In recent years, the multiagency Federal Acquisition Regulations Council, the entity in charge of developing and codifying government procurement rules, has become bogged down in a cumbersome rule-making process that has created an unmanageable backlog of cases, many dating back several years, the officials said.
For example, in fiscal 2010 the FAR Council, which has representatives from the Defense Department, GSA and NASA, opened 36 cases and closed 42 others. But at the end of the year, 61 potential rules remained outstanding, meaning in most instances, rules took more than one year to finish. Some have taken up to five years, according to Kathleen Turco, associate administrator of governmentwide policy at GSA.
“If it takes that long, it’s not really good rule-making,” Turco said. “We want quality but not looking at timeliness is not acceptable either.” Typically, even a complicated rule should take less than one year, she said.
Looking to rectify the problem, leaders of the FAR Council and the Office of Management and Budget’s Information and Regulatory Affairs and Federal Procurement Policy shops, held a first-of-its-kind meeting on Feb. 9 to begin hashing out the process for reforming the outdated rule-making system.
Attended by 35 agency officials at GSA headquarters, the event was coordinated as a “slam,” in which key decision-makers lock themselves in a room to solve one problem and cannot leave until specific outcomes are achieved. GSA has hosted two previous slams on information technology and hiring for the acquisition workforce, but this was the first interagency event.
The meeting helped identify a number of causes for the backlog, including a lack of leadership on rule-making, particularly from GSA; a failure to elevate concerns to senior management; a high number of retirements and turnover; and insufficient interagency coordination.
“We need a tune-up on our system,” GSA Administrator Martha Johnson said. “Right now, we are driving our father’s car. It works, but is showing its age. I want a modern, electric car version of the FAR to take us where we need to go reliably and quickly.”
Officials during last week’s meeting identified three fundamental areas in need of examination: team management, case management and training. In each area, participants agreed to create action plans with projected milestones due by March 31.
“The slam was a huge success in effectively and efficiently getting all of the participating agencies to agree on these three key improvement areas,” said Bill Roets, senior procurement analyst in NASA’s Office of Procurement. “We are looking forward to working with the other federal agencies on these improvement areas and improving the FAR rule-making process.”
For example, the FAR Council currently is broken into six teams, with each devoted to a certain area of expertise such as small businesses, finance or technology. One of the three agencies represented on the council will take the lead in the effort, bringing in outside experts if necessary. The new review, to be led by NASA, will examine whether the FAR teams are structured correctly and coordinated most efficiently.
A second review, which Defense will lead, will examine the steps of the rule-making process, including rapidly resolving critical policy decisions, cutting the overall backlog, ensuring communication among the teams and bringing legal counsel in at the front end, Turco said.
The third examination, to be run by GSA, will look at enhancing the training program for FAR Council employees, many of whom have been on the job for less than one year. “We bring them on at GS-14 and 15 [levels] with a wealth of experience in procurement and contract management, but actual rule-making and policy drafting is an art all of its own,” Turco said. “We need to ensure they have training.”
While training is a concern, staffing for the council is not the problem, she said. GSA has 15 full-time employees devoted exclusively to studying, writing, editing and drafting acquisition rules. Previously, Turco said, many of those same workers would have multiple duties unrelated to the FAR.
“The structure of the office over here at GSA was convoluted and a mess,” she conceded.
But, other problems persist. In late March, Turco plans to address the lengthy and often unwieldy administrative process needed to submit a document to be published in Federal Register.
The working groups also will consider developing a collaboration tool — possibly a Google application — where the teams can work together online. Incredibly, much of the rule-making process, including the submission and editing of public comments, still is done on paper, contributing to the backlog, she said.
Once the backlog problems are addressed, senior leaders of the council plan to tackle the quality of the rule-making process, which Turco said has frequently devolved into “mommy management.”
“We are co-mingling rule-making with process,” she said. “We are too dictatorial in terms of how people carry out the policy and it is getting silly. We are co-mingling what we are supposed to be doing. Rulemaking is not telling people how to get from Point A to Point B.”
– by Robert Brodsky – GovExec.com – February 15, 2011