Publication of Agency Procurement Regulations

1
Publication of Agency Procurement Regulations

• Karen L. Manos
• Acquisition Reform Experimental Processes
  Committee
• November 30, 2004

2
Overview

• ABA White Paper
• Legal Requirements
• Publication for Public Comment
• Publication for Public Guidance or Information
• Agency Practices
• Department of Defense (DoD)
• National Aeronautics Space Administration
  (NASA)
• General Services Administration (GSA)
• Department of Veterans Affairs (VA)

3
ABA White Paper

• Spring Council Meeting Discussion of agencies
  trend to transfer procurement regulations from
  Code of Federal Regulations to non-regulatory
  guidance manuals
• No government-wide opportunity for comment on
  trend
• Task force appointed to study the issue and
  prepare white paper for agencies consideration
• Annual Meeting White paper presented
  Publication of Agency Procurement Procedures,
  Policies, and Guidance
• www.abanet.org/contract/operations/memberinfo/home
  .html

4
Legal Requirements

• Two separate and distinct requirements
• Office of Federal Procurement Policy Act (OFPPA),
  41 U.S.C. 418b, requires publication for public
  comment
• Freedom of Information Act (FOIA), 5 U.S.C.
  552, requires publication for public guidance or
  information
• Administrative Procedure Act (APA), 5 U.S.C.
  553, not applicable to procurement policies,
  regulations or procedures.

5
Publication for Public Comment

• OFPPA requires publication for public comment of
  any procurement policy, regulation, procedure or
  form that has either
• A significant effect beyond the internal
  operating procedures of the issuing agency, or
• A significant cost or administrative impact on
  contractors or offerors

6
OFPPA v. APA

• OFPPA is broader in coverage than the APA
• APA applies to substantive or
  legislative-type rules, but not interpretative
  rules, general statements of policy, or rules of
  agency organization, procedure, or practice
• OFPPA applies to both, provided there is a
  significant effect outside agency or significant
  cost or administrative impact
• OFPPA is less procedurally burdensome on agency
• Congressional emphasis on timely and effective
  solicitation of the viewpoints of all interested
  parties on policies and regulations of general
  application

7
Rulemaking Requirements

• Agencys failure to comply with rulemaking
  requirements renders rule invalid and
  unenforceable
• Few cases have analyzed circumstances under which
  OFPPA rulemaking requirements apply
• Court of Federal Claims jet fuel cases have
  held that class deviations are subject to OFPPA
  rulemaking requirements
• E.g., Tesoro Hawaii Corp. v. United States, 58
  Fed. Cl. 65, 72 (2003).

8
Publication w/o Public Comment

• FOIA requires agencies to publish in Federal
  Register
• Rules of procedure, descriptions of forms, and
  instructions as to scope and contents of papers
• Substantive rules of general applicability
• Amendments, revisions or repeals of the above
• FOIA requires agencies to make available
  electronically
• Statements of agency policy and interpretations
  that have not been published in the Federal
  Register
• Administrative staff manuals and instructions to
  staff that affect a member of the public

9
Case Studies

• DFARS Transformation Initiative
• NASA FAR Supplement
• GSA Acquisition Manual
• VA Handbooks and Information Letters

10
DFARS Transformation

• Moving policies, procedures and guidance from
  DFARS to companion resource, Procedures,
  Guidance and Information (PGI)
• Rulemaking states correct legal test
• Notice of Proposed Rulemaking, 69 Fed. Reg. 8145
  (2/23/04)
• Final Rule, 69 Fed. Reg. 63326 (11/1/04)
• Wait and see on application
• PGI now available electronically at
  www.acq.osd.mil/dpap/dars/index.htm
• Resolves concerns re availability and ease of use

11
NASA FAR Supplement

• Removing internal procedures and guidance from
  CFR
• Material will still be available electronically
  in single, integrated NFS
• www.hq.nasa.gov/office/procurement/regs/nfstoc.htm
  
• Series of rulemaking publications
• First Proposed Rule, 68 Fed. Reg. 64847
  (11/17/03)
• Last Final Rule, 69 Fed. Reg. 44609 (7/27/04)
• Concern with NASAs interpretation of what does
  not require publication for public comment (e.g.,
  requirement to maintain copies of unsuccessful
  offers)

12
GSA Acquisition Manual

• GSAM is not available for public comment, but it
  incorporates GSA Acquisition Regulations (GSAR)
  and internal policies into one document
• GSAM is available electronically
• Well indexed, GSAR materials are shaded, and
  changes are noted
• Appears to comply with publication-for-comment
  test
• Federal Supply Schedule (FSS) Program
• At least 16 mandatory FSS clauses were not
  published for public comment and are not in GSAM
  or readily accessible
• FSS internal policies are not included in GSAM

13
VA Handbooks Info Letters

• VA website has link to VAs acquisition policies
  and regulations
• VA also posts Directives, Handbooks, and
  Information Letters
• No statement of criteria for publication and use
  is inconsistent
• Not well indexed
• VA rules implementing special procurement
  statutes are not published and are difficult to
  locate
• E.g., Veterans Health Care Act administered
  through unpublished Master Agreement and letters
  to contractors

14
Conclusion

• Agencies generally are complying with OFPPA
  requirements
• Important to look beyond the title of the
  provision and evaluate its substance
• Some agencies are not doing as well complying
  with FOIA publication requirements
• NASA and GSA have adopted particularly useful,
  transparent and publicly-accessible approach
• DoDs new PGI website adopts similar approach

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Questions?Karen Manos(202)
383-7472manosk_at_howrey.com