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And...the Rules-of-the-Roadon the Promulgation of Government Contract 

Clauses/Regulations Are...?

Charles E. Rumbaugh

Rumbaugh ADR Officeswww.Rumbaugh.net

December 9, 201011:15—12:30

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Overview

• Use of Maverick/Unauthorized Contract Clauses and/or Solicitation Provisions increasing?

• Cost savings by Streamlining? • What are the regulatory Rules-of-the-Road on

using non-FAR clauses?• Who manages the FAR/DFARS?• Federal Register & Paperwork Reduction Act

Requirements• Deviations• Recent Issues• Additional Resources

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Use of Maverick/Unauthorized Contract Clauses and/or Solicitation Provisions increasing?

Cost savings by Streamlining?

• AIA Past Studies on Cost Impact• Dr. Ashton Carter Initiative• Increased use of “Interim” Rules• Due Process Wanting!• Competition and Equal-Playing Field!• Examples?

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What are the Regulatory Rules-of-the-Road?

• Focus is on DoD and Military Departments• FAR applies to all acquisitions except where

expressly excluded.  FAR 1.104• Subject to certain limitations…Agency

acquisition regulations that implement or supplement (including clauses/provisions) the FAR are authorized.  FAR 1.301(a). – What/who is an “agency?”

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What are the Regulatory Rules-of-the-Road?

• Agency acquisition regulations, etc. are for military departments and defense agencies. FAR 1.301(d)

• Regulations are limited to…

        a) those necessary to implement FAR policies and procedures within the agency AND

         b) additional policies, procedures, solicitation provisions, or contract clauses that supplement the FAR to satisfy the specific needs of the agency. FAR 1.302

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Who manages the FAR/DFARS?

• Role of Director of Defense Procurement & Acquisition Policy

• DoD Competition Advocate• OFPP• IG• DCAA

Everyone is a stakeholder in the integrity of the process!

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What is the “Due Process” Requirement?

• Notice/Comment

• Role of Federal Register

• Agency heads shall ensure that agency regulations are published for public comment in the Federal Register when they have a significant effect beyond the internal operating procedures of the agency or have significant cost or administrative impact on contractors or offerors. FAR 1.301(b)  and FAR 1.303. 

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What is the “Due Process” Requirement?

• Public comments through the Federal Register usually required with a minimum of 30 days and, normally, at least 60 days will be given for the receipt of comments.  FAR 1.501-2   

• Urgent and compelling circumstances make solicitation of comments impracticable prior to the effective date of coverage – 41 USC 418b (d)(2) trumps FAR 1.501-3

• Statutes enacted (in some cases) years before rules issued

• Temporary verses Interim…and the difference is…

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Paperwork Reduction Act

• Paperwork Reduction Act requires OMB approval of federal agencies collecting information from 10 or more members of the public.  FAR 1.106 

• Penalties

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Use of Specific Clauses/Provisions

• Deviations FAR 1.400– Inconsistent with the FAR/DFARS?

• Individual verses Class Deviation• Deviations from statutes not authorized• When an agency knows that it will require a class

deviation on a permanent basis, it should propose a FAR revision When an agency knows that it will require a class deviation on a permanent basis, it should propose a FAR revision….

• FAR guidance, including numbering, on using provisions and clauses…see FAR Subpart 52.1.     

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Recent Issues

• DoD “Policy Vault” memos• July 13, 2010, interim rules • July 2, 2010, Recovery Act• September 8, 2010, DFARS interim rule on

personal/non-personal services, “Guidance on Personal Services.”

• ABA Public Contract Law Section letters to DoD including…Non-compliance with OFPP Act and Federal Register publication

• September 24, 2010, industry/DPAP meeting• Others?

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Additional Resources

• "There's a FAR Better Way," NCMA Contract Management, July 2010

• “Termination for Failure to Make Progress in Contract Performance,” NCMA Contract Management, June 2010

• “The FAR System is Out of Control," NCMA Contract Management, April 1989.

• John Pachter's article in ABA Public Contract Law Journal, Summer 2010

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Summary

Dilemma of Contracting Officers:

Responding to RFPs:

Other Impacts:

Charles E. Rumbaugh

Rumbaugh ADR Officeswww.Rumbaugh.net