National Association of Government Contractors

Defense Review of Regulations Includes Acquisition

In response to White House orders issued back in February, that agencies reduce and reform regulations by getting rid of two for every new one they write, the Defense Department is currently reviewing 716 of their agency rules.

DoD has 15 different regulations for the Freedom of Information Act alone, 21 rules related to privacy, while a considerable portion of the 716 regulations under review -- 350 of  them --- are acquisition related.

"We have a centralized task force made up of senior representatives who meet biweekly to look at regulations," said Joo Chung, DoD's director of oversight and compliance in the Office of the Deputy Chief Management Officer, during a presentation at an industry event in Arlington, Virginia on Aug. 22.

"We've scheduled meetings out until 2018 to review all of these regulations on a biweekly basis so components know when they will need to brief the task force. We also tried to set up workshops before the task force briefings for components to work through the regulations. This way you are getting the subject matter expert buy-in on the recommendations. This effort does require general counsel reviews prior to when the recommendations are provided to task force for review. This is one way to be effective and ensure we as members of the task force have information we can rely on to talk about regulations at the meetings." 

Chung said expert subgroups are looking at specific areas such as acquisition, transportation and health care to review rules and make recommendations to the task force.

The task force within DoD was empanelled in late April and has been looking at about 10 regulations per meeting, sending their recommendations to Secretary James Mattis for review and approval.

Linda Nielson, deputy director in the Office of Defense Acquisition Regulations System for the Defense Procurement and Acquisition Policy, has stated that the Pentagon is taking a multi-step approach to review acquisition rules.

Nielson said the first step is to do historical research on all the provisions and clauses.

"Over about two-to-three weeks, the Defense Federal Acquisition Regulations (DFARs) staff did nothing but research. Some of the provisions have been around for such a long time that we couldn't find any evidence of their insertion into our regulations," Nielson said at the Arlington, VA meeting. "For all 350, we compiled the intended outcome of the regulations, what was the reason it was identified as an issue that required codifying. We have a copy of the description of the use and we came up with way of archiving them for every provision."

Nielson said under Step Two, subject matter experts evaluated whether or not the provision or clause is providing benefits under the terms of the executive order.

DoD issued a Federal Register notice in June seeking comments provisions and contract clauses that may be appropriate for repeal, replacement or modification. On Aug. 1, DoD extended the comment period to Sept. 11.

One major change to the way DoD is reviewing acquisition regulations is adding a third way to measure the burden of the rules on citizens and businesses.

Nielson said the military regularly estimates the impact of regulations through Paperwork Reduction Act (PRA) and through the Small Business Regulatory Flexibility Act, but now is adding an estimate of the compliance burden.

"We will estimate the compliance burden outside of the PRA view of burden," she said. "At this point, for the purpose of the task force, we are using information we have on hand and using OMB's approved assessment or estimate of what PRA burden is. All of these recommendations for change will undergo rulemaking under the Office of Federal Procurement Policy Act."

This process will not be a fast one. Nielson said it could take 18-to-24 months to go through the rulemaking process to change or terminate existing rules, while others would need congressional action because the rules are based on legislation.

She said many of these changes would come about in 2019 and 2020.

Still Nielson said DoD has confidence this process as it has done regulatory reform reviews previously over the last decade or more, but this one is different because it's a more concentrated effort than ever before.

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