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Competition in Contracting Act (CICA), the Federal Acquisition Regulation (FAR), Competition in Contracting Act (CICA), the Federal Acquisition Regulation (FAR),

Competition in Contracting Act (CICA), the Federal Acquisition Regulation (FAR), - PowerPoint Presentation

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Competition in Contracting Act (CICA), the Federal Acquisition Regulation (FAR), - PPT Presentation

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

gov rule federal rulemaking rule gov rulemaking federal www reginfo comment change process public acquisition agency final federalregister http

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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

Slide2

Instructor

NameAgency/OrganizationRoleContact InformationPhoneEmail Address2

Slide3

Classroom Safety & Procedures

Emergency ProceduresRestroom LocationClass EtiquetteCell PhonesBreaks

Distractions3

Slide4

Agenda

IntroductionFederal Rulemaking ProcessBREAKCICA Case StudyTools and ResourcesLUNCHGroup Project – Case StudyBREAKFederal Rulemaking Comment PreparationConclusion4

Slide5

Introduce Yourself!

NameJob TitleHome AgencyQuestion Response

5

Slide6

Objectives

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

Slide7

Materials

WorksheetsResource ListSource Materials (in class)7

Slide8

Federal Rulemaking Process

8

Slide9

Federal 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

Slide10

Stakeholders

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

Slide11

Federal Rulemaking Stakeholders

11

Slide12

Rulemaking 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

Slide13

Federal 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

Slide14

Types of Rules

Legislative Rule (Substantive)Non-Legislative Rule (Interpretative)Management and Procedural Rule14

Slide15

Collaborative Exercise

Select 9 sign holder volunteersWork as a classArrange the rulemaking process steps in the correct order

15

Slide16

Steps of Federal Rulemaking Process

16

http://

www.reginfo.gov/public/reginfo/Regmap/regmap2.jsp

Participant Workbook

Slide17

Initiating 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

Slide18

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

/

Slide19

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)

Slide20

OMB 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

Slide21

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

Slide22

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

Slide23

Preparation 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

Slide24

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

Slide25

Publication of Final Rule

Congressional ReviewFederal Register

Federal Acquisition Circular (FAC)25

http://

www.reginfo.gov/public/reginfo/Regmap/regmap9.jsp

Federal Acquisition Circular

Slide26

26

Please return

on time in 10 minutes

Slide27

CICA Case Study

27

CICA Case Study

Packet

Slide28

CICA 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

Slide29

Link 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

Slide30

Identify 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

Slide31

Pre-Rule Process Milestones

Abbreviated chronology of events leading to CICA:31

Slide32

Legislative Process Milestones

32

Slide33

Rulemaking Process Milestones

33

Slide34

People and Organization Sources

Personal knowledgeTeam knowledgeContracting, legal, training, etc.Assistance OrganizationsLibrary of CongressAgency FAR team connections34

Slide35

Research Sources

FAR Search FARSite, FAR Search Function, Word Search Stimulus Material SearchesLegislative, Policy, Legal, Technology DriversRulemaking SearchesContext Searches Social, Political, Economic, etc.35

Slide36

CICA 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

Slide37

Identify 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

Slide38

Example 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

Slide39

Tools and Resources

39

Federal Rulemaking Research Tool

Federal Rulemaking Resources List

Slide40

Rulemaking 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

Slide41

Federal 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

Slide42

Federal 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

Slide43

Your Role: Step One

Initiating EventIdentify an error or textIdentify inconsistency or incomplete coverageIdentify industry or technical changes 43

https://www.federalregister.gov

/

FederalRegister.gov

Slide44

Your Role: Step Two

Determining Whether a Rule is NeededUnlikely to have an active role in this step44

https://www.federalregister.gov

/

Slide45

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

/

Slide46

Your Role: Step Four

OMB ReviewUnlikely to have an active role in this step46

https://www.federalregister.gov

/

Slide47

Your Role: Step Five

Publication of Proposed RuleUnlikely to have an active role in this step47

https://www.federalregister.gov

/

Slide48

Your Role: Step Six

Public CommentsReview proposed rule Submit comment during the public comment request period48

https://www.federalregister.gov

/

FederalRegister.gov

Slide49

Your 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

/

Slide50

Your Role: Step Eight

OMB Review of Final RuleUnlikely to have an active role in this step50

https://www.federalregister.gov

/

Slide51

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)

Slide52

Resource 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

Slide53

53

Please return from lunch

on time

Slide54

Group Project –

Case Study TWO54

Slide55

Case Study Two

Case Study Two Packets

55

Slide56

56

Please return

on time in 10 minutes

Slide57

Case Study Two: Findings

Present your findingsEach team gets 5 minutes to present your findings.

57

Slide58

Case Study Two: Conclusion

Collaboration strengthens the processNetworking provides multiple perspectivesOverwhelming volumes of informationResearch tool guides the process58

Slide59

Comment Preparation

59

Slide60

Comment Preparation: Change Notice

Review a Case Study change notice:

60

https://www.federalregister.gov

/

FederalRegister.gov

Slide61

Comment Preparation: Exercise

Review the commentsDiscuss:Which are effective? What makes them effective?Which are not effective? Why

not?61

Slide62

Comment 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

Slide63

Comment Submission

Locate ruleSelect “Comment Now”Complete all required sections of the submissionAdd any supporting documentsPreviewWait for confirmation

63

Regulations.gov

Slide64

Comment Preparation: Education

The Acquisition Team’s EducationEducating yourselfEducating your customerEducating your staffMentoring

64

Slide65

Summary and Conclusion

65

Slide66

Wrap-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

Slide67

Initial 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

Slide68

Wrap-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

Slide69

Thank You!

Instructor NameAgency/OrganizationRoleContact InformationPhoneEmail AddressCICA, the FAR, and the Federal Rulemaking

Process69