Publication of Agency Procurement Regulations

1. Publication of Agency Procurement Regulations Karen L. Manos Acquisition Reform & Experimental Processes Committee November 30, 2004

2. Overview • ABA White Paper • Legal Requirements • Publication for Public Comment • Publication for Public Guidance or Information • Agency Practices • Department of Defense (DoD) • National Aeronautics & Space Administration (NASA) • General Services Administration (GSA) • Department of Veterans Affairs (VA)

3. ABA White Paper • Spring Council Meeting: Discussion of agencies’ trend to transfer procurement regulations from Code of Federal Regulations to non-regulatory guidance manuals • No government-wide opportunity for comment on trend • Task force appointed to study the issue and prepare white paper for agencies’ consideration • Annual Meeting: White paper presented “Publication of Agency Procurement Procedures, Policies, and Guidance” • www.abanet.org/contract/operations/memberinfo/home.html

4. Legal Requirements • Two separate and distinct requirements: • Office of Federal Procurement Policy Act (OFPPA), 41 U.S.C. § 418b, requires publication for public comment • Freedom of Information Act (FOIA), 5 U.S.C. § 552, requires publication for public guidance or information • Administrative Procedure Act (APA), 5 U.S.C. § 553, not applicable to procurement policies, regulations or procedures.

5. Publication for Public Comment • OFPPA requires publication for public comment of any procurement policy, regulation, procedure or form that has either: • A significant effect beyond the internal operating procedures of the issuing agency, or • A significant cost or administrative impact on contractors or offerors

6. OFPPA v. APA • OFPPA is broader in coverage than the APA • APA applies to “substantive” or “legislative-type” rules, but not “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” • OFPPA applies to both, provided there is a significant effect outside agency or significant cost or administrative impact • OFPPA is less procedurally burdensome on agency • Congressional emphasis on “timely and effective solicitation of the viewpoints of all interested parties on policies and regulations of general application”

7. Rulemaking Requirements • Agency’s failure to comply with rulemaking requirements renders rule invalid and unenforceable • Few cases have analyzed circumstances under which OFPPA rulemaking requirements apply • Court of Federal Claims “jet fuel” cases have held that class deviations are subject to OFPPA rulemaking requirements • E.g., Tesoro Hawaii Corp. v. United States, 58 Fed. Cl. 65, 72 (2003).

8. Publication w/o Public Comment • FOIA requires agencies to publish in Federal Register: • Rules of procedure, descriptions of forms, and instructions as to scope and contents of papers • Substantive rules of general applicability • Amendments, revisions or repeals of the above • FOIA requires agencies to make available electronically: • Statements of agency policy and interpretations that have not been published in the Federal Register • Administrative staff manuals and instructions to staff that affect a member of the public

9. Case Studies • DFARS Transformation Initiative • NASA FAR Supplement • GSA Acquisition Manual • VA Handbooks and Information Letters

10. DFARS Transformation • Moving policies, procedures and guidance from DFARS to companion resource, “Procedures, Guidance and Information” (PGI) • Rulemaking states correct legal test: • Notice of Proposed Rulemaking, 69 Fed. Reg. 8145 (2/23/04) • Final Rule, 69 Fed. Reg. 63326 (11/1/04) • Wait and see on application • PGI now available electronically at www.acq.osd.mil/dpap/dars/index.htm • Resolves concerns re: availability and ease of use

11. NASA FAR Supplement • Removing internal procedures and guidance from CFR • Material will still be available electronically in single, integrated NFS • www.hq.nasa.gov/office/procurement/regs/nfstoc.htm • Series of rulemaking publications: • First Proposed Rule, 68 Fed. Reg. 64847 (11/17/03) • Last Final Rule, 69 Fed. Reg. 44609 (7/27/04) • Concern with NASA’s interpretation of what does not require publication for public comment (e.g., requirement to maintain copies of unsuccessful offers)

12. GSA Acquisition Manual • GSAM is not available for public comment, but it incorporates GSA Acquisition Regulations (GSAR) and internal policies into one document • GSAM is available electronically • Well indexed, GSAR materials are shaded, and changes are noted • Appears to comply with publication-for-comment test • Federal Supply Schedule (FSS) Program • At least 16 mandatory FSS clauses were not published for public comment and are not in GSAM or readily accessible • FSS internal policies are not included in GSAM

13. VA Handbooks & Info Letters • VA website has link to VA’s acquisition policies and regulations • VA also posts “Directives,” “Handbooks,” and “Information Letters” • No statement of criteria for publication and use is inconsistent • Not well indexed • VA rules implementing special procurement statutes are not published and are difficult to locate • E.g., Veterans Health Care Act administered through unpublished Master Agreement and letters to contractors

14. Conclusion • Agencies generally are complying with OFPPA requirements • Important to look beyond the title of the provision and evaluate its substance • Some agencies are not doing as well complying with FOIA publication requirements • NASA and GSA have adopted particularly useful, transparent and publicly-accessible approach • DoD’s new PGI website adopts similar approach

15. Questions?Karen Manos(202) 383-7472manosk@howrey.com