FedSubK Feature: Service Contract Labor Standards (SCLS) - Exemptions for Certain Services (Part 2 of 3)
Updated: May 4, 2024
(UPDATED 4/23/2024)
In this second installment of our three-part series on the Service Contract Labor Standards (SCLS, formerly known as the Service Contract Act (or SCA)), we are going to talk about certain services that are exempt from the SCLS. There are exemptions based on statute and exemptions based on regulation. Individual exemptions can also be based on criteria set forth in the Fair Labor Standards Act (FLSA) based on the work performed by an employee for classification as a bona fide executive, administrative or professional service. (That one is not as easy to determine as it sounds…read on!)
Knowledge Baseline: Some SCLS basics to keep in mind are–
- The statutory threshold for application of the SCLS is $2,500. Yes, it’s LOW. And, no, it is not subject to inflationary adjustments because it is set in the statute. It has been this amount since the statute originated.
- Actions with a total value at or below $2,500 are not subject to the SCLS.
- Actions with a total value over this amount are reviewed by the Contracting Officer and will include terms and conditions letting businesses know if the action is subject to the SCLS or if an exemption applies.
- The Federal Acquisition Regulation (FAR) Subpart 22.10 governs Federal contracting processes related to the SCLS.
- The SCLS applies to services performed in the 50 United States, District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, Wake Island, Eniwetok Atoll, Kwajalein Atoll, Johnston Island, Canton Island, and the Northern Marianas.
Why is Understanding Exemptions Important? If an employee is not exempt from the SCLS, you must pay at least the prevailing wage found in the contract (provided by the Contracting Officer) and fringe benefits as mandated by the Department of Labor. Failure to do so can result in steep fines.
Statutory Exemptions from the SCLS.
Services exempted by statute are industries or classes of services which are typically offered, sold regularly, and/or provided by businesses to the general public on a commercial basis in substantial quantities as part of normal business operations. Prices for these services are most often based on established and regularly maintained catalog or market prices and are either published or available for inspection by customers. Services exempted from the SCLS by statute include:
Regulatory Exemptions from SCLS.
In addition to the statutory exemptions above, FAR 22.1003-4 includes a list of administrative limitations, variations, tolerances, and exemptions provided for by the Secretary of Labor. Regulatory exemptions from SCLS include:
NOTE: Moving services are subject to the SCLS. “Moving” is defined as storage, packing, and crating for “moving from one building to another or further distances” and includes intra-office moves. (29 CFR 4.123(e)(2)(i)(G))
The Secretary of Labor may also provide reasonable limitations and may make rules and regulations allowing reasonable variations, tolerance, and exemptions to and from any or all provisions of the SCLS statute except for wage and fringe benefit determinations, only in special circumstances where the Secretary determines that the limitation, variation, tolerance, or exemption is necessary and proper in the public interest or to avoid serious impairment of Federal Government business and such action will protect prevailing labor standards.
SCLS and Professional Services.
Services may also be exempt from the SLCS based on the services performed and the classification of the personnel who perform the work. The Fair Labor Standards Act (FLSA) (29 USC 201, et seq.) prescribes standards for the basic minimum wage and overtime pay that may affect SCLS-covered actions. The FLSA interacts with the SCLS in three key ways:
NOTE: Non-management maintenance employees such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and other laborers are not exempt from the SCLS or FLSA no matter how highly paid they might be.
Professional Services Exemption from SCLS. “Professional Services” are classified as such because the primary duty of the individual performing the work requires knowledge of an advanced type in a field of science or learning which is customarily acquired by a prolonged course of specialized intellectual instruction or the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. Architects, engineers, archeologists, chemists, biologists, accountants, lawyers, doctors of medicine or dentistry, actuaries, physicists, computer systems analysts, computer programmers, software engineers, and other similarly skilled computer workers, or instructors of the same are considered to provide “professional” services. Computer-related positions are covered under the Administrative Procedure Act Section 13(1)(17) of the FLSA.
!!!!BEWARE!!!! Per the Code of Federal Regulations (20 CFR Part 541), job titles alone are insufficient to establish the exempt status. The exempt or nonexempt status is determined on the basis of whether the salary and duties of the person doing the work meet the requirements therein. To be considered professional services, criteria set forth in the FLSA must be met.
- Persons performing professional services must do so “customarily and regularly” as part of their primary duties, meaning that the professional services occur normally as part of their primary duties and reoccur every work-week; professional services are not isolated or one-time tasks.
- The profession must be considered exempt under Section 13(a)(1) of the FLSA to qualify for an SCLS exemption.
- The individual must be employed in a bona fide executive, administrative, or professional capacity.
The individual exemptions are each addressed below.
FLSA Individual Exemption - Bona Fide Executive (29 CFR 541.100). For an individual to meet the bona fide executive exemption, all of the following must apply:
Examples of management duties include:
- Selecting, training, appraising, disciplining employees,
- Plan or apportions work,
- Determines technical and/or materials to be used, purchased, stocked, and/or sold,
- Plans and controls budget,
- Monitors performance.
FLSA Individual Exemption - Administrative (29 CFR 541.200). For an individual to meet the bona fide administrative exemption, all of the following must apply:
The phrase “discretion and independent judgment” must be applied in light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:
- has authority to formulate, affect, interpret, or implement management policies or operating practices;
- carries out major assignments in conducting the operations of the business;
- performs work that affects business operations to a substantial degree, even if the employee's assignments are related to the operation of a particular segment of the business;
- has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval;
- has the authority to negotiate and bind the company on significant matters;
- provides consultation or expert advice to management;
- is involved in planning long- or short-term business objectives;
- investigates and resolves matters of significance on behalf of management; and
- represents the company in handling complaints, arbitrating disputes, or resolving grievances.
The “exercise of discretion and independent judgment” implies that the employee has the authority to make an independent choice, free from immediate direction or supervision. The term “discretion and independent judgment” does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee's decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. For example, the policies formulated by the credit manager of a large corporation may be subject to review by higher company officials who may approve or disapprove these policies. The management consultant who has made a study of the operations of a business and who has drawn a proposed change in the organization may have the plan reviewed or revised by superiors before it is submitted to the client.
FSLA Individual Exemption - Professional (29 CFR 541.300). For an individual to meet the bona fide professional exemption, all of the following must apply:
The phrase “work requiring advanced knowledge” means work that is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical, or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.
The phrase “field of science or learning” includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type but is not in a field of science or learning.
The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best initial evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is also available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction.
Subsets of “professionals” include:
- Teachers (29 CFR 541.303). Any employee with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge. Exempt teachers include but are not limited to: Regular academic teachers; teachers of kindergarten or nursery school pupils; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrumental music instructors. The possession of an elementary or secondary teacher's certificate provides a clear means of identifying the individuals contemplated as being within the scope of the exemption for teaching professionals. A teacher who is not certified may be considered for exemption, provided that such individual is employed as a teacher by the employing school or school system.
- Practice of Law or Medicine (29 CFR 541.304). Any employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof and any employee who is the holder of the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program pursuant to the practice of the profession is eligible for the exemption.
FSLA Individual Exemption - Computer Employees (29 CFR 541.400). Because job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of this exemption. For an individual to meet the computer employee exemption, all of the following must apply:
The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters, and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in § 541.400(b), are also not exempt computer professionals. (29 CFR 541.401)
Computer employees may also have executive and administrative duties which qualify the employees for exemption under bona fide executive or professional definitions.
“Learned Professionals” Exemption.
Learned professionals must perform work requiring advanced knowledge in a field of science or learning, and knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Below is a list of categories of “learned professionals”. The FLSA says that to qualify for an exemption, the employee’s “primary duty” must be the performance of exempt work. The term “primary duty” means the principal, main, major, or most important duty that the employee performs with the general test being that an employee who spends more than 50% of their time performing exempt work satisfies the primary duty requirement.
- Account clerk or bookkeeper – performs routine work and do not require a 4-year or advanced degree. Certified public accountants generally meet the duties requirements for the learned professional exemption. In addition, many other accountants who are not certified public accountants but perform similar job duties may qualify as exempt learned professionals. However, accounting clerks, bookkeepers, and other employees who normally perform a great deal of routine work generally will not qualify as exempt professionals. (29 CFR 541.301(e)(5))
- Paralegal or Legal Assistant – an advanced degree is not required for entry into the field, however, some paralegals possess general 4-year advanced degrees or training from a 2-year college or equivalent institution, unless the paralegal or legal assistant possesses an advanced specialized degree in another professional field and applies advanced knowledge from their field in the performance of their duties, generally, the FLSA exemption does not apply. (Example: if a law firm hires an engineer as a paralegal to provide expert advice on product liability cases or to assist on patent matters, that engineer would qualify for FLSA exemption.) (29 CFR 541.301(e)(7))
- Computer Analyst – primary duties consist of advanced knowledge or application of systems analysis techniques and procedures, consulting with users to determine hardware, software, or system functional specifications. (29 CFR 541.400)
- Hardware or Software Engineer – primary duties consist of design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, to include the creation of prototypes, and may be related to operating systems. (29 CFR 541.400)
- Interpreter – typically an advanced degree is not required for entry into the field but could be if necessary for the type of interpretation being done (linguist interpreter).
- Stenographer – an advanced degree is not required for entry into the field.
- Consultant or Advisor – This goes back to our definitions of professional services. It depends on the work and who performs the work. Merely calling giving oneself a title such as “consultant” or “advisor” does not confer advanced knowledge gained from a prolonged course of intellectual study, and does not automatically trigger the FLSA exemption. These types of services must be reviewed on a case-by-case basis and classified appropriately based on criteria set in the SCLS and FLSA.
- Law Enforcement, Emergency Response, & Rescue -- The FLSA does not grant SCLS exemption to the following classifications of employees.
(1) Police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers, and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.
(2) Such employees do not qualify as exempt executive employees because their primary duty is not the management of the enterprise in which the employee is employed or a customarily recognized department or subdivision thereof as required by the FLSA. The position is not exempt merely because the police officer or firefighter also directs the work of other employees in the conduct of an investigation or fighting a fire.
(3) Such employees do not qualify as exempt administrative employees because their primary duty is not the performance of work directly related to the management or general business operations of the employer or the employer's customers as required by the FLSA.
(4) Such employees do not qualify as exempt professionals because their primary duty is not the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as required by the FLSA. Although some police officers, firefighters, paramedics, emergency medical technicians, and similar employees have college degrees, a specialized academic degree is not a standard prerequisite for employment in such occupations.
Where Can I Find Out More? Here are a few great references for service contractors to have at hand in case the need arises:
DOL’s WHD Compliance Assistance Webpage: https://www.dol.gov/agencies/whd/compliance-assistance
DOL McNamara-O’Hara Service Contract Act (SCA) site:
https://www.dol.gov/agencies/whd/government-contracts/service-contracts
Frequently Asked Questions on SCLS (SCA):
https://www.dol.gov/agencies/whd/government-contracts/service-contracts/faq
Fair Labor Standards Act (FLSA):
.webp)
View related posts
Where Good Procurements Really Begin (Weatherly the RFO - Part 3)
Before I got my first warrant (required to sign contracts), I was a Contract Specialist writing my first acquisition plan. It was for a large Total Environmental Restoration Contract (TERC) that included A-E, Services, and Construction terms and conditions. I was told, "follow FAR Part 7." I thought, "Okay, looks like I'll be doing a lot of these in the coming years. Figure it out." With a few years under my belt, I learned quickly that acquisition planning is the foundation for every successful procurement.
When I moved into leadership roles, we built acquisition planning into our entire program and project lifecycle. We implemented Advanced Acquisition Planning Boards (AAPBs) before writing lengthy acquisition strategy and planning documents. We invited stakeholders like Contracting to attend the budget request preparation meetings for the next FY. We started shaping an understanding and a plan of action months and years in advance of analyses and research.
Anyone who has spent time around acquisitions in the Federal space knows that most procurement problems begin at the beginning, before any procurement forecast goes into Acquisition Gateway or on the agency’s small business page, or any Sources Sought notice is issued in SAM. Long before a solicitation is issued and proposals arrive. And long before anyone files a protest.
You can almost always pin-point where, if you are going to have a problem, it will begin.
When an agency hasn't fully thought through what it's buying,
or why it's buying it,
or how the requirement should be structured,
or who might be capable of performing it,
or what risks need to be managed before the acquisition ever reaches the marketplace.
Acquisition planning is preparation. If that’s not what we’re doing, we’re already creating problems for every acquisition phase that follows.
And that's why this topic in federal acquisition and the proposed RFO rules deserves attention, especially now that FAR Part 10, Market Research, has been combined with FAR Part 7, Acquisition Planning. Combining acquisition planning and market research recognizes something practitioners have known for years -- they're inseparable.
But it also means that changes to planning now ripple directly into how agencies understand the marketplace before they ever write a solicitation.
Congress never cared whether agencies produced acquisition plans. Congress cared whether agencies made good acquisition decisions. They care about competition, stewardship of taxpayer dollars, thoughtful use of small businesses, commercial buying , performance-based acquisitions, and risk management.
Those are the objectives.
Acquisition planning has been the primary tool for achieving them. But the plan itself was never the goal. The effort behind the plan was. Acquisition planning is simply one of the first steps in the procurement process. It is the place where the most important decisions have already been made.
Consider the examples I gave above about the discussions in the AAPB and budget request preparation. All of that is well before anything was put into writing. And heck, by the time the RFI was released (if we released one), just about every big question was already answered.
• Will this be a small business set-aside?
• Have commercial solutions been considered?
• Should the requirement be bundled?
• What's the acquisition strategy?
• What contract type makes the most sense?
• How will proposals be evaluated?
• How much performance risk is acceptable?
Those decisions are a product of discussions very early in acquisition planning. By the time industry reads the solicitation, many of the biggest decisions have already been made. The solicitation simply makes those decisions visible. So that begs the question…
…If acquisition planning changes, doesn’t everything downstream change, too?
I have a ton of notes in the margins of my electronic copies of the RFO parts issued so far. Most center around... Where is the acquisition leadership expecting contracting specialists and contracting officers to learn how to think through these decisions? I'm not talking training sessions, listening sessions, leadership briefings, webinars, the FAR Companion, Practitioners' Albums.
We are overwhelmed by data these days -- there is no shortage. Collection of data isn't the issue. it's what to do with it once we have it. What is meaningful and what isn't? That's a legitimate concern from the perspective of a contract specialist working different types of contracts in their cradle-to-grave office set-up. Or the specialist or contracting officer moved as a result of agency realignments and now buying something new, with no training whatsoever.
With the FAR Council is intentionally moving away from detailed procedural direction in favor of shorter regulations supported by guidance outside the FAR, we have to acknowledge that, historically, the FAR didn't just tell contracting officers what it needed to comply with, but often explained how to ensure compliance and answered questions about how to get it done.
From the Contracting Officer's Chair
Let’s start with a discussion about curiosity. Bring me a purchase requestion and I would have a list of questions ready for you. I know from experience that my answers and how this action continues hinges on what those answers are. That includes everything that goes right and wrong, long before I use any AI tool and ask questions.
• What problem(s) are we trying to solve?
• Is there another way to buy this?
• Has it been purchased before?
• Who in industry might already be doing it and how is it procured?
• What risks are we creating and mitigating?
• What opportunities are we overlooking and creating?
• What is it that we don’t know yet but need answers for?
And then the standard "dollar value", "when do you need it", and "do you have money yet" questions.
Every profession has it and the contracting craft is no different. Knowing what questions to ask is part of the craft. Also part of the craft is learning how best to pass information from one experienced professional to the next. The RFO is forcing us to reconsider where and how that institutional knowledge should live going forward. And, how we preserve it in market research and acquisition planning.
Written acquisition plans preserve all discussion and decisions points. It is the ultimate fallback for the building of the solicitation and the justifications of what we are doing and why in the pre-award phase leading to the solicitation. It is never seen by industry but relied upon by acquisition. Making preservation discretionary means documentation practices could vary significantly across agencies, depending on each agency's implementation decisions and tolerance for risk.
What gets lost are rationales, alternatives considered, risk discussions, disagreements, lessons learned, why things changed from the last procurement, and what outside influences impacted current decisions. Acquisition plans in their written form allow that information to be inherited by future acquisition teams. This deserves more attention than it's receiving in the RFO.
The RFO made the changes in FAR Part 7 about the laundry list of what had to go in the plan.
Wrong argument.
It is ALL about careful consideration of facts and circumstances before acting. How much consideration is required to make informed decisions, preserve those decisions so we have them as a guide moving forward, and actually use them to improve and streamline the process. Contracting officers know that their judgment can't be regulated. They stop relying on checklists and start recognizing patterns. They know the questions to ask end users, requiring activities, legal counsel, budget, and small business specialists because seeing the patterns for a poor acquisition form. That's because most know where acquisitions tend to go off track from living through it.
If the FAR is going to become shorter, the acquisition workforce needs a deliberate and consistent strategy across the board for preserving the judgment, rationale, and historical knowledge that good acquisition planning has always provided.
Otherwise, while we simplify the rulebook, it will -- for now -- make the profession harder to master.
What’s Coming Next -- Article Four: Market Research Isn't About Checking a Box
----------------------------------------------------------------------------------
Author: Shauna Weatherly, President, Federal Subcontract Solutions LLC (dba FedSubK). Shauna is a small business advocate and owner of FedSubK. FedSubK exists to simplify federal contracting, empowering small businesses with practical, understandable resources. We bring first-hand experiences in Federal contracting from multiple perspectives derived from roles held both in and out of Government over almost four decades of Federal service.
Visit us at fedsubk.com to learn more about--
Getting Started in Federal Contracting: fedsubk.com/begin-your-journey-here
Solutions and Our Trusted Support Provider Network: fedsubk.com/solutions-services
Insights from a Contracting Officer: fedsubk.com/insights
Free Webinars and Resources: fedsubk.com/webinars-training
What Does Nonstatutory Really Mean? (Weathering the RFO Series - Part 2)
In my last article, I talked about one of the biggest misconceptions surrounding the Revolutionary FAR Overhaul (RFO) is the idea that the Federal Acquisition Regulation (FAR) itself creates procurement policy. It doesn't. And if you are in GovCon, you should know that basic truth. Congress creates procurement policy. The FAR implements it. That distinction changes how we should think about the RFO. Instead of asking, "Why did they delete that?" I think we should first ask, "What purpose was that requirement serving?"
That question brings me to one of the most overused words appearing in every conversation or Government briefing about the RFO (aside from "empowering")...
Nonstatutory.
But it really is the most misunderstood word in the current conversation.
You'd think it was pretty straightforward. When you hear that the FAR Council was removing nonstatutory requirements from the FAR, the reaction was pretty simple. “Well, okay. If Congress didn't require it, why should it stay?" Just one thing...that assumes something that isn't necessarily true --
...if Congress didn't specifically require a process or procedure, the process or procedure isn't important.
Whoa! Think about that for a minute.
I spent most of my career implementing FAR, not just reading it, and that is NOT the right conclusion.
Being a Contracting Officer teaches you is that two questions can sound almost identical while leading to very different answers. And as Contracting Officers, we’ve been taught to pay attention to words very carefully.
In this case, the first question is a legal question: "Did Congress require this? " But the next is an acquisition question: "Why did this process or procedure exist to begin with?" Sometimes the answer to both questions is the same. Congress required it. Case closed. But more than not, they aren't. And that comes out when you sit in a FAR policy working group meeting. You hear the discussion and debate over what Congress said is the law and the intent of that law, versus how we implement the law and ensure compliance with the law. In that room, the conversation always went back to Congress established the objective and intent or outcomes. The FAR established the procedure with which to ensure objective or intent was achieved.
And THAT requires consistency to get there Governmentwide. So, how do you get consistency? Processes and procedures.
Ouch! There are those pesky processes and procedures again. Those "nonstatutory" actions.
Congress rarely dictates via law how to get from point A to point B for something like acquisition planning. Or market research. Or documenting a responsibility determination.
The FAR has historically translated policy into repeatable acquisition practices. And for good reason. Left to their own devices, agencies have as many ways to do acquisition as the number of acquisition professionals they have on staff.
Honestly -- how many times have you worked with two Contracting Officers in the same office that didn't do the same thing the exact same way, even with processes and procedures in place.
Often.
How FAR Actually Evolves
FAR didn't appear one day as a finished document. It evolved. And that evolution was expressly the oversight of the FAR Council which allowed the document to grow to into a perceived answer book, versus a regulation. And every acquisition professional has lived some part of that evolution. We've seen the legislation, been involved in protests, participated in IG reviews and seen the reports (and responded to them), instituted best practices and lessons learned...and more. Over time one-off procurement issues in a single agency or type of acquisition across Government become a way to migrate fixes into regulatory language in an effort to reduce risk. If Contracting Officer's weren't taking risks it was because the FAR kept the lanes narrow to the point there couldn't be an innovation race to streamline acquisition. The grey area in FAR become harder to find. Not because Congress required it but because acquisition leaders across Government kept watering the regulatory jungle of the FAR.
The thread of consistency is created in the rulemaking process.
Congress passes a law requiring agencies to maximize practicable opportunities for small businesses. Congress doesn't necessarily prescribe every analytical step a Contracting Officer should take before deciding whether a procurement should be set aside.
But take that law, give it to SBA, they write a rule, and upon finalization...if the FAR Council believes it should be incorporated into the regulation, it creates a FAR case and tasks one of two councils – the Civilian Agency Acquisition Council (CAAC) or the Defense Acquisition Regulations Council (DARC) – to lead the process of drafting, coordination, and agreement on the text of the rule.
The entity on point (CAAC or DARC) and its co-chair (whichever isn't the lead) herd procurement analysts in working groups to write FAR changes that include PROCESSES for implementation. These acquisition professionals from across government talk about interpretations and context. And they are sorting out the commonality all of what they all do. That's where process and procedure start to become important.
Interpretation and context is everything in the acquisition business. The words are chosen carefully and the decision to create a process or procedure within the FAR is the way to ensure consistency and the outcome / intent is achieved.
Once rules become final and their processes were implemented, they become tied to other processes and you get a series of procedures that tie across types of contracts, use of certain funding, types of buying methods, and types of evaluation processes... and more.
Those processes and procedures become threads of consistency across government.
But that doesn't mean every process or procedure put into place should remain forever. I mean, the RFO just now got rid of the American Reinvestment and Recovery Act (ARRA) language from awards made in 2009 and 2010. Why did that take so long?
From the Contracting Officer's Chair
We need to understand what role processes and procedures have been playing before deciding they are no longer needed. Particularly with an acquisition workforce turned upside down through "The Fork" and DRP and people jumping ship. We don't have the same level of historical knowledge now. Face it. Things are different. Not bad, just different.
Without process and procedures in place, how do they learn? By making bad decisions and getting your neck chopped in a time of threats to your livelihood coming from several directions? Behavior isn't likely to include a new level of taking risks in that environment.
Government acquisition leadership (and some of those hosting Government acquisition leaders in their think-tanks) simply aren't facing reality.
Now, I'm not arguing against simplification. Frankly, it is the exact opposite. Ive wanted a more readable and user-friendly FAR for years. That part of the RFO is worthwhile. But simplification being good, isn't what this is all about. It's about -- Now that “X” has disappeared, what else disappears with it? It's about distinguishing between simplifying regulations and building better outcomes. It's really easy to simplify something when you're looking at it from 30,000 feet. It's much harder when you're the Contracting Officer responsible for defending the acquisition file two years later.
Will Contract Specialists and Contracting Officers still have the same training, historical knowledge, management support, and tools available in while operating in the shell of the former workforce capacity -- especially at the end of fiscal year?
Did you notice the thing missing in my take versus the FAR Council's take?
I'm not asking whether the provision was statutory.
I'm asking questions the acquisition workforce is asking.
If someone had walked into my office twenty years ago and said, "Shauna, this thing you're making me do, it isn't statutory." My next question probably would have been, "Okay...but it helps accomplish X, so why wouldn't we use it?" Not because I was defending regulations but because I was trying to understand whether not doing something changes how I approached an acquisition and create efficiencies. Should I push back and how far can I push the envelope? Or could I defend taking a different action and argue I'm still compliant?
Some procedures existed because they genuinely improved decision-making. Others existed because they reflected old ways of doing business that no longer made sense. One of the responsibilities of a good Contracting Officer is learning to tell the difference. Working in the grey area. Understanding where it lives and not get rid of it when it is needed to achieve the outcomes intended by Congress.
That is our charge as acquisition professionals - exercising business judgement. That often involves a process to ensure we hit the mark and do our due diligency. And you Contracting Officer's know just how often you used processes and procedures in the FAR to fall back on when they actually helped streamline decision-making, efficiency, and consistency.
The RFO now revolves the conversation around statutory information that remains which short-circuits the discussion we need to have.
Statute tells us where a requirement came from, but experience helps us understand why the nonstatutory stuff mattered. And why is might still be needed.
We need that both perspectives as we move forward reviewing proposed RFO changes.
What's Coming Next -- Article Three: Where Good Procurements Really Begin?
One of the first places it gets real is acquisition planning. The FAR has historically translated procurement objectives put in place by Congress into how we determine acquisition planning requirements. And that influences everything from competition to market research to small business participation.
Next, I’ll be talking about why acquisition planning became one of the foundations of federal procurement and what it means when many of those implementation details move from regulation to guidance…again, two very different things.
----------------------------------------------------------------------------------
Author: Shauna Weatherly, President, Federal Subcontract Solutions LLC (dba FedSubK). Shauna is a small business advocate and owner of FedSubK. FedSubK exists to simplify federal contracting, empowering small businesses with practical, understandable resources. We bring first-hand experiences in Federal contracting from multiple perspectives derived from roles held both in and out of Government over almost four decades of Federal service.
Visit us at fedsubk.com to learn more about--
Getting Started in Federal Contracting: fedsubk.com/begin-your-journey-here
Solutions and Our Trusted Support Provider Network: fedsubk.com/solutions-services
Insights from a Contracting Officer: fedsubk.com/insights
Free Webinars and Resources: fedsubk.com/webinars-training
The FAR Isn't Procurement Policy (Weathering the RFO Series - Part 1)
"Shauna, what do you think about the Revolutionary FAR Overhaul?"
It's a fair question.
Sometimes I ask, "Which part?" Then I wait, maybe shuffle around, and take a deep breath.
The reason I ask – and display some body language that shows I’m anticipating the answer -- is because the Revolutionary FAR Overhaul (RFO) isn't one change. It's dozens of changes wrapped inside a much bigger conversation about what the FAR should and shouldn't be.
Depending on who you ask, it's “the most significant acquisition reform in decades”, a “risky departure from the procurement system we've relied on for more than forty years”, or a big “nothing-burger”. And I understand all of those perspectives.
If you haven't noticed, I do occasionally shoot from the hip. But before I deciding whether I fully agree or disagree with any particular change (proposed or in progress), I want to ask one simply question each time:
What problem is the FAR Council trying to solve?
Procurement regulations don't appear or disappear by accident. Some exist because Congress required them. Some were added after GAO decisions exposed weaknesses in the acquisition process. Others grew out of Inspector General findings or years of agencies wrestling with the same recurring problems.
Procurement policy leaders need to admit that much of the language in the FAR that is now being stripped out was put there by them to force consistent behavior and interpretation. THEY PUT IT THERE. And that caused the avenues to innovative acquisition to tighten and close. Processes and procedural junk has mucked up the FAR long after anyone could clearly explain why they were still there -- except maybe someone like me who has been living the FAR since 1990.
The biggest challenge RFO writers faced was knowing why something was put in the FAR. But many writers simply did not have the history from the working level, boots on the ground, rubber meets the road perspectives across multiple agencies. It's hard to believe that people who have spent their entire career in a single agency truly understand the way buying is actually accomplished across the Government.
That's why I decided to write Weathering the RFO. Not because I think I already know all the answers. But because I think we're asking the wrong questions about where the RFO takes us now. And it's being sold with an over-simplified message.
It's not about--
"Why did they delete this section?"
"Why did they move this guidance?"
"Why are they shortening this part?"
(I've been catching myself because those are the wrong questions to ask.) Those questions start at the end, not the beginning. To start at the beginning you have to look to Congress.
Congress creates procurement policy. That's where intent lives.
The FAR implements it. That's where people tend to muck it up, layer on, and twist that intent more than is necessary.
I want to see GovCon start asking a different question:
What are we trying to regulate?
Throughout the proposed rulemaking, the FAR Council explains that its objective is to retain statutory requirements and those processes necessary for sound procurement while removing or relocating other material that has accumulated in the FAR over time. That theme appears consistently throughout the initial set of proposed FAR cases and reflects the broader objective of simplifying the regulation.
But will the removal of nonstatutory processes and procedures drive the desired buying outcomes and behaviors?
To me, that's the more interesting and important question. Process and procedural edicts written into the FAR -- by design, by the way -- have led behavior of Contract Specialists and Contracting Officers for decades.
When process disappears overnight and leadership says "read all this great stuff we've given you to explain what we did", what leads and drives behavior then?
From the Contracting Officer's Chair
One of the advantages of spending nearly four decades inside the Federal Government system and near all of that in acquisition is that you develop a healthy respect for unintended consequences. I've seen relatively small policy changes fundamentally reshape acquisition practices. I've also seen sweeping change generate months of angst before it quietly moves into the background with very little long-term impact.
One thing that informs how I look at the RFO was working in the policy realm at the end of my career. I got to be a fly on the wall of big regulatory meetings. The discussions on those calls wasn't about the regulation itself but around problems.
A precedent-setting protest or case.
Agencies' varying interpretations.
Misunderstanding or lack of clarity of a requirement by industry.
Those discussions were all about preventing whatever the thing was from happening again. Putting controls in place through processes and procedures. And that's how a lot of FAR language got there in the first place.
In writing this series I’m reading through the changes with the lens of every position I've held in the acquisition workforce: the purchase card holder, the procurement technician, the Contract Specialist, the Contracting Officer, the Team Leader, the Branch Chief, the Chief of Contracting, the COR, and the Project Manager. I've lived through implementing and guiding others through big and small acquisition reforms. I'm using the experience of best practices, lessons learned, protests, contingency operations, and the “wish I could have done X” moments. I'm sifting through all of those files, moments, conversations, training materials, and experiences on why and how we were taught and shown and did what we did. And...the key...how did we absorb and implement it all as a workforce through process, procedure, behavior, and training? How did we create each new version of normal in a constantly shifting landscape?
Oh, don't get me wrong. There are changes that I think straight up are dumb, or were overdue. There are many concern me from the position of a small business advocate. And everything else will fall somewhere in between.
Decision-making as a Contracting Officer is about balance. Competition and efficiency. Flexibility and consistency. Innovation and oversight. Speed and stewardship. Those competing priorities have always defined federal acquisition, and they don't disappear simply because the FAR suddenly becomes a shorter version of its former self.
I'm not here to say the RFO is good or bad. That's not because I don't have opinions (because you know I do, if you’ve followed me for any length of time). Anyone who has spent a career in federal acquisition has opinions. It's because good procurement decisions rarely begin with the end. It's all about understanding what we see, and what we don't see.
I hope to get you all thinking about:
-- What was Congress trying to accomplish with each law touching procurement?
-- What was their intent?
-- How has the FAR historically implemented that objective?
-- What did the FAR Council change and why does it believe the change is appropriate?
-- What does it all mean for the people who are making the decisions using these regulations and its guidance?
· The Contracting Specialists and Contracting Officers.
· The Program and Project Managers.
· The Small Businesses Specialists.
· Small and large businesses.
· The Agency and industry attorneys.
· The acquisition leaders at all levels in the organization, particularly those with front line responsibilities to guide the acquisition workforce daily.
Procurement policy lives in the real decisions made every day by real people. THAT....that's the ground zero of the RFO and will determine success or failure.
As an acquisition leader, I rarely acted on the strong initial push or any urge to switch courses right away when the FAR changed. It wasn't resistance. I wanted to understand the problem that the FAR was trying to solve. And I wanted to see how to best tie changes into my critical thinking and decision-making process. Then, it was about helping others do the same.
How did it make my analysis and decision process more solid but still ease my burden?
That's why I'm not going to focus on the size of the FAR. I want to focus on if we understand why the procedures that disappeared existed in the first place. Those are two completely different conversations. And I think only one of them tells us whether the FAR Overhaul will ultimately succeed.
What is Coming Next -- Article Two: What Does "Nonstatutory" Really Mean?
One of the phrases that shows up in every conversation and briefing about the RFO is nonstatutory requirements. Now at first glance, it seems self-explanatory, but I'm not sure it is.
In the next article, I'll try to unpack that phrase and explore why understanding it may be one of the keys to understanding the entire FAR Overhaul.
Watch for it here.
-------------------------------------------
