Making the FAR sing isn’t enough — no one can be expert in all applicable laws, regs

The cost to the taxpayer of attempting to eliminate all risk is prohibitive. The Executive Branch will accept and manage the risk associated with empowering local procurement officials to take independent action based on their professional judgment.

 

If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.

That was from the Federal Acquisition Regulation (FAR) Part 1.102-2 and -3, quoted in DHS’s PIL Boot Camp Workbook.

Certainly this and other provisions are why many people say the FAR is not the main barrier to acquisition innovation. Contracting officers could accomplish a great deal if they read the whole thing and took initiative.

I think there’s a ring of truth to that. Contracting officers should be experts in the FAR, and should thus know the what is prohibited and what is not. If an action is not addressed in the FAR, then it is assumed open for innovation rather than closed for approval.

The problem, however, is that the boundary conditions for innovation is not the FAR, but includes a host of other considerations that the contracting officer cannot be expert in. Often, the FAR references a regulation which is explained in great detail in DOD guidance, memos, implementation guides, and so forth. Then there is considerations of what is in law, or mandated by Executive Order, or numerous other regulations.

As FAR Part 1.102 (d) states:

In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.

It’s not simply the volume, but the uncertainty as to what rules apply and from where they might originate. Assuming all members of the Acquisition Team are experts, and know their respective areas of law and regulation fully, there still can be error when it comes to communication and execution.

Therefore, the risk-averse mindset still prevails. Often, each functionalist struggles to keep up with the breadth of rules within his or her own purview — let alone trust that all other Acquisition Team members have complete and accurate knowledge of their own areas, and have correctly interpreted the present situation in that context.

So acquisition leadership needs to go one step farther. No Acquisition Team member should be punished for a mistake, even if it conflicted with some law or regulation, unless it is clear and obvious from the viewpoint of a reasonable third-party person with the same functional experience that only malicious intent or severe incompetence could have resulted in the actions. This dramatically lowers downside risk for the huge percent of the workforce trying to do their best to contribute their knowledge and energy.