The FAR rulemaking process ~ Post No. 050708-1

 

From the Desk of the 8-PAC Editor | in response to many inquires in regards to how the Federal Acquisition Regulation (FAR) Council goes about establishing its’ rule base; the following was obtained from the Office of the Chief Acquisition Officer, Contract Policy Division – and is the most recent process explanation.

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The FAR rulemaking process

The FAR Council is comprised of the Administrator of OFPP, the Director of Defense Procurement (DOD), the Chief Acquisition Officer of GSA, and the Associate Administrator for Procurement of NASA.  The Federal Acquisition Regulation (FAR) is required by 41 USC 421. GSA, DoD, and NASA jointly publish and maintain the FAR. 

The day to day work on the regulations starts at the FAR teams, followed by the Civilian Agency Acquisition Council (CAAC) and the Defense Acquisition Regulations Council (DARC).   The teams and the CAAC and DARC are responsible for resolving the public comments, developing FAR language and making recommendations to the FAR Council. 

The team members are from the various agencies that have membership on the DARC and CAAC.    Civilian agency representatives are on the CAAC, which is chaired by GSA.  The CAAC provides the civilian input to the FAR Council on rules.  The Defense Acquisition Regulations Council (DARC) provides defense agency input on rules.   

 A typical rulemaking for the FAR would contain these steps:

  • Legislation, Executive Order or change request. The U.S. Congress may pass a law or President sign an Executive Order that needs to be implemented in the Federal Acquisition Regulation.  The FAR may also be revised for other reasons such as change requests from other agencies or the public.
  • Proposed Rule or Interim Rule.  Depending on the circumstances, DOD/GSA/NASA may be required to publish for comments using a proposed rule or interim rule, before publishing a final rule.   The procedures and publication test for whether public comments are required for a procurement regulation are found in the Office of Federal Procurement Policy Act, at 41 U.S.C. 418b; the test essentially is whether the new rule will have a significant adverse effect on the public, including contractors.  This is different from other regulations’ public comment procedures, which are instead covered by the Administrative Procedures Act.   In this step, DOD/GSA/NASA publishes the regulatory language in the Federal Register with request for public comments.  There will also be either an Initial Regulatory Flexibility Analysis explaining the impact on small businesses, or a statement that DOD/GSA/NASA do not think there will be a significant impact.  An interim rule has an effective date when it is published; a proposed rule does not because it does not go into effect when published. 
  • Public comment period. Once a proposed rule or an interim rule is published in the Federal Register, a public comment period begins, allowing the public to submit written comments to the agency, through the “regulations.gov” website. The normal comment period is 60 days; each rule will give the due date for comments on it.  Public hearings are occasionally held, when the FAR Council believes it would be helpful for better understanding of the rule by the FAR Council and/or the public; at these hearings members of the public may give oral presentations, with the opportunity to answer any questions raised at the meeting by the FAR Council or their representatives.  Advance notice of proposed rulemakings is also occasionally published, for the same reason.
  • Final Rule. Usually, the proposed or interim rule becomes the final rule with some minor modifications. The DOD/GSA/NASA responses to the major issues raised by the public comments are published in the Federal Register along with any changes to the proposed or interim rule.   When public comments were not required, there will be no proposed or interim rule, just a final rule.
  • In some cases, DOD/GSA/NASA may publish a second proposed or interim rule, especially if the new version I s so different from the published rule that it raises new issues that have a significant adverse effect on the public (including contractors). 
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