of the Press Secretary
___________________________________________________________________________
For Immediate Release                                                        October 1, 2009

EXECUTIVE ORDER
- - - - - - -
FEDERAL LEADERSHIP ON REDUCING TEXT MESSAGING WHILE DRIVING“

https://obamawhitehouse.archives.gov/the-press-office/executive-order-federal-leadership-reducing-text-messaging-while-driving   

EDIT: ok, looks like this is the source for the new FAR coverage to “encourage contractors to implement policues banning texting while driving.

looks like this is more wishywashy than actual state, local and federal laws, regulations and policies…🤠

Elimination of the specific clause  is a 6 to 7 year old argument in which another created bureaucracy that spun off of legislation has attempted to eliminate it. https://discover.dtic.mil/wp-content/uploads/809-Panel-2019/Interim-Report/Recommendation_IR4.pdf

To the specifics of texting heck, it is a hollow FAR mandate as Tik Tok and everything else that is discussed in the Forum.  

To the subject of the original post, it is a pipe dream to think the FAR will not grow.  I agree.   Yet there are days I simply say who cares as it is clear many deviate from the application and administration of the FAR's guiding principles every day.  And then there are days, especially evidenced by my own posts, that I try to help in the understanding and application of the guiding principles with hope.  The latter will continue.  My responses to the texting subject were to an extent an exhibit of frustration about understand and application.   In truth texting is low hanging fruit of both EO or legislative action.  There are much bigger issues that hamstring Federal procurement that are contained in the FAR and will continue to be.

PS - There are wishy washy state laws on texting as well.  My research shows that Montana and Missouri allow texting.   Further one state Nebraska has it as a secondary offense which means it has to be combined with another primary moving offense, it does not stand on its own as a offense. 

.

Why talk about banning texting? That's nothing. FAC 2024-05, Sustainable Procurement, is one of the most complicated acquisition rules I have ever read. The Federal Register version is 39 pages long. (All of the socio-economic rules are complicated. Think of small business subcontracting.)

The average 1102 will need extensive training just to understand the meaning of "sustainable products and services".

FAC 2024-05 affects 19 FAR parts. See the first part of the new 23.103, Policy: "(a) Agencies shall procure sustainable products and services (as defined in 2.101) to the maximum extent practicable."

Here's one of the new definition2:

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Sustainable products and services means products and services that are subject to and meet the following applicable statutory mandates and directives for purchasing:

(1) Statutory purchasing programs.

(i) Products containing recovered material designated by the U.S. Environmental Protection Agency (EPA) under the Comprehensive Procurement Guidelines (42 U.S.C. 6962) (40 CFR part 247) (https://www.epa.gov/smm/ comprehensive-procurement-guidelinecpg-program#products).

(ii) Energy- and water-efficient products that are ENERGY STAR® certified or Federal Energy Management Program (FEMP)-designated products (42 U.S.C. 8259b) (10 CFR part 436, subpart C) (https://www.energy.gov/ eere/femp/search-energy-efficientproducts and https:// www.energystar.gov/products?s=mega).

(iii) Biobased products meeting the content requirement of the U.S. Department of Agriculture under the BioPreferred® program (7 U.S.C. 8102) (7 CFR part 3201) (https:// www.biopreferred.gov).

(iv) Acceptable chemicals, products, and manufacturing processes listed under EPA’s Significant New Alternatives Policy (SNAP) program, which ensures a safe and smooth transition away from substances that contribute to the depletion of stratospheric ozone (42 U.S.C. 7671l) (40 CFR part 82, subpart G) (https:// www.epa.gov/snap).

(2) Required EPA purchasing programs. (i) WaterSense® labeled (water efficient) products and services (https://www.epa.gov/watersense/ watersense-products). (ii) Safer Choice-certified products (products that contain safer chemical ingredients) (https://www.epa.gov/ saferchoice/products). (iii) Products and services that meet EPA Recommendations of Specifications, Standards, and Ecolabels in effect as of October 2023 (https:// www.epa.gov/greenerproducts/ recommendations-specificationsstandards-and-ecolabels-federalpurchasing).

And there are a host of other new definitions.

And here is what the rule says about "maximum extent practicable":

Quote

Maximum extent practicable. If the requiring activity submits a written justification addressing the reasons described in 23.103(a)(1), the contracting officer may consider it not practicable to procure sustainable products or services. A written justification may be for a specific product or service or at the line item or contract level. The contracting officer shall maintain the written justification in the contract file.

Prospective offerors will be able to protest those justifications before the proposal due date. You COs better bone up.

Texting? That's nothing. And there will be more to come. According to the May 6 Wall Street Journal the current administration is accelerating the publication of new rules before the election.

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.

😂

Concerned or distressed about all the new rules? Well, here's something for pros to read:

Dooling, Bridget C.E. and Potter, Rachel Augustine, Rulemaking by Contract (June 22, 2022). 74 Admin. L. Rev. 703 (2022), Available at SSRN: https://ssrn.com/abstract=4146590.

From the abstract:

Quote

Contractors have become a ubiquitous presence in the administrative state. How these private
sector entities intersect with the rulemaking process, however, is not well understood. Unpacking
contractors’ role in rulemaking is important, not least because rulemaking is the executive branch’s
core lawmaking function. It is also important because there is a potential accountability blind
spot when it comes to contractors in rulemaking. The web of law and policy surrounding
contractors is complicated. Protections in place relating to procurement, ethics, recordkeeping, and
disclosure are broadly conceived and not readily applied to the nuances of rulemaking.

Remember when President Obama said, "I have a pen and a phone"? Well, so do contractors.

Vern, I don’t disagree with you. And a specific texting ban is just an example of the insatiable need to add regulations , many of which are already covered by state, local laws, regulations, etc. that many contract administrators don’t enforce anyway. This would be a specific one which probably wouldn’t be enforced either.

As an example, yesterday on the WIFCON Homepage, there was an article citing a GSA OIG Report regarding lack of administration and oversight of the actual performance of building maintenance contracts. Doesn’t surprise me in the least.

https://www.oversight.gov/report/GSA/Building-Maintenance-Contractors-Are-Not-Complying-Their-GSA-Contracts-Due-Poor

“Building Maintenance Contractors Are Not Complying with Their GSA Contracts Due to Poor Performance and Ineffective Oversight”.

The Government is huge and its operations are extensive. Full compliance with all of the rules simply is not feasible.

A colleague told me this morning that the IGs are going to have a field day assessing compliance with sustainable procurement.

BTW, note the councils' use of the word "procurement" instead of "acquisition."