I heard a fascinating factoid at a conference recently: A word search of the Federal Acquisition Regulation for expressions beginning with the phrase “The contracting officer shall…” returned something like 1,500 mentions. And that does not count any additional “shalls” in FAR agency supplements.) The speaker who mentioned this said that it is scarcely a wonder that government contracting officials hardly have time to do the regulatory basics of their jobs, let alone finding time to think about approaches to getting better deals for the government or structuring a good business relationship. There are simply too many commandments.
Henry Mintzberg, the McGill university management scholar who is a favorite of mine, has made the point that the problem with a very rule-bound organizational environment is that it becomes natural for employees to assume that following the rules, which is supposed to assure a competent minimum level of performance, actually constitutes their entire job — that their job is done when they have followed the rules. With 1,500 “shalls” (obviously not all of them apply to every individual contracting official, especially in any given acquisition), it may be close to being true that all people have time to do is to follow the rules.
If we realize that we need to provide psychological and even literal room for contracting officials to be thinking about issues of acquisition strategy and not just checking various boxes, what should the Office of Federal Procurement Policy and the FAR Council be doing about the 1,500 shalls?
Rules serve two major purposes. One is to provide helpful information and advice to frontline people that represents accumulated wisdom about what contracting approaches are likely to produce good results. Think of these as a contracting equivalent of baking instructions on a package of Betty Crocker brownie mix. The other is to signal practices that either must be done or avoided for reasons of ethics and integrity. These are things frontline employees need to do whether they want to do or not.
Rules of the first sort should not have “shall” attached to them. It should be made clear they are suggestions, tricks of the trade, guidance. If a person doesn’t want to follow the recipe on the brownie mix package, they don’t have to. The “shalls” should be limited to rules of the second sort.
To deal with the excessive “shall” problem, the first step is figuring out which of these “shalls” are required by law and which are self-inflicted. For every “shall” not required by law, the FAR Council should be aggressively seeking to prune back “shalls” based on the distinction between job advice and ethical/integrity requirements.
Obviously this can’t all be done at one time, especially given the ponderous nature of the regulation-writing process the FAR Council itself has. Perhaps one part of the FAR should be taken as a test bed for this kind of scrubbing, and implementing changes to “shall” language should be a test bed for the efforts to improve the regulation development process that Dan Gordon at OFPP and Kathy Turco at GSA are attempting.
Dan and Kathy, the ball is in your court.
— by Steve Kelman – Federal Computer Week – May 19, 2011 at http://fcw.com/blogs/lectern/2011/05/1500-rules-for-contracting-officers.aspx