OFPP's Gordon not stymied by bumps in the road to acquisition reform

Wednesday - 7/20/2011, 7:29am EDT

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By Jason Miller
Executive Editor
Federal News Radio

When several industry associations protested the increased use of interim rules to change the Federal Acquisition Regulations, Dan Gordon listened.

The administrator of the Office of Federal Procurement Policy, who is known by vendors, Hill staffers and agency acquisition professionals for his calm demeanor and thoughtful actions, is changing how the FAR Council uses these interim rules instead of proposed rules.

"I appreciate the temptation to use interim rules, but I think the concerns that have been raised are legitimate concerns and I've told my colleagues on the FAR Council and in other agencies, we need to take a hard look every time that we are considering an interim rule to be sure we are not doing it in any automatic way, in any mechanical way," Gordon said during an exclusive interview with Federal News Radio in his White House office. "We need to be persuaded it's absolutely justified in this particular case. Not only that, when we do issue an interim rule, I don't want us to have a situation where we issue a final rule that is essentially the same thing and we weren't really considering comments. If we issue an interim rule, people get to comment and those comments are taken seriously."

Over the last 18 months, the administration has made changes to the FAR through interim rules too often, said industry officials.

"We believe that the ever increasing reliance on the use of interim rules violates the spirit of the Office of Federal Procurement Policy Act, at a minimum, and misuses the 'urgent and compelling' exception to the standard notice and comment process outlined in the FAR," wrote six industry associations in a June 9 letter to Gordon.

The last straw for many in industry was the May 31 interim rule requiring that 95 percent of new contract actions (including those for construction) contain requirements for products that are designated as energy-efficient, water-efficient, biobased, environmentally preferable, non-ozone depleting, or those that contain recovered materials.

The FAR Council is accepting comments on the interim rule through Aug. 1, but the effective date was immediate.

"We feel that this practice is an unnecessary deviation from the required regulatory promulgation process and is contradictory to this administration's commitment to transparency, openness and public engagement," the letter stated. "While we can appreciate the desire to complete action on this rule, there is no urgency to implementing this regulatory action and, in fact, the administration has repeatedly assured the supplier community that this initiative would be implemented using a phased approach - not an immediately effective acquisition requirement."

Trey Hodgkins, TechAmerica's senior vice president for national security and procurement policy, told the Federal Drive they haven't gotten a firm explanation from OFPP except that there is a statutory need.

One former government senior acquisition official, who requested anonymity because they didn't want to be seen a critical of the administration, said under previous administrations OFPP rarely approved the issuance of interim rules, and generally, they should only be used to implement a statute or executive order.

Gordon said the FAR Council must be more careful when using interim rules.

"We also are exploring other ways to get feedback from industry and other stakeholders very early in the process," Gordon said. "We've had public meetings for many rules. I want to be sure we are using the public meeting avenue whenever we can. There will be situations where we may have to issue an interim rule because of a statutory deadline, but if we've been able to get industry input early on, at least the interim rule could benefit from having gotten that input from a public meeting."

The issue of interim rules isn't the only area Gordon is working closely with industry on.

Business case guidance out shortly

OFPP soon will issue new guidance requiring agencies to submit business cases for future multiple award contracts and a final rule redefining jobs that are considered inherently governmental, closely associated with inherently governmental and critical.

OFPP released a proposed rule on inherently governmental in March 2010 and received hundreds of comments.

The business case rule is closer to being final. OFPP released an interim rule requiring business cases in December.

"We are supplementing the FAR rule, as we often do, by providing more specific guidance," Gordon said. "It will be telling the agencies, and we developed it with the agencies so it will be no surprise, they need to think about duplication before they start their own contract, especially if their own contract will be a large dollar one."