37 Nash & Cibinic Rep. NL ¶ 30

Nash & Cibinic Report  |  April 2023

The Nash & Cibinic Report

Procurement Management

Ralph C. Nash

¶ 30. CHANGES TO REGULATIONS: Some Can Be Made Quickly

In Postscript VI: Late Electronic Bids and Proposals, 37 NCRNL ¶ 19, Vern suggested some changes to the Federal Acquisition Regulation that could be made as technical amendments rather than rule changes—obviating the need for the bureaucratic notice and comment requirements. The Department of Defense has just issued such a technical amendment to the Defense FAR Supplement at 88 Fed. Reg. 17354 (Mar. 22, 2023), allowing Procuring Contracting Officers to delegate the authority to settle incurred cost audits to the cognizant contract administration office. Its justification for avoiding the bureaucratic morass applicable to regulatory changes is instructive:

II. Publication of This Final Rule for Public Comment Is Not Required by Statute

The statute that applies to the publication of the FAR is 41 U.S.C.A. 1707, Publication of Proposed Regulations. Subsection (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it merely involves assignment among DoD agencies of an existing contract administrative function. This rule does not have a significant cost or administrative impact on contractors or offerors, and it does not have a significant effect beyond DoD’s internal operating procedures.

III. Applicability to Contracts at or Below the Simplified Acquisition Threshold, for Commercial Services, and for Commercial Products, Including Commercially Available Off-the-Shelf

This rule does not create any new solicitation provisions or contract clauses. It does not impact any existing solicitation provisions or contract clauses or prescriptions for their use.

1. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

V. Congressional Review Act

As required by the Congressional Review Act (5 U.S.C.A. 801–808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register. The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C.A. 804. VI. Regulatory Flexibility Act The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501–1, and 41

U.S.C.A. 1707 does not require publication for public comment.

VI. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501–1, and 41 U.S.C.A. 1707 does not require publication for public comment.

VII. Paperwork Reduction Act

This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C.A. chapter 35)

That list demonstrates one of the reasons it takes so long to promulgate a change to the regulations. It also shows that Congress has little faith in the ability of members of the Executive Branch to issue regulations impacting the public. Curiously, with procurement regulations, the public is almost always contractors and their trade associations. Rather than the notice and comment procedure, it would be far more efficient to bring them into the regulation writing process at the beginning rather than after the Government has worked out a proposed rule. But there seems to be no interest in making this process more efficient. That is why taking advantage of technical amendments is so important. RCN

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