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May 2012

The FAR Rulemaking Process William Clark Acting Director, Federal Acquisition Policy Division General Services Administration. May 2012. Value of this training. Where does the FAR come from and why does it have to be used? Public Law mandates the use of the FAR for all Executive Agencies.

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May 2012

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  1. The FAR Rulemaking ProcessWilliam ClarkActing Director, Federal Acquisition Policy DivisionGeneral Services Administration May 2012

  2. Value of this training • Where does the FAR come from and why does it have to be used? • Public Law mandates the use of the FAR for all Executive Agencies. • Who can make changes to the FAR? • Any one, private citizen or federal agency can propose a change to the acquisition rules. • Why does it take so long to change the FAR? • A new law is issued by Congress, but it takes a year to put into effect in the FAR.

  3. Federal Acquisition Regulation (FAR) • The development of the Federal Acquisition Regulatory System is done in accordance with the Office of Federal Procurement Policy Act of 1974 (Pub. L. 93-400), as amended by Pub. L. 96-83. • It is the primary policy and procedure document used by all Federal Executive agencies in the acquisition of supplies, services and construction (except for FAA). The FAR has 53 parts. • The FAR is required by 41 USC 1303.

  4. Organization of the FAR • Subchapter A – General (Parts 1-4) • Subchapter B - Acquisition Planning (Parts 5-12) • Subchapter C - Contracting Methods & Contract Types (Parts 13-18) • Subchapter D - Socioeconomic Programs (Parts 19-26) • Subchapter E - General Contracting Requirements (Parts 27-33) • Subchapter F - Special Categories of Contracting (Parts 34-41) • Subchapter G - Contract Management (Parts 42-51) • Subchapter H- Clauses and Forms (Parts 52-53)

  5. Team for Implementing a FAR Change FAR Council DARC (Defense Acquisition Regulation Council) CAAC (Civilian Agency Acquisition Council) FAR Teams Finance Implementation Environmental and Labor Law Ethics and International Law Strategy Team Planning and Methods Technology Small Business Ad Hoc

  6. FAR Council - Administrator of OFPP - Director of Defense Procurement and Acquisition Policy (DoD) - Chief Acquisition Officer /Senior Procurement Executive (GSA) - Associate Administrator for Procurement (NASA) NOTE: The signatories for changing the FAR are GSA, DoD and NASA.

  7. Members of the CAAC • Chair (GSA) • Deputy Chair (GSA) • Departments of: Agriculture, Commerce, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, Veterans Affairs, • Environmental Protection Agency • Small Business Administration/Office of Advocacy • Social Security Administration • Small agency council • US Agency for International Development • CAAC Counsel (nonvoting)

  8. Members of the DARC • Director • Deputy Director • Army • Navy • Air Force • Defense Contract Management Agency • Defense Logistics Agency • NASA • (Each agency on the DARC is represented by two members: a policy member with the agency vote, and a non-voting legal advisor)

  9. Sources of FAR Changes Legislation IG & GAO Recommendations Court Decisions OFPP Policy Letters FAR Executive Orders Agency Recommendations Individual Recommendations Industry Recommendations Policy Changes (e.g., USD (AT&L), DPAP)

  10. When a FAR Change Is Received The Principals decide to: - Open the case - Not to open the case

  11. The Process • If opened, a case number is assigned. • Assigned at the staff level or to one of the standing teams, or an ad hoc team.

  12. The Process- What the Team Does • If assigned to a team, the team prepares a report including the Federal Register Notice (preamble) and FAR text. • The team also determines what type of rule it should be. • If assigned at the staff level, the case managers work the case together. • Once completed, the FAR case is ready to discuss at the Councils (CAAC and DARC).

  13. The Process - Types of FAR Rules • Proposed – does not make any change to the FAR, it is a proposed change. • Interim – the change is made in the FAR, but it can change based on comments; implementation of the change is based on the effective date. • Final – the FAR change is set and no further changes will occur without opening a new “case”.

  14. Proposed Rule - Factors To Consider • Factors to consider when recommending a proposed rule: • - The rule is not mandated by statute or Executive order. • - The new requirement is complex and requires subjective judgment to implement in the regulations, so that the Government expects substantial benefit from public comment before finalizing the rule. • - The rule will have significant cost or administrative impact on the public upon implementation.

  15. Interim Rule - Factors To Consider • Factors to consider when recommending a interim rule: • - There are urgent and compelling circumstances such that failure to implement may cause harm to the Government, industry, or the public, especially if there are urgent life or death or public health reasons or significant cost or administrative impact if implementation is delayed. • - A new statute, Executive order, or court decision mandates an effective date in a relatively short period of time. • - Implementation of the requirement is relatively straightforward and objective, with little room for judgment. • - It is otherwise in the best interest of the Government to implement immediately.

  16. Final Rule - Factors To Consider • A final rule may be issued without obtaining public comment if it affects only the internal operating procedures of the Government and has no significant cost or administrative impact on the public.

  17. The Process – Presenting the Case • Case manager prepares case with recommendation for the CAAC and submits to CAAC via CAAC Chair (GSA) . • Case manager presents an overview to CAAC about the case, and monitors the later discussion. • To achieve CAAC approval, the case manager works the comments from CAAC agencies and any legal comments provided at this time.

  18. The Process – Negotiating between the Case Manager and DARC Analyst • Case managers (CAAC) works with DARC analyst to resolve differences between the CAAC and DARC approved versions of the case. • The CAAC and DARC must agree on one version, which then goes for legal and OMB approval.

  19. The Process – Proposed and Interim Rules • Proposed and Interim Rules • The “review and approval” phase starts- CAAC Counsel- Office of General Counsel - Office of Federal Procurement Policy- Office of Information and Regulatory Affairs • FAR Staff Analyst prepares case for the Regulatory Secretariat for publication in the Federal Register requesting a 60 day public comment period.

  20. The Process – Public Comments are Received • Public comments received and resolved by the team or the analysts (CAAC and DARC). • If there are changes, the case is discussed again at the Councils. • If a simple noncontroversial case with no changes, there is no need to discuss but make the Councils aware that the case will be converted to final.

  21. The Process – Moving to a Final Rule • The “review and approval” phase starts again - CAAC Counsel (and Office of General Counsel)- Office of Federal Procurement Policy- Office of Information and Regulatory Affairs • Prepare case for the FAR Secretariat for publication in the Federal Register as a final rule. • The signatories (GSA, DoD and NASA) sign all final rules.

  22. FAR Secretariat Provides • Each group of published interim/final rules is a Federal Acquisition Circular (FAC). • Loose-leaf version of the FAR is updated and posted on website in HTML and PDF at http://www.acquisition.gov

  23. FAR Case Standard Timeline OFPP Review 4 weeks GSA Legal Review 4 weeks Team Report with Draft Proposed/InterimRule 8 weeks DARC/CAAC Review 8 weeks OIRA Clearance 4 weeks FAR Final Rule Published 16 months OIRA Clearance 4 weeks Public Comment Period (60 days) 9 weeks FAR Secretariat Publish Final in FAC 6 weeks DARC/CAAC Review 5 weeks Team Report with Disposition of Public Comments and Draft Final Rule 4 weeks FAR Secretariat Publish (Proposed/Interim(FAC)) 7 weeks GSA Legal Review 3 weeks OFPP Review 3 weeks

  24. Helpful Links • The FAR is located at www.acquisition.gov/far • FAR Analyst by Part is located at: http://www.gsa.gov/portal/content/102861 • DoD list of open/pending cases is located at: http://www.acq.osd.mil/dpap/dars/opencases/farcasenum/far.pdf

  25. Questions?

  26. Contact Information William Clark Acting Director Federal Acquisition Regulation Division Office of Governmentwide Policy William.clark@gsa.gov

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