and the Federal Rulemaking Process Release 10 1 Welcome As you get settled please respond to the question located on your course agenda handout Instructor Name AgencyOrganization Role Contact Information ID: 803683
Download The PPT/PDF document "Competition in Contracting Act (CICA), t..." is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
Competition in Contracting Act (CICA), the Federal Acquisition Regulation (FAR),
and the Federal Rulemaking Process
Release 1.0
1
Welcome!
As you get settled,
please respond to the question located on your course agenda handout
Slide2Instructor
NameAgency/OrganizationRoleContact InformationPhoneEmail Address2
Slide3Classroom Safety & Procedures
Emergency ProceduresRestroom LocationClass EtiquetteCell PhonesBreaks
Distractions3
Slide4Agenda
IntroductionFederal Rulemaking ProcessBREAKCICA Case StudyTools and ResourcesLUNCHGroup Project – Case StudyBREAKFederal Rulemaking Comment PreparationConclusion4
Slide5Introduce Yourself!
NameJob TitleHome AgencyQuestion Response
5
Slide6Objectives
Describe the federal rulemaking processExplain the rolesDescribe how to be involved Research and obtain results from various sourcesSynthesize results for well-advised explanation Identify tradeoffs, compromises, and stakeholder influence Propose language or changes to the FAR6
Slide7Materials
WorksheetsResource ListSource Materials (in class)7
Slide8Federal Rulemaking Process
8
Slide9Federal Acquisition Regulatory (FAR) Council
Manages, Coordinates, Controls, and Monitors the maintenance and issuance of changes in the FAR9
https://www.whitehouse.gov/omb/procurement_far_council
Slide10Stakeholders
A stakeholder could be:
Stakeholder engagement is key to the rulemaking process
A Government agency/ Government entity
An industry representative
A contractor
A private citizen
Slide11Federal Rulemaking Stakeholders
11
Slide12Rulemaking Definitions
Rule the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency Code of Federal Regulations (CFR) the codification of the general and permanent rules and regulations
12
Slide13Federal Acquisition Regulation
The regulation for Government acquisitionThe Rulebook, not an instructional guideInitially promulgated, and subsequently amended, following rulemaking proceduresAgency regulations implement and supplement the FAR13
Slide14Types of Rules
Legislative Rule (Substantive)Non-Legislative Rule (Interpretative)Management and Procedural Rule14
Slide15Collaborative Exercise
Select 9 sign holder volunteersWork as a classArrange the rulemaking process steps in the correct order
15
Slide16Steps of Federal Rulemaking Process
16
http://
www.reginfo.gov/public/reginfo/Regmap/regmap2.jsp
Participant Workbook
Slide17Initiating Event
Agency initiativeAgency priorities and plansNew technology or scientific dataAccidentsRequired reviewStatutory mandatesLawsuits
Recommendations, external groups/ agencies, states, federal advisory committeesPetitionsOffice of Management and Budget (OMB) initiatives
17
http://
www.reginfo.gov/public/reginfo/Regmap/regmap1.jsp
Determination Whether a Rule is Needed
Administrative Procedure Act Provisions (APA)The Act provides a measure of transparency for the federal rulemaking process.Depending on the initiating event:The FAR Council may
determine the need exists, and publish a new rule or a change to an existing rule and invite commentsThe proposed rule need not be developed beyond a concept
before comments and suggestions may be invited to help define the scope or textPre-rule processes could take place where interested parties could negotiate a Rule/Change proposal and comment invitation to be published
In rare instances a rule/change might be published without comment
18
http://
www.reginfo.gov/public/reginfo/Regmap/regmap2.jsp
http://www.archives.gov/federal-register/laws/administrative-procedure
/
Preparation of Proposed Rule
19
*5 U.S.C. 553
http
://
www.reginfo.gov/public/reginfo/Regmap/regmap3.jsp
http://
www.archives.gov/federal-register/laws/administrative-procedure
Under APA provisions, rules may be established only after proposed rulemaking procedures (steps three through six) have been followed, unless an
exemption*
applies
.
Proposed
Rule:
a notice of
rulemaking to add, change
or delete regulatory text and contains a request for public comment.
Who
–
FAR Council
How
–
Individual
or
g
roup
effort, agency
collaboration
When –
After
legislation
is finalized, upon
organization
or committee recommendation, as prompted by OMB or Congress
Where –
Determined
by the initiating agency or
entity (Federal Register – www.federalregister.gov)
Slide20OMB Review of Rule
Office of Management and Budget (OMB) Review Under Executive Order 12866 OMB reviews only those rulemaking actions determined to be "significant." 20
http://
www.reginfo.gov/public/reginfo/Regmap/regmap4.jsp
http://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp
Publication of Proposed Rule
Administrative Procedure Act (APA) ProvisionsUnder the Act proposed rules are required to be published in the Federal Register. Substantive rules of general applicabilityInterpretive rulesStatements of general policy
Rules of procedureInformation about formsInformation concerning agency organization and method of operation
21
http://
www.reginfo.gov/public/reginfo/Regmap/regmap5.jsp
Public Comment
APA provisions, give the public an opportunity to submit written commentsPublic LawElectronic comment
submissionOnline access to comments and rulemaking materials
Executive Order 12866 60
days standard comment periodDiscretionary public hearing unless required by statute or agency policy
Comments
Implementation
comments are typical
Substantive
issues are
addressed in
the legislative
process
22
http://
www.reginfo.gov/public/reginfo/Regmap/regmap6.jsp
Regulations.gov
Slide23Preparation of Final Rule
Final RuleAdds, changes, deletes, or affirms regulatory textSpecial Types of Final Rules:Interim Final RuleAdds, changes, or deletes regulatory text
and contains a request for comments. The subsequent final rule may make changes to the text of the interim final rule.Direct Final RuleA direct final rule adds, changes, or deletes regulatory text at a specified future time, with a duty to withdraw the rule if the agency receives adverse comments within the period specified by the agency.
23
http://
www.reginfo.gov/public/reginfo/Regmap/regmap7.jsp
OMB Review of Rule
Executive Order 12866 – OMB reviews rulemaking actions24
http://
www.reginfo.gov/public/reginfo/Regmap/regmap8.jsp
http://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp
Reginfo.gov
Slide25Publication of Final Rule
Congressional ReviewFederal Register
Federal Acquisition Circular (FAC)25
http://
www.reginfo.gov/public/reginfo/Regmap/regmap9.jsp
Federal Acquisition Circular
Slide2626
Please return
on time in 10 minutes
Slide27CICA Case Study
27
CICA Case Study
Packet
Slide28CICA Case Study Goals
Formulate response to customer’s question “Why do we have to compete?”Link question to CICAIdentify CICA textIdentify pre-rule process
milestonesIdentify rulemaking process milestones
Identify research sourcesIdentify stakeholders
Identify issuesIdentify compromises/trade-offs
28
Slide29Link the Question to CICA
The steps to connecting the customer's question to the FAR may include referencing the FAR Part and Subparts, Federal Register, and/or rule stimulus (i.e. law, policy, technology change such as CICA).Have you conducted this type of research? If so, how did you start?
29
Slide30Identify the CICA Text
Link to CICA text can be found on Federal Rulemaking Resources List Government Printing Office (GPO) 41 CFR – Competition in Contracting Act of 198430
Slide31Pre-Rule Process Milestones
Abbreviated chronology of events leading to CICA:31
Slide32Legislative Process Milestones
32
Slide33Rulemaking Process Milestones
33
Slide34People and Organization Sources
Personal knowledgeTeam knowledgeContracting, legal, training, etc.Assistance OrganizationsLibrary of CongressAgency FAR team connections34
Slide35Research Sources
FAR Search FARSite, FAR Search Function, Word Search Stimulus Material SearchesLegislative, Policy, Legal, Technology DriversRulemaking SearchesContext Searches Social, Political, Economic, etc.35
Slide36CICA Rulemaking Stakeholders
Taxpayers/VotersCongress Legislative GAOJudicial Branch
Executive BranchOFPP
Agencies
ArmyNavy
DLA
GSA
DOT
Non-Government
Defense Industrial Complex
Defense Contractors
Small Business Contractors
Acquisition Community
NCMA
Government Acquisition Staffs
COs and Contract Specialist
PMs (listed as engineering in the
thesis
)
36
Slide37Identify Challenges
Executive and Judicial Branch division of powersTransparency slows the processCooperative monopoly (Department of Defense and industry)ImplementationBuy-in
Competitive range more difficult and increases potential for protest
Technical data packages
Lifecycle management
Procurement
a
ction
l
ead time
(PALT)
Professional
a
cquisition workforce
Competition
for
competition’s
s
ake
Bid protest
Legislative
management
Conflicting
Congressional
mandates
37
Slide38Example CICA Compromisesor Trade-offs
Legislative Justifications and Approvals (J&As) required by CO’sSimplified procedures established for diminishing returns Agency heads determine when an exception is to the benefit of the GovernmentRulemaking Full and o
pen competition instead of maximum competitionFull and open competition after e
xclusion of sources detailedSet asides for
small business concerns detailedSet asides for
disasters
and
emergencies (Stafford Act)
38
Slide39Tools and Resources
39
Federal Rulemaking Research Tool
Federal Rulemaking Resources List
Slide40Rulemaking Tools and Resources Purpose
Acquisition workforce enlightenment (Market Intelligence for Acquisition Rules)Proposed rule/change process (if involved )Proposed rule/change comment preparation
Final rule/change enlightenmentAgency/Organization implementationAgency FAR
supplement change
Facilitate informed articulation of answers to customers questions.
40
Slide41Federal Rulemaking Research Tool
PurposeUse as a job aidProvides questions to guide your inquiryKey ComponentsWhat is the stimulus for the rule/change
?Who are the stakeholders for the rule/change?What is the context
of the rule/change?What are the issues represented by the comments on the
rule/ change proposal?What are the related compromises and/or trade-offs surrounding the rule/change?
What
is the outcome/impact of the change
?
41
Slide42Federal Rulemaking Resources List
PurposeInitial set of links to start researchCustomize as you become more familiarCategoriesRulemaking LinksCongressional LinksRule/Change Proposals and Comments
Review of Historical ContextOverview of Federal Procurement Process and Resources42
Slide43Your Role: Step One
Initiating EventIdentify an error or textIdentify inconsistency or incomplete coverageIdentify industry or technical changes 43
https://www.federalregister.gov
/
FederalRegister.gov
Slide44Your Role: Step Two
Determining Whether a Rule is NeededUnlikely to have an active role in this step44
https://www.federalregister.gov
/
Your Role: Step Three
Preparation of Proposed RuleServe as a subject matter expert (SME)Identify niche market variantsIdentify Contracting Product Line interest
(construction, services, Simplified Acquisition Procedures (SAP), research)
45
https://www.federalregister.gov
/
Your Role: Step Four
OMB ReviewUnlikely to have an active role in this step46
https://www.federalregister.gov
/
Your Role: Step Five
Publication of Proposed RuleUnlikely to have an active role in this step47
https://www.federalregister.gov
/
Your Role: Step Six
Public CommentsReview proposed rule Submit comment during the public comment request period48
https://www.federalregister.gov
/
FederalRegister.gov
Slide49Your Role: Step Seven
Preparation of Final Rule, Interim Rule, or Direct Final RuleUnlikely to have an active role in this step, unless a FAR committee member or agency sponsor team member
49
https://www.federalregister.gov
/
Your Role: Step Eight
OMB Review of Final RuleUnlikely to have an active role in this step50
https://www.federalregister.gov
/
Your Role: Step Nine
Publication of Final RuleReview final rule textResearch discussion and background
Research comment responseLook for FAC for incorporation into the acquisition process
Explore agency supplement or guidance alignment requirementsInitiate agency change, as appropriate
51
https://www.federalregister.gov
/
FederalRegister.gov
Federal Acquisition Circulars (FAC)
Slide52Resource List
Acquisition RulesFAR sitesFederal RegisterCurrent siteHistorical archivesAgency acquisition noticesAgency policyOther resources
Legal databasesLegal archives
Resource Organizations Mentors / Teaming
Community of practiceAcquisition partnerships Finance, l
ogistics
, etc.
Combined
organizational
training efforts
52
Historical
Context Research Topics
Political
Social
Economic
News
Slide5353
Please return from lunch
on time
Slide54Group Project –
Case Study TWO54
Slide55Case Study Two
Case Study Two Packets
55
Slide5656
Please return
on time in 10 minutes
Slide57Case Study Two: Findings
Present your findingsEach team gets 5 minutes to present your findings.
57
Slide58Case Study Two: Conclusion
Collaboration strengthens the processNetworking provides multiple perspectivesOverwhelming volumes of informationResearch tool guides the process58
Slide59Comment Preparation
59
Slide60Comment Preparation: Change Notice
Review a Case Study change notice:
60
https://www.federalregister.gov
/
FederalRegister.gov
Slide61Comment Preparation: Exercise
Review the commentsDiscuss:Which are effective? What makes them effective?Which are not effective? Why
not?61
Slide62Comment Preparation: Best Practices
Read and understand the regulatory document Reach out to the agency with questionsBe concise and support your claimsBase your justification on sound reasoning, evidence-based facts, and/or how you will be
impactedAddress trade-offs and opposing viewsThere is no minimum or maximum
length for an effective commentThe comment process is not a vote
62
https://
www.regulations.gov/docs/Tips_For_Submitting_Effective_Comments.pdf
Comment Submission
Locate ruleSelect “Comment Now”Complete all required sections of the submissionAdd any supporting documentsPreviewWait for confirmation
63
Regulations.gov
Slide64Comment Preparation: Education
The Acquisition Team’s EducationEducating yourselfEducating your customerEducating your staffMentoring
64
Slide65Summary and Conclusion
65
Slide66Wrap-Up
In this course, we covered:Describing the federal rulemaking processExplaining the rolesDescribing how to be involved
Researching and obtaining results from various sourcesSynthesizing
results for well-advised explanation Identifying tradeoffs, compromises, and stakeholder influence
Proposing language or changes to the FAR
Slide67Initial Question
When a customer asks, “Why do we have to compete an acquisition when Vendor X is the clear choice?” How do you answer?67
Slide68Wrap-Up: Follow On Training
Share what you learned! Mentor: teach your peers, subordinates, and customers about the rulemaking process
Distribute: disseminate the Federal Rulemaking Research Tool to help everyone understand the process
Slide69Thank You!
Instructor NameAgency/OrganizationRoleContact InformationPhoneEmail AddressCICA, the FAR, and the Federal Rulemaking
Process69