Who Is the FAR Council and Why Are They So Slow?

By Ann Sullivan

A letter from the Chair and Ranking Member of the House Small Business Committee recently came to my attention urging the Federal Acquisition Regulation (FAR) Council to adopt changes made by law in 2013. And I thought Congress was slow. 

Who is this Council? According to the law, the FAR Council membership consists of: the Administrator for Federal Procurement Policy and — (A) the Secretary of Defense, (B) the Administrator of National Aeronautics and Space; and (C) the Administrator of General Services. Now, admittedly these are busy people. Maybe they just don’t have time. However, upon further investigation, these very busy people have representatives for various sections of the FAR. They are called FAR Teams.

For example, in 2007, the Federal Acquisition Regulatory Council established a Federal Acquisition Regulation (FAR) Small Business Team. The purpose of this Team is to focus on small business issues and to coordinate with the Small Business Administration (SBA) on concurrent SBA and FAR rulemaking. So, even with a team devoted to small business, there is still a backlog on adoption of small business changes dating back as long as six years. 

As background, the government implemented the FAR in 1984, looking to create a single, governmentwide procurement regulation. Any amendments proposed and announced by the Department of Defense (DOD), the General Services Administration (GSA), and the National Air and Space Administration (NASA) need the concurrence of the FAR Council established at the same time. The FAR is massive and has 53 sections. Just in case you were wondering, the small business portion is contained in FAR Part 19.

The process of changing a law or putting in place a new one is lengthy. The FAR Council uses the same process as any other agency to amend the FAR, which includes: the publication of a proposed rule in the Federal Register; the opportunity for interested persons to submit comments on the proposed rule; publication of a final rule that includes a “concise general statement” of the “basis and purpose” of the rule; and a 30-day waiting period after the final rule is published in the Federal Register before the rule can take effect. Other agencies get involved in this process as well, such as a review from the Office of Management and Budget (OMB) or the Office of Information and Regulatory Affairs (OIRA), for example. Then, finally, it goes to the FAR Council for adoption. In my experience, a speedy regulatory process is six to nine months. Years can slip away as everyone involved in the process concludes their work. 

A look at the FAR Council website reveals 12 pages of open cases, some of which involve the small business changes the House Committee letter is seeking. The good news is that the force of law does not necessarily have to depend on this years-long process. Sometimes the FAR “conforms” to regulations issued by the agency, such as changes to the Small Business Act. Contracting officers do not always have to wait on FAR Council actions before implementing a change in the law because agency rules generally have the force of law; however, they do not realize this. For example, this certainly happened with respect to WIPP’s push to implement sole source for the WOSB procurement program. A contracting officer told women contractors that the FAR had to be amended before they would consider issuing sole sources. 

Agencies can also be compelled to take action in certain circumstances if they have “unreasonably delayed.” That was certainly the case with the WOSB procurement program (unless passage of a law in 2000 and implementation 11 years later does not seem unreasonably delayed).

So, why is the FAR Council so slow? Because the process to amend the FAR goes through an extra level of interagency review. Even though Congress passed a law and agencies produced a rule to implement the law, the FAR amendment process basically goes through the review process all over again. I don’t know about you, but it seems like this process could be streamlined. Of course, I am looking at this through private sector eyes, not the eyes of a federal agency. Given this Administration’s focus on streamlining federal processes, it seems to me that this might be a good place to start.