On August 23rd the Office of Management and Budget announced the final agency and department plans for the review and streamlining of regulations. The plans are the result of Executive Order 13563, Improving Regulation and Regulatory Review, which directed the review and analysis of regulations that may be outdated, ineffective, and burdensome and to modify, streamline, expand or repeal them based on what is learned through the review process. The Coalition supports this important effort.
The Federal Acquisition Regulatory Council’s (FAR Council) review plan includes eight “Newly Proposed & Ongoing Look back Initiatives” to improve current regulations and the rule making process. This Comment highlights two of those initiatives.
First, the FAR Council will re-examine the “process for applying new regulatory requirements to commercial item acquisitions & small (simplified) purchases.” As the FAR Council plan notes, the OFPP Act exempts commercial item contracts and small purchases from the application of new laws unless: (1) the new law provides for criminal or civil penalties; (2) the new law states that it is applicable to commercial item contracts and/or small purchases; or (3) the FAR Council makes a written determination that it would not be in the best interests of the Federal Government to exempt commercial item contracts or small purchases from the new law. The policy goal of the statute is to increase competition and access to the federal marketplace by reducing barriers created by the application of government-unique requirements to commercial products and services.
Unfortunately, the current FAR Council determination process regarding the applicability of new laws to commercial item contracts is less than clear. Moreover, over the last decade it seems as if a presumption has developed that commercial item exemptions from new laws are not in the interest of the Federal Government. As such, a review of the process is timely. It has the potential to lead to more effective and efficient access to commercial products and services for the Government and greater opportunity for commercial firms. As a follow up to this initiative, the Coalition strongly supports a review of current laws applicable to the commercial item contracts to remove overly burdensome government-unique requirements that increase costs and create barriers to entry into the Federal marketplace.
Second, the FAR Council will “clarify rules addressing the use of competition for blanket purchase agreements” found in FAR 8.405-3. The current FAR 8.405-3 governing FSS BPAs was issued as a interim rule on March 16, 2011. As the plan notes, this initiative provides opportunities for improved economy and efficiency—which would be great for the taxpayer, Government and industry. On May 16, 2011, the Coalition submitted comments on the current FAR 8.405-3 BPA procedures and looks forward to further public engagement regarding potential improvements to FAR 8.405-3.