Lectern

By Steve Kelman

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The 1,500 Commandments for contracting officers

I heard a fascinating factoid at a conference recently: A word search of the Federal Acquisition Regulation for expressions beginning with the phrase "The contracting officer shall..." returned something like 1,500 mentions. (And that does not count any additional "shalls" in FAR agency supplements.)  The speaker who mentioned this said that it is scarcely a wonder that government contracting officials hardly have time to do the regulatory basics of their jobs, let alone finding time to think about approaches to getting better deals for the government or structuring a good business relationship. There are simply too many commandments.
 
Henry Mintzberg, the McGill university management scholar who is a favorite of mine, has made the point that the problem with a very rule-bound organizational environment is that it becomes natural for employees to assume that following the rules, which is supposed to assure a competent minimum level of performance, actually constitutes their entire job -- that their job is done when they have followed the rules. With 1,500 "shalls" (obviously not all of them apply to every individual contracting official, especially in any given acquisition), it may be close to being true that all people have time to do is to follow the rules.
 
If we realize that we need to provide psychological and even literal room for contracting officials to be thinking about issues of acquisition strategy and not just checking various boxes, what should the Office of Federal Procurement Policy and the FAR Council be doing about the 1,500 shalls?
 
Rules serve two major purposes. One is to provide helpful information and advice to frontline people that represents accumulated wisdom about what contracting approaches are likely to produce good results. Think of these as a contracting equivalent of baking instructions on a package of Betty Crocker brownie mix. The other is to signal practices that either must be done or avoided for reasons of ethics and integrity. These are things frontline employees need to do whether they want to do or not.
 
Rules of the first sort should not have "shall" attached to them. It should be made clear they are suggestions, tricks of the trade, guidance. If a person doesn't want to follow the recipe on the brownie mix package, they don't have to. The "shalls" should be limited to rules of the second sort.
 
To deal with the excessive "shall" problem, the first step is figuring out which of these "shalls" are required by law and which are self-inflicted. For every "shall" not required by law, the FAR Council should be aggressively seeking to prune back "shalls" based on the distinction between job advice and ethical/integrity requirements.
 
Obviously this can't all be done at one time, especially given the ponderous nature of the regulation-writing process the FAR Council itself has. Perhaps one part of the FAR should be taken as a test bed for this kind of scrubbing, and implementing changes to "shall" language should be a test bed for the efforts to improve the regulation development process that Dan Gordon at OFPP and Kathy Turco at GSA are attempting.
 
Dan and Kathy, the ball is in your court.

Posted on May 19, 2011 at 7:27 PM


Reader Comments

Wed, May 25, 2011 Harvey

My only concern is that if you ignore the recipe, you probably will get very nasty brownies. Seems prudent to just follow the recipe. In time the rules can be navigated quickly and can be used like lines on a road to keep you from veering into oncoming traffic or driving off a cliff.

Wed, May 25, 2011 Jim

"The problem is restrictions imposed by ignorant and block-headed supervisors and office chiefs and excessively conservative agency lawyers. The problem is a poorly structured workforce that lays a heavy clerical and administrative burden on supposedly professional personnel" AMEN ... Can we get an AMEN everybody!"

Sun, May 22, 2011 Jaime Gracia Washington, DC

The culture of fear and risk aversion is on full display with these types of issues. Exacerbated by poor institutional knowledge and broken process for requirements and business processes, it is a situation where procurement officials have little chance of success. Training is vital, but changing the culture to help Contracting Officers be successful vice the microscopic focus on failures is crucial.

Fri, May 20, 2011 arty

Why don't we have an infinite alphabet? The reason is: people couldn't communicate with an infinite alphabet. In fact, people would end up grouping letters that are too similar as the same letter, until you have a finite alphabet. Now if infinite is too big, what number of letters would also be too big? A billion? A million? A hundred thousand? 1500? 26? Now let me ask you why don't we have an infinite number of procurement rules? What is the consequence of having too many rules? The answer is, primarily, too many rules is the same as no rules. Unable to comply with all the rules, individuals have to either stop altogether or just do the best they can. It is up to the rule makers to develop an adequate set of rules that is not too big for people to use, and stop there. How many rules is that? 1? 5? 10? Dare I suggest more?

Fri, May 20, 2011 Vern Edwards

Actually, when you include "must," and conduct a proper search, there are closer to 2,590 commands to COs. So what? Jim, any CO who thinks that the FAR prevents COs from getting the job done expeditiously and efficiently simply does not know the FAR. In 40 years in this business, I have found that there are very few things that cannot be done legally by a CO who knows his or her business. Most COs do not have a professional knowledge of the FAR. Thousands of my students have learned that knowledge is power, and that a CO who knows the FAR knows that it does not prevent him or her from doing the job. The FAR is not the problem. The problem is restrictions imposed by ignorant and block-headed supervisors and office chiefs and excessively conservative agency lawyers. The problem is a poorly structured workforce that lays a heavy clerical and administrative burden on supposedly professional personnel. What we need is a truly professional cadre of COs who understand concepts, know the rules, and how how to design simple processes to get things done. Steve's project is a waste of time. He would do better to use his influence to (1) improve the curricula of DAU and FAI, which are truly lousy and (2) make management see that the current workforce structure is needlessly costly and detrimental to operational effectiveness and efficiency.

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