100 page FAR

What is the expected benefit and specific outcomes? Making it easier to spend more money quicker?

That’ll likely go over like a lead balloon unless the proponents can also establish that it will reduce annual expenditures…

I honestly don’t know the intent of this. But I can speculate reducing the 2300 pages of FAR, 1300 pages of DFARS, and hundreds more of policies and procedures will greatly simplify and speed up the acquisition process if it’s done properly.  There’s a lot of talk right now that the Pentagon is rapidly falling behind other nations because our acquisition process for defense is severely broken.  If someone can reduce existing laws, regulations, and policies down even to a few hundred pages of guidance and train and empower the best and brightest to implement, that’s a huge step in the right direction.

Even if this exercise just brings attention to how convoluted the present system is, that’s a plus.

formerfed said:

…a few hundred pages of guidance and train and empower the best and brightest to implement…

I don’t think this is feasible on the scale necessary to successfully complete all required Federal acquisitions.

And my primary question is still…will this reduce overall acquisition and lifecycle costs ? The spending deficits are unsustainable.

@joel hoffman  you are correct.  This isn’t feasible to complete all acquisitions.  From what I gathered, this model just covers off-the-shelf type commercial stuff.  100 pages is not reasonable, but nor should 2300 be.   The benefit I see is the model might get people thinking what should the FAR  ideally look like.

Some promising things are happening, especially to get weapons systems developed faster and cheaper.  The proposed Forge Act is an example  Forge Act summary here.   But for it to optimally work, the FAR process needs revised too.  All this should reduce acquisition lifecycle costs and times.

@formerfed  I had a chance to look at the proposed FORGED Act last week. IMO, many sections appear incompetent (e.g. 303, 305), and its stated overall goals to "streamline" come by way of dropping or relaxing the requirements aimed at cost controls, risk controls and reduction of wastefulness.

Quick thoughts for discussion and refining.

Create three civilians FARs:

   1. Simplified acquisitions

   2. Contracting by negotiation 

   3. Other acquisitions 

   Eliminate and prohibit agency supplements.

Create three defense FARs:

   1. Simplified acquisitions

   2. Contracting by negotiation 

   3. Other acquisitions 

   Eliminate and prohibit agency supplements.

Finally, “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.” Here, a cost-benefit analysis must be made publicly available for review and comment for any action under the Administrative Procedures Act.

*I don’t care what they get called — purchasing, contracting, and acquisitions would work as three labels too

I did a quick read of the 88 pages, followed the the discussion and in doing both I wondered if in a utopia of Federal government acquisition might apply these questions....  

Why wouldn't a rewrite that separates the FAR into 3 distinct sections emphasize commercial item procurements?  In a simple view simplified acquisitions be renamed to commercial acquisitions.  

Why wouldn't it be the perfect opportunity to change or abandon thresholds all together?  I understand most are statutory but some are truly antiquated. 

Why wouldn't it be the perfect opportunity to finally do something about prevailing wages?  Afterall one would think the catch all - comply with state and local law - would set a bar for competitive wages  considering how states and even local justisdictions have changed the wage landscape since Davis Bacon and Service Contract Act became statutes.

Why not when abandoning agency supplements, abandon agency policy too?   Beyond the ones that deal in the top secret world is there really any difference as to why how something is acquired for Army should be different than it is for USDA-NRCS?

Why not a one FAR fits all?  I understand to an extent the separation of civilian and defense but defense is the 800 pound gorilla.

@C Culham Excellent thoughts

C Culham said:

In a simple view simplified acquisitions be renamed to commercial acquisitions.

Not all simplified acquisitions are “commercial acquisitions”.

C Culham said:

Why wouldn't it be the perfect opportunity to finally do something about prevailing wages?  Afterall one would think the catch all - comply with state and local law - would set a bar for competitive wages  considering how states and even local justisdictions have changed the wage landscape since Davis Bacon and Service Contract Act became statutes.

Good luck with the Davis Bacon arena. In fact, the current $2500 threshold since (1933 I think) is lower than the original threshold (1928 I think). Going from memory; didnt refresh my search from a few months ago. And that ridiculous threshold isn’t based upon the labor portion  of a construction acquisition. It includes the total cost, including equipment and materials and markups for indirect costs and profit…. There could be only a few labor hours involved…🤪

C Culham said:

Why not when abandoning agency supplements, abandon agency policy too?

I don’t think that either abandonment would be practical. There are many areas where agency specific procedures and policies are unique or aren’t covered by the generic FAR. Some Examples off the top of my head are DOT/FHWA and Design-Build Construction.

There is virtually no coverage in FAR of the vastly different roles and responsibilities of the parties in Design-Build vs. Design-Bid-Build. My agency attorney at the time (1996) that D-B was first addressed in Part 36 was the Part 36 DAR Chairperson. She said that the FAR coverage for D-B was limited to specific issues at the time. Plus the Committee members didnt really have much if any understanding of the differences between government furnished design roles, responsibilities and liabilities and when the Contractor is responsible for the design. Many other distinctions too.

joel hoffman said:

Not all simplified acquisitions are “commercial acquisitions”.

So why?   Can you give me a an example of a acquisition that is below the current SAT or even to the current FAR 13.5 threshold that is not commercial?  I can't imagine one.

joel hoffman said:

Good luck

I know but all the same as I stated both are antiquated and states and some city's are rolling their own anyways.

joel hoffman said:

Some Examples off the top of my head are DOT/FHWA and Design-Build Construction.

Are not quality design-builds being practiced every day by other than the Federal government?    And I really wonder, based on a significant amount of experience with FWHA if the 70 or so TAR clause/provisions really add substance, one way or the other, to what is already contained in the FAR? 

 I truly do understand the arguement, remember my 40 years of experience with USACE, USDA, SBA, and HHS have made it so.   My experience (and my age) also suggests strongly to me that the world has changed in the 50 years that have transpired since the OFPP Act that started the ball rolling to create the FAR in 1984.   

Time to push the refresh button and doing so should leave nothing off the table for consideration.

Many minor construction projects are examples of other than commercial acquisitions.

The risk allocations and legal ramifications for private, commercial, state and local construction vary widely using industry or commercial terms and conditions- which may or may not be biased toward the specific industry. The few FAR clauses specifically applicable to construction establish traditional and consistent risk allocations, and terms.

Regarding Design-build construction contracting, great, good average, mediocre and poor design-build practices and experiences abound both within and outside the government sectors.

There is considerable amount of litigation in non-government D-B contracting and post contract completion situations.

There are numerous organizations with their own model design-build contract formats and terms and conditions, which are often written to protect the interests of the organization and are sometimes conflicting or inconsistent with each other.

I was a D-B practitioner for over twenty five years with the USACE, for a couple years before that in industry and even as far back with the Air Force in 1971-1972. I taught D-B for 20 years for USACE

I was a member of the Design-Build Institute of America, until recently after full retirement, including the DBIA designation as Design-Build Professional® (DBIA®).

I taught some classes for DBIA and made presentations at National DBIA conferences. I was on a DBIA Federal Sector committee, which advocates best practices for government D-B programs and projects.

I was a member of the Program Management Team for the Military Construction (MILCON) Transformation Program for over ten years. We developed procedures and Model RFPs for performance-based and stream-lined acquisition, design-standards and execution for D-B projects for the ~ $50 billion Army Transformation Program.

joel hoffman said:

Many minor construction projects are examples of other than commercial acquisitions.

 Well Joel we have debated this before.  In the past and I dare say to today there is still debate.   I simply go back and look at the long ago Anglea Styles memo of July 2003 and then fast forward to a look at SAM.gov today which suggests the reset (and I guess I will add the clarity button) needs to be pushed.

I hope the efforts of today embrace acquisition policy for reform.   Reforms like I have mentioned that are direct to your question that I believe would bring savings to acquisiton and lifecycle costs.

C Culham said:

Are not quality design-builds being practiced every day by other than the Federal government?

My comments above concerning D-B were in response,  to explain my opinion that the FAR is seriously lacking in guidance on how to effectively execute successful D-B programs. Particularly in defining the differences between the contractual roles, responsibilities and legal distinctions of the contract parties for traditional D-B-B and D-B acquisition approaches. The FAR and most agency written policies,  procedures and practices were and still are written for traditional design-bid-build construction.

@joel hoffman Where does one find the best guidance on how to effectively execute successful D-B programs today?  Applicable to my workload.  Thanks.

From the industry side consider the Design Build Institute of America

Voyager said:

@joel hoffman Where does one find the best guidance on how to effectively execute successful D-B programs today?  Applicable to my workload.  Thanks.

C Culham said:

From the industry side consider the Design Build Institute of America

I agree in principle with Carl. But the DBIA has owner members too. It’s pretty balanced. However, their contract format isn’t totally formatted for Federal Government contracts with the DB clauses,  if you are a beginner.

If you would like to hire a D-B coach/consultant for any phase of the acquisition from developing design criteria, developing the RFP, source selection and how to manage/execute the contract, I can direct you to an excellent person, who I’ve known for 25 years or so. He was the chief of Contracting for the Bureau of Federal Prisons successfully using DB for new Prisons. He teaches several different DB classes and has advised government owner teams for years. He is a Fellow with the DBIA. 

I don’t know if the USACE is still conducting the lifecycle D-B Course Classes. They allow outside agencies to attend. They have condensed it  and were conducting it over the web a couple of years ago. Most of my fellow practitioners and teaching partners have retired.

I ran across this DBIA webpage on Federal Sector DB :

https://dbia.org/federal/

Craig Unger is the guy that I recommended to you. Unger Security Solutions. Search “Craig Unger DBIA” and you will be able see his background, contact information and several websites.

He was once the President of the DBIA. You can mention me as a reference if you write or call him  to discuss any recommended approaches or possible assistance available.

What are other governments (state, local, foreign, multi-national) doing?  is anyone doing it better than us in a way that we can learn from?  

The DoD is probably unique in the world.  But the rest of it isn't.  Governments everywhere do basically the same things and so have the same requirements.

As an analogy - Spain and France (among others) are vastly superior to the US when it comes to building mass transit - they do it cheaper and faster and better.  We learn a lot from comparing the US to them.  Do this, but with acquisitions.

General.Zhukov said:

What are other governments (state, local, foreign, multi-national) doing?  is anyone doing it better than us in a way that we can learn from?

Do the other governments have equivalent coverage to the US FAR Part 19 Small Business and the various Small Disadvantaged Business Programs as well as all the other social program requirements? Labor program requirements?

Has everyone here ever seen the size of the US Department of Labor Headquarters in Washington DC ? It’s one of the largest.

Not saying these are all bad programs but they do affect costs and add many pages to the acquisition regulations.

Many State and local acquisition regulations serve much smaller jurisdictions,  interests, scopes and programs. Many simply reference Federal requirements that are applicable to their jurisdiction, such as OSHA safety and health, EPA, etc…

Good discussion.  Just sitting here thinking that if I distilled a whisky that I did not like would I keep messing with the one I did not like (more of this or that, more time in the barrel, etc) or start the distilling process all over again?   Maybe the true path forward is forget the FAR and trying to do anything with it and just start all over again.   Wasn't that what happened 40 years ago when the FAR was codified and promulagated?  Monunmental task, abosolutely, too simple, probably but why not?

The task isn’t as daunting as it seems at first blush.  It takes just a small group of experts brainstorming ideas over a few weeks to get a first cut.  The challenge is reconciling all the competing interests when they get a chance to comment.  But if whoever in charge decided to make quick yet informed decisions, we could have a new regulation in less than a year if not sooner.

The compounding problem is Congress tries to make the process many things to many people.  But the basic theme of best value and optimally supporting mission isn’t difficult to understand.

C Culham said:

Maybe the true path forward is forget the FAR and trying to do anything with it and just start all over again.   Wasn't that what happened 40 years ago when the FAR was codified and promulagated?

Carl, not sure if you are making a connection of FAR to pre-FAR as “starting all over”. As I recall the FAR was intended to consolidate the DOD and several non-DOD acquisition regulations and to provide more uniformity,  consistency and standardization to the various acquisition processes across the government.

Much of the Defense Acquistion Regulations (DAR formerly entitled ASPR) were brought across as I recall, at least in my areas of engineering and construction contracting. Actually, the Defense Acquistion Regulations Council under the FAR Council  (DAR Council) is probably the organization that promulgated the DAR.

The Nash and Cibinic first edition of Administration of Government Contracts was published in 1981. The first edition of Formation of Government Contracts was published in 1982. The second edition of these books were published in 1985 after the FAR was effective in 1984.

I am following up to my own comment about int'l comparison.  A grad school prof of mine who did some work with int'l comparative procurements thought the UK was the best in the Anglo-speaking world at this.  So here is a snippet of how they do things. 

The UK overhauled their procurement laws recently and its orders of magnitude more streamlined than the FAR.  Slick guide.  The 'Procurement Act' is a slim ~150 pages or so.  It has many supplemental guides and notes that are more detailed - stuff that is in the FAR.

UK a completely different legal, regulatory and market structure, obviously.  Like the way that Defense/Intel vs. Civilian contracting works is totally different, the concept of 'commercial' is there, sort of, but very different, and they don't use anything like the US list of clauses (so I've been told).  Nevertheless, it's a meaningful comparison. 

This excerpt is, to me, self-evidently better than the FAR.  

56 Technical specifications

(1)This section applies in relation to—

(a)a competitive tendering procedure; (b)an award of a public contract in accordance with a framework; (c)a process to become a member of a dynamic market.

(2)The procurement documents may not refer to design, a particular licensing model or a description of characteristics in circumstances where they could appropriately refer to performance or functional requirements.

(3)The procurement documents may not refer to a United Kingdom standard unless—...

(4)If the procurement documents refer to a United Kingdom standard, they must provide that tenders, proposals or applications that the contracting authority considers satisfy an equivalent standard from another state, territory or organization of states or territories will be treated as having satisfied the United Kingdom standard.

(5)In considering whether a standard is equivalent to a United Kingdom standard for the purposes of subsection (4), a contracting authority may have regard to the authority’s purpose in referring to the standard.

(6)A contracting authority may require certification, or other evidence, for the purpose of satisfying itself that a standard is satisfied or equivalent.

(7)Unless the contracting authority considers it necessary in order to make its requirements understood, the procurement documents may not refer to a particular—

(a)trademark, trade name, patent, design or type, (b)place of origin, or (c)producer or supplier.

(8)If the matters mentioned in subsection (7) are referred to, the procurement documents must also provide that tenders, proposals or applications demonstrating equivalent quality or performance will not be disadvantaged.

Ah yes.  That brings back memories of my first contract negotiations class in 1981. Our instructor was a retired GS-17. He said that the UK tendering and subsequent contract requirements were essentially  a soft “starting place for discussions” (even after award). That was about 44 years ago.

International comparison works.  It’s important to not try and compare the entire process but note and gather nuggets on how particular subjects are handled.  The same applies to states and private industry.  Another really good source is government agencies exempt from the FAR.  FDIC, US Courts, Comptroller of Currency, FAA, and so on.  Then there are agencies partially exempt like PTO and FSA.

To me the ideal situation is a very brief FAR addressing mostly the statutory and other essential items.  It wouldn’t go into detail on how processes work in step-by-step manner but only at the highest level.  Contracting officers have a great deal of latitude on how to comply and use personal judgement in selecting the most beneficial approach for the instant need.  These COs have extensive training and are chosen after demonstrating a high degree of capability.  Detailed supplemental agency regulations are kept to a minimal.  Because of the latitude and flexibility’s afforded, many contracting solutions devised may be very beneficial for others.  Some organization like OFPP notes and communicates successful practices for others to use.  But these are not required and only suggestions.

This streamlining is quite interesting and could possibly pick up steam in the current climate (if championed by the right people). I do wonder that if the process is streamlined, would the roles/duties of the CO and CS change. Perhaps the 1102 role would take on more of a "buyer" sort of approach? I know it's getting into semantics, but the duties could affect the titles.

More.  This author is really good

https://blog.joelonsdale.com/p/america-needs-better-defense-acquisition

My agency firewall has problems allowing me to read the 100 page FAR posted on Linkedin.  Is there another way to view it?

@Melissa Rider  try this 100 page far

I have read other places that the "100 page FAR" is being confused with the official FAR rewrite (aka FAR 2.0).  I am not sure what is what but the confusion makes sense.  From my seat I am waiting for the 2.0 to hit the streets whether it be for comment or is just it, something again that is being debated.   Just a thought as the airways are cluttered with a lot of jet streams right now.

Question:

We have the Constitution.

We have the statutes enacted by Congress (positive law).

We have the common law decisions of the courts.

Why do we have regulations (administrative law)? What is their purpose?

Why do we have the FAR? What is its purpose?

Here is some background:

Congressional Research Service, R42826, The Federal Acquisition Regulation: Answers To Frequently Asked Questions (2024) https://www.congress.gov/crs-product/R42826

Vern Edwards said:

Question:

We have the Constitution.

We have the statutes enacted by Congress (positive law).

We have the common law decisions of the courts.

Why do we have regulations (administrative law)? What is their purpose?

Why do we have the FAR? What is its purpose?

Here is some background:

Congressional Research Service, R42826, The Federal Acquisition Regulation: Answers To Frequently Asked Questions (2024) https://www.congress.gov/crs-product/R42826

The purpose of the FAR as a regulation is to provide uniform policies and procedures for acquisition so that one who is within the Executive Branch of the Federal government can comply with a statute and keep within the sideboards of case law.  Dare I say "Federal Contracting for Dummies" even in light of the complications of the socio-economic ideals of Congress that have been woven into the statutes that govern Federal acquisition.    My simple view.

C Culham said:

The purpose of the FAR as a regulation is to provide uniform policies and procedures for acquisition so that one who is within the Executive Branch of the Federal government can comply with a statute and keep within the sideboards of case law.  Dare I say "Federal Contracting for Dummies" even in light of the complications of the socio-economic ideals of Congress that have been woven into the statutes that govern Federal acquisition.    My simple view.

Is the purpose limited to complying with statutes and case law? I don’t think so.

Every construction or A/E contract, whether commercial, private, state, local or Federal government has terms and conditions defining the roles and responsibilities and assignment of risk between the parties.

State, local, Federal and the various model construction or A-E specific contract clauses, terms and conditions are standardized for consistency and to avoid re-inventing the wheel. Industry would go crazy if Federal contract terms and conditions were all over the place.

Case law didnt create these terms and conditions and I doubt that they are statutory.

Here is the language from the original 1962 statute that created the discussions law, Pub. L. 87-653, The Truth in Negotiations Act:

Quote

(g) In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered : Provided, however, That the requirements of this subsection with respect to written or oral discussions need not be applied to procurements in implementation of authorized set-aside programs or to procurements where it can be clearly demonstrated from the existence of adequate competition or accurate prior cost experience with the product, that acceptance of an initial proposal without discussion would result in fair and reasonable prices and where the request for proposals notifies all offerors of the possibility that award may be made without discussion.

Here is what 10 USC 3303 says today about discussions in source selection:

Quote

(a) Evaluation and award.--The head of an agency shall evaluate competitive proposals in accordance with section 3301(a) of this title and may award a contract--

(1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or

(2) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary.

(b) Limit on number of proposals.--If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with such criteria.

Here is what 41 USC 3703 says:

Quote

(a) Evaluation and award.--An executive agency shall evaluate competitive proposals in accordance with section 3701(a) of this title and may award a contract--

(1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or

(2) based on the proposals received and without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), if, as required by section 3306(b)(2)(B)(i) of this title, the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions unless discussions are determined to be necessary.

(b) Limit on number of proposals.--If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with those criteria.

That's it for the statutes.

Based on those texts, previous statutory versions of those texts going back to 1962, decades of mostly GAO "case law", previous procurement regulations, and subsequent regulatory analysis, policy making, and regulation drafting and redrafting leading up to the 1997 FAR Part 15 Rewrite, we got today's FAR 15.306, Exchanges with offerors after receipt of proposals, which says this:

Quote

(a)Clarifications and award without discussions.

(1)Clarifications are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.

(2)If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.

(3)Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file (see the provision at 52.215-1) ( 10 U.S.C. 3303(a)(2) and 41 U.S.C. 3703(a)(2)).

(b)Communications with offerors before establishment of the competitive range. Communications are exchanges, between the Government and offerors, after receipt of proposals, leading to establishment of the competitive range. If a competitive range is to be established, these communications-

(1)Shall be limited to the offerors described in paragraphs (b)(1)(i) and (b)(1)(ii) of this section and-

(i)Shall be held with offerors whose past performance information is the determining factor preventing them from being placed within the competitive range. Such communications shall address adverse past performance information to which an offeror has not had a prior opportunity to respond; and

(ii)May only be held with those offerors (other than offerors under paragraph (b)(1)(i) of this section) whose exclusion from, or inclusion in, the competitive range is uncertain;

(2)May be conducted to enhance Government understanding of proposals; allow reasonable interpretation of the proposal; or facilitate the Government’s evaluation process. Such communications shall not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. Such communications may be considered in rating proposals for the purpose of establishing the competitive range;

(3)Are for the purpose of addressing issues that must be explored to determine whether a proposal should be placed in the competitive range. Such communications shall not provide an opportunity for the offeror to revise its proposal, but may address-

(i)Ambiguities in the proposal or other concerns (e.g., perceived deficiencies, weaknesses, errors, omissions, or mistakes (see 14.407)); and

(ii)Information relating to relevant past performance; and

(4)Shall address adverse past performance information to which the offeror has not previously had an opportunity to comment.

(c)Competitive range.

(1)Agencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range. Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant to paragraph (c)(2) of this section.

(2)After evaluating all proposals in accordance with 15.305(a) and paragraph (c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals ( 10 U.S.C. 3303 and 41 U.S.C. 3703).

(3)If the contracting officer, after complying with paragraph (d)(3) of this section, decides that an offeror’s proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award. Written notice of this decision shall be provided to unsuccessful offerors in accordance with 15.503.

(4)Offerors excluded or otherwise eliminated from the competitive range may request a debriefing (see 15.505 and 15.506).

(d)Exchanges with offerors after establishment of the competitive range. Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.

(1)Discussions are tailored to each offeror’s proposal, and must be conducted by the contracting officer with each offeror within the competitive range.

(2)The primary objective of discussions is to maximize the Government’s ability to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation.

(3)At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment.

(4)In discussing other aspects of the proposal, the Government may, in situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, negotiate with offerors for increased performance beyond any mandatory minimums, and the Government may suggest to offerors that have exceeded any mandatory minimums (in ways that are not integral to the design), that their proposals would be more competitive if the excesses were removed and the offered price decreased.

(5)If, after discussions have begun, an offeror originally in the competitive range is no longer considered to be among the most highly rated offerors being considered for award, that offeror may be eliminated from the competitive range whether or not all material aspects of the proposal have been discussed, or whether or not the offeror has been afforded an opportunity to submit a proposal revision (see 15.307(a) and 15.503(a)(1)).

(e) Limits on exchanges. Government personnel involved in the acquisition shall not engage in conduct that-

(1)Favors one offeror over another;

(2) Reveals an offeror's technical solution, including—

(i)Unique technology;

(ii)Innovative and unique uses of commercial products or commercial services; or

(iii)Any information that would compromise an offeror's intellectual property to another offeror;

(3) Reveals an offeror's price without that offeror's permission. However, the contracting officer may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion. It is also permissible, at the Government's discretion, to indicate to all offerors the cost or price that the Government's price analysis, market research, and other reviews have identified as reasonable ( 41 U.S.C. 2102 and 2107). When using reverse auction procedures (see subpart 17.8), it is also permissible to reveal to all offerors the offered price(s), without revealing any offeror's identity;

(4) Reveals the names of individuals providing reference information about an offeror’s past performance; or

(5) Knowingly furnishes source selection information in violation of 3.104 and 41 U.S.C.2102 and 2107).

Get it? See the issue? Understand?

Now, what would you do during a source selection if FAR 15.306 were to go away and all you had to deal with was the language in 10 USC 3303 and 41 USC 3703? Hmmm?

That, my colleagues, might be the challenge facing you under FAR 2.0.

Consider it an opportunity to excel, as an old general officer boss of mine used to tell me.

There a poster in my office showing a World War II American paratrooper standing in the door of a C-47 ready to jump into Normandy on D-Day. Outside the door German flak is exploding, tracers are rising up, C-47s are going down in flames, and parachutes are drifting down. The text on the poster says, "Everything will kill you, so choose something fun."

I hope for your sakes that FAR 2.0 is fun!

joel hoffman said:

Every construction or A/E contract, whether commercial, private, state, local or Federal government has terms and conditions defining the roles and responsibilities and assignment of risk between the parties.

Yes, but the FAR helps with that above and beyond the private sector ones.   That socio-economic thing I mentioned.

joel hoffman said:

Industry would go crazy if Federal contract terms and conditions were all over the place.

I guess industry was crazy before Federal contracting came along as I imagine every private contract was all over the place.

joel hoffman said:

Case law didnt create these terms and conditions and I doubt that they are statutory.

I will just use Vern's most recent post to support that case law has an impact on the wording of FAR provisions and clauses.

Vern Edwards said:

Based on those texts, previous statutory versions of those texts going back to 1962, decades of mostly GAO "case law", previous procurement regulations, and subsequent regulatory analysis, policy making, and regulation drafting and redrafting leading up to the 1997 FAR Part 15 Rewrite, we got today's FAR 15.306, Exchanges with offerors after receipt of proposals,

Vern Edwards said:

I hope for your sakes that FAR 2.0 is fun!

Dumb me but I found the original FAR fun to a point and then it became an exasperation as it grew.  

What won't make 2.0 any fun is that it will be based on systems, AI and the like to alleviate the continued shrinkng workforce.    I for one think that the inability to lace ones boots up AS A CO, and head out to the field (as used in the broad context) will be the detriment to even 2.0.   But my idea of fun is different than that of others such as playing golf on a couch with a controller versus roaming (and I mean roaming) around a real golf course.

If they gut the FAR 15 rewrite language concerning discussions, it probably wouldn’t matter much. From my perspective , many contracting officers never learned the differences between the pre-rewrite language and how to bargain for better performance anyway. Minimal negotiating-as though it were like having to get your teeth pulled. .

Had several KO’s in different Districts argue with me, stating that if the proposals meet the minimum requirements, they couldn’t negotiate in an effort to improve them. That’s how we got some design-build ugly buildings that were objectionable to the installations, for example. The previous FAR didnt really emphasize discussing weaknesses, from my memory.

C Culham said:

Yes, but the FAR helps with that above and beyond the private sector ones.   That socio-economic thing I mentioned.

Huh? Im not referring to any of the socio-economic aspects of the FAR here. I’m talking about the A-E and construction contract-specific clauses and coverage, that are comparable to other non-FAR A-E and construction contracting models. They have been used a long before the FAR, going at least back to the beginning of the seventies in DoD contracting for construction and A-E contracting.

C Culham said:

I guess industry was crazy before Federal contracting came along as I imagine every private contract was all over the place.

I’m referring to federal A-E construction contracts being all over the place without standardized formats and consistency within those specific areas. There are billions of dollars of DoD A-E/construction contracts alone awarded each year across the Services.

Obviously, there are various standardized formats and conditions for each State and local government contracting organizations. And when I was in private practice we used standard formats.

joel hoffman said:

Huh? Im not referring to any of the socio-economic aspects of the FAR here. I’m talking about the A-E and construction contract-specific clauses and coverage, that are comparable to other non-FAR A-E and construction contracting models. They have been used a long before the FAR, going at least back to the beginning of the seventies in DoD contracting for construction and A-E contracting.

Our perspectives I think align even though we may be debating.  I know one can argue what is good and what is not from an industry standpoint but then I wonder.  The quick examples. The Changes Clause, industry standard or government created?   Davis Bacon not socio-economic?   The discussed and cussed use of FAR part 12 for construction?  30,000 foot views that I know have history like that of FAR part 15 that Vern has mentioned but then I start wondering......to this

joel hoffman said:

I’m referring to federal A-E construction contracts being all over the place without standardized formats and consistency within those specific areas. There are billions of dollars of DoD A-E/construction contracts alone awarded each year across the Services.

Obviously, there are various standardized formats and conditions for each State and local government contracting organizations. And when I was in private practice we used standard formats.

I would offer that I think even with the FAR it is of sorts all over the place today.

In the end I wonder if history counts?  FAR 2.0 is the forward look and it will be interesting to see where it plans to take Federal contracting in total.

Remember that D-B is statutory. The original 1920’s  D-B threshold was higher than the current statutory threshold, which was understandably lowered during the 1930’s Depression era.

Trump won’t fight the labor unions there, even though the ridiculously low,  unchanged Depression era threshold is of no benefit to union labor. Applying D-B requirements to jobs that small is administratively wasteful (time spent and $) for both industry and gov’t.

Edit add: The changes clause allows the government to make unilateral, in-scope written or (case law - constructive) changes and establishes the basis for an equitable adjustment for increases or decreases (per case law) in the contractors cost  and time extensions, etc. The part 12,  commercial contract clause , allowing only bilateral agreement before making a change is unworkable for construction contracting - often resulting in delays, disruption and/or rework and other time schedule and cost impacts. $$$$ and T—-i—-m—-e——.

By the way, there is much civil, UCC and common law litigation concerning disputes on non-federal construction and A-E contracting. There is  much variation, depending upon the particular state laws and jurisdictions  as well as jurisdictional precedent decisions.

Appeals of decisions are common. I used to get monthly summaries and still am subscribed to one monthly source. I still have a shelf full of yearly updates to such case law. Haven’t read them in 18 years but kept them because I’m too lazy to clean out my bookcase. 😆

State laws are heavily influenced by industry lobbyists and associations. I know from experience, having being a registered PE in two states.

Can we get off architect-engineer and design-build contracting now and back to the original topic?

On 3/28/2025 at 5:26 AM, Vern Edwards said:

Question:

We have the Constitution.

We have the statutes enacted by Congress (positive law).

We have the common law decisions of the courts.

Why do we have regulations (administrative law)? What is their purpose?

Why do we have the FAR? What is its purpose?

Here is some background:

Congressional Research Service, R42826, The Federal Acquisition Regulation: Answers To Frequently Asked Questions (2024) https://www.congress.gov/crs-product/R42826

Under the Constitution, the President is the official charged with executing the law (Article II, § 1 and § 3). The Framers knew that the President would need others to carry out the President’s executive power. Here, the President appoints various officials (Heads of Departments/Agencies). In theory, we have regulations because they provide the details of statutory implementation because the laws often contain gaps. At some point, it would be good to discuss why there are gaps in statutes, but I won’t start that discussion here.

Someone already mentioned the FAR’s stated purpose so I want to highlight the fact that regulations aren’t the only choice for implementing statutes. Read Elizabeth Magill’s Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383 (2004). Keep in mind, even when regulations are used, the White House can override using the ‘regulatory review’ process.

Personally, I think the Congress sees the Executive as the subject matter expert on certain things and leaves it up to the executive departments to craft implementing rules. Congress controls and delegates implementation, in part, through the Administrative Procedure Act (APA). While we have regulations such as the FAR to implement, interpret, or prescribe law, they serve the practical purpose of providing standardization and predictability. In my opinion, what’s missing from regulations is a hard look into the usefulness/effectiveness and cost-benefit analysis.

We can reimagine all of this. If the current process doesn’t serve our needs, we should change it.

Jamaal Valentine said:

At some point, it would be good to discuss why there are gaps in statutes, but I won’t start that discussion here.

Why are there "gaps" in statutes?

Congress enacts statutes (positive law) that delegate certain powers to agencies (that’s why they are called agencies), such as the power to buy goods and services.  Congress leaves "gaps" in statutes for a number reasons, ignorance and carelessness being among them, and also because its members cannot be expert in everything the government does𑁋like fight wars, design weapon systems, maintain public health, and control air traffic𑁋so they leave some details about implementation to people they expect to know more. And gaps may emerge after the enactment of laws due to unanticipated developments.

As agents of Congress, agencies publish regulations (administrative law) to inform the public about and direct their personnel concerning how they will use their delegated powers. The FAR is one such regulation. In doing so, agencies have as much discretion in the use of their delegated powers as the Constitution and the laws allow and as they choose to exercise.

The courts and various administrative tribunals review agency actions to determine whether they have been done in compliance with statutes and their own regulations. Their decisions often lead agencies to change their regulatitons, and sometimes prompt Congress to amend their laws.

A 100-page FAR would probably not be long enough to implement all the statutes that Congress has enacted to govern procurement. But a regulation that strikes out all text that does not implement a statute would presumably give agencies a lot more discretion than their own regulations currently allow. The question is whether the workforce is competent enough to exercise such discretion wisely.

Vern Edwards said:

As agents of Congress, agencies publish regulations

Solely agents of Congress? Are not the agencies agents of the President in that they assist in the President's effort via Article II, Section 3 of the Constitution to "take care that the laws are faithfully executed"?

C Culham said:

Are not the agencies agents of the President in that they assist in the President's effort via Article II, Section 3 of the Constitution to "take care that the laws are faithfully executed"?

@C Culham The Framers intended Congress to be the preeminent branch of government. See Whittington, THE PLACE OF CONGRESS IN THE CONSTITUTIONAL ORDER, 40 HARV. J. L. & PUB. POL'y 573 (June 2017):

It is no accident that the Constitution begins with Congress. The Founders understood that the legislature would be central to the new constitutional project. Congress would be the foundation stone upon which the rest of the governmental edifice would be constructed, and so it necessarily came first in the constitutional document and absorbed the bulk of the delegates' attention at the Philadelphia Convention in the summer of 1787. Getting the national legislature right, they believed, was their most important task if the government they were constructing was to be successful.

What is the president, if not an agent of Congress? According to the Constitution the president's job is to faithfully execute the laws they pass. Presidents need their consent to appoint cabinet officials, and they can remove presidents from office. A president cannot remove any of their members. And Congress has created many independent agencies. The president must report to them annually. They don't have to report to the president. Presidents must ask them to approve their budget, and they can override a president's veto.

Don't be fooled by the way various congresses and voters have let presidents behave.

Thank you

Thank you, Vern. This was an important refresh for me.

On 3/27/2025 at 6:08 PM, Melissa Rider said:

My agency firewall has problems allowing me to read the 100 page FAR posted on Linkedin.  Is there another way to view it?

www.100pagefar.com or on your phone.

On 3/27/2025 at 6:08 PM, Melissa Rider said:

My agency firewall has problems allowing me to read the 100 page FAR posted on Linkedin.  Is there another way to view it?

www.100pagefar.com or on your phone.

On 3/30/2025 at 8:43 AM, Vern Edwards said:

Why are there "gaps" in statutes?

Congress enacts statutes (positive law) that delegate certain powers to agencies (that’s why they are called agencies), such as the power to buy goods and services.  Congress leaves "gaps" in statutes for a number reasons, ignorance and carelessness being among them, and also because its members cannot be expert in everything the government does𑁋like fight wars, design weapon systems, maintain public health, and control air traffic𑁋so they leave some details about implementation to people they expect to know more. And gaps may emerge after the enactment of laws due to unanticipated developments.

As agents of Congress, agencies publish regulations (administrative law) to inform the public about and direct their personnel concerning how they will use their delegated powers. The FAR is one such regulation. In doing so, agencies have as much discretion in the use of their delegated powers as the Constitution and the laws allow and as they choose to exercise.

The courts and various administrative tribunals review agency actions to determine whether they have been done in compliance with statutes and their own regulations. Their decisions often lead agencies to change their regulatitons, and sometimes prompt Congress to amend their laws.

A 100-page FAR would probably not be long enough to implement all the statutes that Congress has enacted to govern procurement. But a regulation that strikes out all text that does not implement a statute would presumably give agencies a lot more discretion than their own regulations currently allow. The question is whether the workforce is competent enough to exercise such discretion wisely.

I sure hope so -- we also need political cover. I guess we'll find out.

@Ster Whitehead Glad to see you joined here. Hope you jump in all the topics including this one.