Agencies need governmentwide guidance on suspension and debarment process, GAO official says

Though the suspension and debarment system has been around for many years,  there is little guidance for it, Government Accountability Office Acting  Director of Acquisition and Sourcing Management John Neumann said at a June 12  House Government and Oversight Committee hearing.

“You won’t find anywhere in the U.S. code other than a note in the financial  chapter,” Neumann said. “That’s part of the problem. We created a system, but  did not supply guidance on how it should operate.”

The Interagency Suspension and Debarment Committee, established in 1986,  monitors and coordinates the governmentwide system of suspension and debarment,  but agencies aren’t required to work with the ISDC, Neumann noted.

ISDC relies on voluntary agency participation in its informal coordination  process, which works well when used, he said. However, Neumann found that not  all agencies coordinated through ISDC, and agencies without active suspension  and debarment programs generally were not represented at monthly coordination  meetings.

Keep reading this article at: http://www.fiercegovernment.com/story/agencies-need-governmentwide-guidance-suspense-and-debarment-process-gao-of/2013-06-13?utm_medium=nl&utm_source=internal

DoD proposes anti-counterfeit IT measures

The Defense Department has proposed updating its acquisition regulations to  require major contractors subject to cost accounting standards – and their large  subcontractors – to have anti-counterfeit avoidance and detection systems in  place for electronic parts.

The long-awaited proposal, issued mid-May,  would implement requirements from the fiscals 2012 and 2013 national defense  authorization acts, passed amid concern  that counterfeit milspec electronic parts have made their way into weapons  systems, potentially undermining their reliability or making them open to a  remote cyber attack – although cybersecurity experts have said  the risk presented by the latter possibility is relatively low.

The proposal would require companies with cost-reimbursement contracts  subject to cost-accounting standards (a requirement that can’t be valid for  contracts worth less than $700,000) to mount an acceptable anti-counterfeiting  effort that would include training, inspection, parts traceability, use of  “trusted suppliers” and a methodology to rapidly determine whether a suspect  part is, in fact, counterfeit. The proposed rule doesn’t define what a trusted  supplier would be.

Keep reading this article at: http://www.fiercegovernmentit.com/story/dod-proposes-anti-counterfeit-it-measures/2013-06-04

 

SBA’s advocacy office catches fire from business and academic communities alike

The business community’s ombudsman within the Small Business Administration defended his office’s record against attacks from both the right and the left on Thursday.

Chief Counsel for Advocacy Winslow Sargeant was accused by business groups of allowing agencies to write regulations with little input from affected companies while an academic charged that his office is a tool of corporate anti-regulatory lobbying.

Rep. David Schweikert, R-Ariz., chairman of the House Small Business Subcommittee on Investigations, Oversight and Regulations, called the hearing out of concern that agencies may not be complying with the 1980 Regulatory Flexibility Act.

“Each year, federal agencies publish between 3,000 to 4,000 new regulations and many of those rules impose burdens on small businesses,” he said.

Keep reading this article at: http://www.govexec.com/oversight/2013/03/sba-office-catches-fire-businesses-and-academic-alike/61884/?oref=govexec_today_nl.

Tool tracks comments on proposed government regulations

The Sunlight Foundation has launched a new open government tool that allows users to track comments on proposed rules by the broader topic, the commenter or the rule itself.

The tool, called Docket Wrench, allows users to search for proposed rules using key works, such as hydraulic fracturing or “fracking.” Users can then drill down to who commented on specific proposed rules. Users can also search for all comments by a specific organization.

Keep reading this article at: http://www.nextgov.com/emerging-tech/2013/01/new-open-government-tool-parses-comments-federal-regulations/61012/?oref=nextgov_today_nl.

Sunlight Foundation’s announcement: http://sunlightfoundation.com/blog/2013/01/31/docket-wrench-exposing-trends-regulatory-comments/ 

Reports contend SBA advocacy office guided by big business

An office designed to advocate for the protection of small businesses has  routinely worked against health and safety regulations despite lacking the  relevant scientific expertise or a clear benefit for small businesses, say two  reports.

The studies, both released last Tuesday (1/29/2013), from the Center  for Effective Government (.pdf) and the Center  for Progressive Reform (.pdf) say that the Small Business Association’s  Office of Advocacy is a largely unaccountable office whose comments carry a  heavy weight because it was created to ensure federal rules take small business  needs into account.

Keep reading at: SBA office guided by big business, say reports – FierceGovernment http://www.fiercegovernment.com/story/sba-office-guided-big-business-say-reports/2013-01-31#ixzz2JaBeMn1s

Subscribe: http://www.fiercegovernment.com/signup?sourceform=Viral-Tynt-FierceGovernment-FierceGovernment

 

DOD needs simpler contracting processes, lawmakers told

Congress and the Defense Department need to simplify the department’s confusing and burdensome acquisition regulations in order to make the jobs of the acquisition workforce and contractors easier, the House Armed Services Committee recommended in a new report.

In one recommendation, the report says DOD and Congress should embark on a comprehensive review of laws and regulations related to procurement. They then should attempt to amend or even repeal outdated regulations. In doing so, officials should consider whether a rule has had unintended consequences that outweigh its original purpose.

“This effort should be undertaken with an eye to simplifying and streamlining all aspects of the acquisition process and reducing the negative cost and schedule impacts,” according to the report released March 20.

The House committee’s Panel on Business Challenges Within the Defense Industry released the report after discussing acquisition issues with more than 150 people from government, industry, think tanks and academia.

The panel learned in those discussions that the acquisition rules are constantly changing and are extremely complicated. The result is unnecessary complexity, confusion, and poor execution, which only furthers challenges for the acquisition workforce, according to the report.

The Office of Management and Budget urged agencies on March 20 to take similar steps in an effort to avoid duplication among regulations. It even urged agency officials to talk to contractors and other experts before they issue a proposed rule.

DOD’s acquisition rules are off-putting to some companies, the panel wrote in its report.

“The plethora of regulations specific to government and defense contracting dissuades many companies from competing for government contracts,” the panel found.

The complexities also make it tough for the department’s acquisition workforce, which is going through a slow rebuilding process. Employees need a lot of training to understand the ins and outs of the acquisitions regulations and manage complex procurements, the panel wrote.

The workforce took a hit in the 1990s with a major reduction in its numbers. Nowadays, defense officials are attempting to rebuild it. They have hired a lot of new employees, dubbed by the panel as a “new-hire bulge.” Meanwhile many senior members are eligible for retirement.

“These parallel bulges constitute a ‘bathtub effect’ as mid-career personnel are not abundant enough to adequately replace the retirement bulge, nor provide for enough on-hands mentorship to the new-hire bulge,” the panel wrote.

DOD’s training now is very important, the panel added. Maturity in the job and higher education are keys to a strong workforce. It’s more than numbers.

Higher education equips acquisition workers with complex skill sets in finance, systems engineering, logistics, and operations management needed to administer large contracts and manage long-term technology projects.

In President Barack Obama’s fiscal 2013 budget proposal, DOD requested $374 million in its acquisition workforce development fund for recruiting and hiring acquisition and only $120 million, or less than a third, for training and development of the workforce, the panel points out.

“Just as it takes many years to develop a military leader capable of commanding at the senior ranks of the operational force, it takes a similar amount of time to develop an acquisition professional with the knowledge, skills, and experience needed to manage large defense acquisition efforts,” the panel wrote.

About the Author: Matthew Weigelt is a senior writer covering acquisition and procurement for Federal Computer Week. This article appeared Mar. 22, 2012 at http://washingtontechnology.com/articles/2012/03/22/regulatory-reform-dod-acquisition.aspx?s=wtdaily_230312.

OMB: Agencies must use plain language summaries in regulations

The Office of Management and Budget issued a memo Jan. 4, 2012 calling for government agencies to provide executive summaries at the beginning of all enacted rules and regulations.

According to Cass Sunstein, administrator of the OMB’s information and regulatory affairs office, summaries should be written in “plain language and easy to understand.”

In a Jan. 6 blog post, Sunstein wrote the purpose of the new rule is to promote public understanding, while ensuring an open exchange of information and perspectives.

“Such summaries will make it far easier for people to understand what they are being asked to do,” wrote Sunstein in her post.

Summaries should run no longer than four double spaced pages when possible and outline the regulatory action, cost and benefits as well as provide a summary of the action.

“The use of clear, simple executive summaries will make it far easier for members of the public to understand and to scrutinize proposed rules,” wrote Sunstein.

— published by ExecutiveGov by Executive Mosaic – Jan. 12, 2012 at http://www.executivegov.com.

Contractors ordered to post DOD fraud hotline info

Make room on the bulletin board near contractor coffee makers and break rooms.

The Defense Department now requires its defense contractors to post the DOD inspector general’s fraud hotline posters in common work areas. The rule took affect Sept. 16, according to a notice in the Federal Register the same day.

The DOD IG didn’t think the old rules went far enough because the Federal Acquisition Regulation allowed a contractor to not post any other agency’s hotline numbers other than those of the Homeland Security Department if the company had its own business ethics program with a means of reporting fraud or waste.

However, the DOD IG believes the FAR might be limiting the use of its own hotline. Without a poster, an employee wouldn’t know the IG’s phone number.

“According to the DOD IG, some contractors’ posters may not be as effective as the DOD poster in advertising the hotline number, which is integral to the fraud program,” the notice explained. The DOD IG is also revising its poster to tell employees of federal whistleblower protections.

The rule amends the Defense Federal Acquisition Regulation Supplement, or DFARS.

In response to the proposal in May, some experts were concerned that the new hotline posters could replace the contractor as the first line of defense against waste and fraud. It would also get the IG involved in what often turns out to be human resource issues or concerns about day-to-day activities that may need immediate attention.

But the IG said its staff knows the difference between an urgent matter about a defense contract and a routine personnel issue.

The rule applies to contracts and subcontracts that exceed $5 million. It does not apply to purchases of commercial items or for work that will be performed entirely outside the United States if the contract exceeds $5 million.

About the Author: Matthew Weigelt is a senior writer covering acquisition and procurement at Washington Technology. This article appeared on Sept. 19, 2011 at http://washingtontechnology.com/articles/2011/09/19/dod-ig-required-fraud-hotline-posters.aspx?s=wtdaily_200911.

Obama’s regulatory chief announces reforms at 30 agencies

Fleshing out agency responses to President Obama’s push to rethink regulations, Office of Information and Regulatory Administrator Cass Sunstein on Thursday announced alterations to long-standing rules under way at 30 federal agencies that together, he said, could save billions in dollars and millions of staff hours.

In his summary of agency progress 120 days after Obama’s Jan. 18 executive order, Sunstein said current paperwork reduction efforts at the Transportation and Labor departments and the Environmental Protection Agency alone could save $1 billion and tens of millions of work hours for state and local governments. He spoke at a talk titled “A Regulatory Look-Back: A First Look” at the American Enterprise Institute, his former employer, and he published a related op-ed on “21st-Century Regulation” in the May 26 Wall Street Journal.

The Obama initiative, Sunstein said, is “a corrective to national debate on regulation that has become polarized and stylized in a way not helpful. One side,” he said, “defends reductions in deaths on the highway, fighting fraud and abuse, keeping air and water clean and our food safe. But more recently, the other side says such regulations impair competitiveness, undermine innovation and ultimately cost jobs.

“They are legitimate arguments, but we can’t be solving serious problems in the abstract. The polarized debate is stuck in the past.”

A modern regulatory approach, he said, cannot rely on “anecdotes or intuition,” but instead must move toward “real-world random testing” of the benefits and harms of regulations. This requires “a change in culture in Washington to focus constantly on what is and what is not working,” he said. In the future, “agencies must hard-wire such scrutiny into agency processes.”

Today’s professional regulators “know much more than they knew during the New Deal and the Great Society,” or even during the 1980s and 1990s, he added. “Now we have state-of-the-art technology for cataloging the impact, risks and costs of regulations. Sometimes in reducing one risk, you increase another and there are ancillary harms,” he said. “But there are also ancillary benefits, and lives are saved.” What is desirable, he said, is “free choice, which both provides liberty and costs less.” Simpler regulations and public disclosure “help produce informed choices and creative approaches,” Sunstein said.

Sunstein made a bid to bridge the partisan divide. “It’s true that people’s values differ, but when the evidence is clear, it will lead in a direction even if there is an intensive difference in values. If a regulation brings big costs and little benefit, then citizens are unlikely to like it regardless of whether they are elephants or donkeys,” he said.

Examples of agencies’ current work include 70 initiatives at Transportation, 50 reforms at the Health and Human Resources Department, and 12 short-term high-priority projects at EPA. The Treasury Department has a five-year paperless initiative that will save 12 million pounds of paper and $400 million, Sunstein said.

EPA recently decided that that classifying milk as an oil — and thus requiring precautions to prevent oil spills — was an unjustifiable burden on dairy farmers, and so the resulting easing of rules will save industry $1 billion in the next decade. Similarly, EPA determined that gas stations no longer need air pollution recovery systems because modern vehicles do the job, saving upwards of $60 million annually, he said. And the Occupational Safety and Health Administration, he said, will save millions of dollars by eliminating 1.9 million annual hours of redundant employer reporting.

“Many of the [reforms] focus on the small businesses that create jobs,” Sunstein said. “And some are a fundamental rethinking of how things have been done.”

He is also determined to rid the Code of Federal Regulations of references to countries that “no longer exist.”

Laying out four principles, Sunstein said modern regulations should encourage public participation through ready access to scientific and technical information; should be harmonized and simplified to boost innovation; should use quantification to catalog costs and benefits; and emphasize freedom of choice, which “promotes compliance.”

In response to a questioner, Sunstein acknowledged that some of the recent changes were expansions of regulations rather than eliminations.

The National Association of Manufacturers, which has long been critical of Obama’s approach to regulation, reacted to Sunstein’s announcement with a statement: “Manufacturers are encouraged by the Obama administration’s efforts to streamline or remove several outdated and unnecessary regulations to allow manufacturers to focus on what matters most — creating jobs and economic growth. However, manufacturing workers will not fully benefit until the crushing burden of proposed new regulations is brought under control.

“The administration has taken several positive steps recently,” the group said. mentioning EPA’s effort on industrial boilers and OSHA’s work on noise standards as indicators that the administration has heard the concerns of manufacturers. “But new burdensome regulations such as those proposed by EPA to regulate greenhouse gas emissions and change ozone standards are a real threat to job creators and the economy. While today’s announcement is a great step, more must be done to limit the cumulative burden of regulations on businesses.”

Matt Madia, regulatory policy analyst for OMB Watch, a monitoring nonprofit, had a wait-and-see response. “There’s nothing wrong with doing a review,” he said, “but we should not lose sight of the fact that these regulations were written for a reason — to protect the environment, human health and the economy.”

Sunstein said there currently are 120 rules under review at the Office of Management and Budget and that the look back has not caused any noticeable slowdown.

The agency actions released today are for public comment, and should be finalized in “roughly 80 days,” he said.

Sunstein called his initiative “a defining moment” that will have impact decades in the future. He quoted Alexander Hamilton’s first Federalist paper, in which the Founding Father asked whether the country would be guided by “reflection and choice or be forever destined to depend on accident and force.”

– by Charles S. Clark – Government Executive – May 26, 2011 at http://www.govexec.com/story_page.cfm?articleid=47880&dcn=e_gvet

New SBA rules affect small businesses contracting programs

Newly-published rules by the Small Business Administration (SBA) address the justification and approval process associated with large sole-source contract awards to 8(a) firms; address parity among 8(a), HUBZone, and SDVOSB firms; and propose increases in the small business size standards for some industries.  Public comment is being solicited on the last item.

Specifically, the rules:

  1. Require federal agencies to issue a Justification and Approval prior to the award of 8(a) sole source contracts over $20 million;
  2. Clarify a contracting officer’s ability to use discretion when determining whether an acquisition will be restricted to small businesses participating in the 8(a), HUBZone or service-disabled veteran-owned small business (SDVOSB) programs; and
  3. Propose increases in the small business size standards for dozens of service industries in NAICS codes 54 and 81. 

The first two rules were issued as interim rules by the SBA and the Federal Acquisition (FAR) Council, and are effective immediately.  The third item is a proposed rule.  All were published on March 16, 2011 in the Federal Register.

Here are the details on the rules.

Justification and Approval for 8(a) Sole-Source Awards Above $20M

The FAR Council issued an interim rule implementing Section 811 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), which requires federal agencies to issue a Justification and Approval (J&A) prior to awarding a sole-source contract over $20 million under the 8(a) program.  The J&A must be approved by an appropriate official (as currently defined by FAR 6.304) and made public after award of the contract.  Prior to the enactment of section 811, a sole-source award of a new contract made using the 8(a) contracting authority did not require a J&A, regardless of the dollar value.  Under the interim rule, the J&A must document the reasons for making a sole-source award rather than a competitive award under the 8(a) program.  The rule institutes no new requirements for sole-source 8(a) awards less than or equal to $20 million.  Here is the full text of the rule: Justification and Approval of Sole-Source 8a Contracts 03.16.2011.

Parity Among 8(a), HUBZone, or SDVOSB Programs

The FAR Council issued an interim rule implementing Section 1347 of the Small Business Jobs Act of 2010 (Pub. L. 111-240) and clarifying that there is parity when a contracting officer selects among small businesses participating in the 8(a), HUBZone and SDVOSB programs.  Under the interim rule, contracting officers will have the discretion to determine whether an acquisition will be restricted to one of these three programs.  The full text of the rule is available here: Socioeconomic Program Parity 03.16.2011.

This interim rule also clarifies that:

  • Although there is no order of precedence among the three programs, if a requirement has been accepted by SBA under the 8(a) program, it must remain in the 8(a) program unless SBA agrees to release it;
  • For acquisitions exceeding the simplified acquisition threshold (that is, contracts more than $150,000), contracting officers must consider a set-aside or sole source award to a small business under the 8(a), HUBZone, or SDVOSB programs before proceeding with a small business set-aside; and
  • The small business set-aside requirement under FAR 19.502-2(a) does not preclude award of a contract to a participant in the 8(a), HUBZone, or SDVOSB programs.  SBA regulations give contracting officers the authority to use these programs at dollar levels above the micro-purchase threshold and at or below the simplified acquisition threshold.

It is important to note that the interim rule does not address SBA’s new Women-Owned Small Business (WOSB) program.  The WOSB program will be addressed as a separate interim rule under FAR Case 2010-015 and implement the SBA’s WOSB Federal Contract Program final rule (75 FR 62258, October 7, 2010).  The SBA rule provides for parity between WOSBs and other small business contracting programs.

Service Industries Size Standards

The SBA issued a proposed rule increasing the small business size standards for 35 industries and one sub-industry in North American Industry Classification System (NAICS) Code 54, Professional, Scientific and Technical Services, and one industry in NAICS Code 81, Other Services.  Many of the size standards would increase significantly under the proposed rule.  For example, several of the Sector 54 size standards will increase from $4.5M or $7M, to $14M or $19M.  The full text of the proposed rule is available here: Small Business Size Standards – Proposed – 03.16.2011.

The SBA is accepting public comments on the proposed changes to the small business size standards through May 16, 2011.