Interview transcript:
Terry Gerton: When last we spoke, we were dealing with FAR Part 10, and you were encouraged about the information that was coming out and all of the different tools. The administration has continued to roll out bits and pieces of its FAR update. What are you seeing now?
Emily Murphy: So we’ve got four new FAR parts since the last time we spoke, which is a lot out there, but it does sort of feel like we’ve got a mosaic and we’re seeing one square of it at a time because it’s really hard to understand how it’s all going to fit together until you see the entire thing. So we’ve got now, for example, we now have market research and developing agency requirements, but we don’t have the information about simplified acquisition or commercial contracting or Part 15 contracting, all of which play in there. We don’t the small business section yet, which isn’t a criticism, it’s just one of those that makes it a little bit more difficult to understand how everything is going to fit together, what the ultimate regulatory scheme is going to look like. We also, and again, this isn’t a criticism, we’ve got a lot of other information coming. So we’ve got that practitioner album, and we’ve gotten it for each of the new sections that came out. And it is a wealth of information. It gives you case studies and best practices and line outs and all sorts of just incredible information, whether you’re a contracting officer or you’re a contractor, it’s really great information. But then it also says, coming soon, and it tells you you’ve got a buying guide that’s going to come along and that you’ve got a supplement that’s going to be a companion guide, it’s what they’re calling it, a FAR companion guide that’s going to coming. And so the question becomes, all right, what are those going to add, subtract, change? How are they going to sort of shift our understanding of what we’ve gotten so far? And is it going to be meaningful and substantial or is it just going to be an augmentation?
Terry Gerton: Given the naturally conservative culture around acquisition and contracting, would you expect that current federal contracting officers are moving out to make changes or are they going to sit back and wait for more of this information to come out?
Emily Murphy: I think that they’re more likely to wait and see. Now, it’s telling that if you look at each of the new parts that have come out, GSA has already issued the deviation and implemented those or said that they will be implemented. For many of the others, there haven’t been a lot of deviations. So Part 10, we’ve talked about a month ago, I think only the Department of Commerce is the only other agency that’s put out a deviation. So other agencies seem to be taking a more measured wait-and-see approach to this. Now, it’s already a 30-day implementation scheme as it is, so that’s not a horribly-delayed implementation. And maybe it’s being used to address workforce concerns, maybe it’s being because of, frankly, the workload that they’ve got right now. But as we go into the fourth quarter of the fiscal year, and we’ve got less than 100 days to go in this fiscal year, how are contracting officers going to adapt to these changes with so little time left in the year?
Terry Gerton: See, I think that’s a really great question, and we’re not seeing a lot of GSA messaging around that, even as they are trying to consolidate acquisition functions in GSA and maybe drive year-end procurement actions. Are you thinking that that’s how they’re going to get around this?
Emily Murphy: Well, I think that there are a couple of things to look at with that. First of all, year-end procurement tends to, it’s not that the requirement doesn’t show up until the very end of the year. So some of the work, the Part 10, the Part 11 work, probably has already been done on a lot of these procurements. Not all of them, but a lot of them. Additionally, GSA, at least it was suggested by the executive orders on consolidation, was planning a reorganization to adapt to this. And then we’ve had injunctions from the courts that have stopped that reorganization, not directed specifically at GSA, but looking at the executive branch. So we then have a challenge for the agencies. How do they start implementing this new way of doing business if they can’t reorganize to do it? And so GSA in particular, looking at the fourth quarter, isn’t able to move people around necessarily in the way that they might want to or to set up their central contracting office that they indicated. There was a story in federal news network a couple weeks ago talking about that. So their ability to do that, they’re stuck in the planning stage. I’m sure they’re making good use that planning stage, but they’re a little bit stuck treading water at this point in time. We can’t really see what the next step is going to be.
Terry Gerton: I’m speaking with Emily Murphy. She’s a senior fellow at the George Mason University Barone Center for Government Contracting and former GSA administrator. Well, Emily, let’s dig into a couple of the changes that have just come out in the FAR. FAR Part 11, the requirements section. What is new and remarkable there?
Emily Murphy: So I think the focus there is unsurprisingly on commercial solutions. But there’s a lot more emphasis on team-based approach to developing requirements. A lot more collaboration. So there are conversations about not just publishing draft statements of work, but they give us one of the best practices in the practitioner album, actually sitting down with industry and coming up with a draft statement of objectives together to go through and really understanding what the opportunities are working with industry and having a lot of collaboration. The other interesting thing is that there seems to be a sort of a step back against the brand name or equal. And in the past, and currently still, a brand name, you can’t just specify a brand name for a product, unless you’re going to go and get a sole source waiver. You get some sort of additional level of approval that says that this is really necessary for the government to do this. But if you go back to the Bush administration, there was a lot of push at that point in time to say, ‘OK, you just can’t say brand name or equal,’ because everyone reads that to mean brand name. And so it led to a lot of sort of contortions around the way where agencies knew that they had a brand-name type of specification they were looking for, but they would then come up with all different ways of describing it. The new version that came out just last week suggests that instead what we want to look at is they’re saying it’s OK to say brand name or equal as long as you explain what it is about the brand name and what it would mean to be equal. And it seems to be a much more commercially relevant way of doing things, as long as it doesn’t just become a shortcut for saying, ‘We just mean the brand name.’ So it’s going to be interesting to see how that plays out in implementation and what the risk tolerance is going to be around that.
Terry Gerton: We were talking about the procurement culture a little bit earlier. This shift to a more collaborative approach with industry as opposed to an adversarial approach, is that going to be a hard cultural hurdle to get over?
Emily Murphy: I think that people are going to be very nervous about making sure that they don’t share information that shouldn’t be shared. One company doesn’t get a competitive advantage because they were more involved than another or an unfair competitive advantage, I should say. That said, the idea of bringing industry in earlier in the process and we saw that both in the idea in Part 10 and the rewrite there, where we were looking at how do you do market research and so it was encouraging a lot more engagement with industry and then now we’re seeing it in Part 11, which is on how you develop the agency’s requirements and so it seems to be a pretty consistent message that’s showing up and it seems to be pushing a lot of risk tolerance onto the contracting officers.
Terry Gerton: Well, it seems like that shift in FAR Part 10 and now 11 feeds into a FAR Part 39, which deals a lot with IT where there’s been a lot of talk about going commercial.
Emily Murphy: And there continues to be. And if you look at Part 39, there is a lot of redlining that took place in Part 39. So lots of things that came out. The question then becomes, how much of it really is going to stay out? So you look at Part 39 and a lot of the things that came out were things like references to NIST standards or references to federate, things along those, which when you then read some of the additional guidance and other things that are happening, it suggests that maybe those aren’t going to stay out, that they might not be in the regulation itself, but maybe they’ll be in some sort of companion or in some buying guide because FedRAMP’s not going away. They’ve got the FedRAMP 20x challenge going on right now to try and speed FedRAMP up and improve it, but the government’s still going to have an interest in maintaining those standards. So Part 39, I will say that in reading just through the red line itself, it’s not very clear what is coming. You have to really go into those smart accelerators and into the practitioner’s perspective to understand what it is that GSA and the FAR Council and OFPP are really trying to accomplish and they’re trying to move faster. They’re trying to get commercial systems and they are trying to avoid vendor lock by really going to a modular approach. And that’s what really comes out loud and clear in Part 39 once you start reading all of the supplemental information.
Terry Gerton: So in the short run, how do the contracting officers and the contractors adjust to this new information? Wait and see, move out, find some happy medium.
Emily Murphy: I would be doing as much reading on this as you can right now. There’s also in each and every one of the new FAR parts, there’s the ability to submit comments. I would strongly encourage people to do that. It’s not going through the old regulations.gov website, it’s going through the acquisition.gov website to submit those comments. So giving perspective. It doesn’t have to be in the same formal way that it was before. But if there’s something that’s missing or something that needs to be addressed, this is their chance to share that and whether it means a change in the underlying regulation or additional information coming out in terms of those buying guides or practitioner albums or supplemental or companions, things along those lines. It’s worth making sure that everyone working on the project has access to those comments. So that’s my first thing I would suggest. But I would also say that this is a very clear indicator of where the administration wants to go. It may not be fully effective by the end of this fiscal year, but it’s certainly going to be full swing next fiscal year. So as companies and agencies are planning their workload for next year, this is something that they really should be looking at and exploring. One thing I found very interesting also was the endorsement of the Market Research As a Service at GSA and that’s a great opportunity to highlight that’s something GSA does really very, very well, bringing those together. But we’re not going to know a lot about what that how market research and developing requirements and everything else plays out until we know about how what FAR Part 8 is going to look like and Part 19 are going to looks like. So we need to know what those two are so we know how are we going to address mandatory sources of supply and services and how are we going to apply small business set-asides or other programs in this. Otherwise, it’s going to be pretty challenging.
The post There are more new updates to the FAR — how do they all fit together? first appeared on Federal News Network.