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) 383-7472 manosk@howrey.com