What Does Nonstatutory Really Mean? (Weathering the RFO Series)

In my last article, I suggested that one of the biggest misconceptions surrounding the Revolutionary FAR Overhaul (RFO) is the idea that the 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 brings us to one of the words that appears throughout the RFO.

Nonstatutory.

It sounds like a legal term. But in reality, it's become one of the most misunderstood words in the current conversation.

At first, I thought it was pretty straightforward. Like most people, the first time I read that the FAR Council intended to remove nonstatutory requirements from the FAR, my reaction was pretty simple. “That makes sense.” If Congress didn't require it, why should it stay? Then I caught myself. That question assumes something that isn't necessarily true. It assumes that if Congress didn't specifically require a procedure, the procedure probably isn't very important. After spending most of my career implementing procurement policy rather than simply reading it, I'm not sure that's always the right conclusion.

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Let's Separate Those Two Very Different Questions

One of the things working as a Contracting Officer in Federal acquisition 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 and questions very carefully.

In this case, the first question is:  Did Congress require this?  That's a legal question.

The second question is: Why did this procedure exist? That's an acquisition question.

Sometimes the answer to both questions is the same.

Congress required it. Case closed.

But very often 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 get there consistently and effectively across Government.

That's an important distinction.

Congress rarely tells Contracting Officers exactly how to conduct acquisition planning. Or exactly how to perform market research. Or exactly how to document a responsibility determination. Congress establishes policy. The FAR has historically translated that 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.

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How FAR Actually Evolves

One thing I wish more people understood is that the FAR didn't appear one day as a finished document. It just evolved. Every acquisition professional has lived some part of that evolution.

--Congress passes legislation.

--The FAR Council implements it.

--GAO issues protest decisions that clarify how the rule should work.

--Courts interpret statutory authority.

--Inspectors General identify recurring weaknesses.

--Agencies develop better practices.

And eventually, some of those practices become regulatory language. Not because Congress required every sentence. Because the acquisition system learned something. That's why I hesitate whenever someone says, "It's only nonstatutory."

Maybe. (Insert my shoulders shrugging.) But that's not the whole story.

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Think About It This Way

Imagine 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, and 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 proceed with FAR implementation.

Those entities lead and coordinate the writing of the FAR changes to include parameters and PROCESSES for implementation. These working groups of acquisition professionals from across government talk about how their interpretations and context can change based on the words used in writing the FAR changes. And that is why process and procedure start to become important. Context is everything. The words are chosen carefully and the decision to step through a procedure is not taken lightly.

Over time, once rules become final and their processes were implemented, those processes were then tied to other processes – existing, changing, and new – and then you get a series of procedures for things like market research (what determines its enough), acquisition planning (documenting the thought process behind the acquisition), bundling analyses (to ensure it can withstand scrutiny), and documenting acquisition decisions (to ensure the Government followed the process and procedures it said it would along with being compliant with the regulation and laws).

See how those processes and procedures help create consistency across government?

They are not the POLICY. They are how policy gets implemented. And that doesn't automatically mean every procedure put into action should remain forever. However, it does suggest we should 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 enough historical knowledge in place with those that remain with the requisite experience in making business decisions for the Government and its unquie considerations of public stewardship over profitability to "get it" without many of these processes and procedures still in place.

Was the point to clear the "old wood". I'm not naive enough to think that isn't the case. I most definitely was and is. But as we see -- pool liners, systems changes, running low on munitions, and a parasite causing real havoc all have real consequences.

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This Isn't an Argument Against Simplification

Nothing here should be taken as an argument that every existing FAR provision deserves to stay. Frankly, it is the exact opposite. I've worked with the FAR long enough to know that it contains language that could be simplified, reorganized, or removed without affecting procurement outcomes. (How I wished I could have been part of the rewrite because I would have taken a few parts much further.)

The acquisition workforce has been asking for a more readable and user-friendly FAR for years. Industry also. In part, the RFO is responding to that need.  And I think that part of the RFO is worthwhile.

But I go back to -- the question isn't whether simplification is good. The question is how we distinguish between simplifying regulations and simplifying implementation. They aren't always the same thing but those who have been sitting in policy while looking at work from on high often think they are. They don’t remember how process and procedure also drive faster and better decision-making along with more risk taking because a Contracting Officer can fall back on it.

The question I keep coming back to while reading the currently released FAR cases are the same ones over and over.

Now that “X” has disappeared, what function disappears with it?

Does that function still matter or has it moved somewhere else?

Will Contract Specialists and Contracting Officers still have the same tools available, and if not, how will agencies implement the statute consistently?

(Heck, we all know that agencies and even offices within agencies had a hard enough time WITH processes and procedures being consistent.)

But do you notice that's missing in those questions? I'm not asking whether the provision was statutory. I'm asking what it helped the acquisition workforce accomplish.

To me, that's the most useful conversation as these rules play out. It should be front of mind in our comments, too.

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From the Contracting Officer's Chair

If someone had walked into my office twenty years ago and said, "Shauna, this requirement isn't statutory."

My next question probably would have been, "Okay...but why is it there?"

Not because I was defending regulations but because I was trying to understand whether removing that requirement would actually change 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 yet still be 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.

I think understanding how to sort those out and not throw the baby out with the bathwater is exactly the responsibility we have as we evaluate the RFO as contracting professionals. We must be honest that, in many cases (and you know you did this) having process to fall back on actually helped with decision-making, efficiency, and consistency.

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My Perspective

I’m interested in understanding the role that “requirement” played in the acquisition system, whether statutory or nonstatutory. Those two categories deserve very different conversations. Talking only about nonstatutory information that remains short-circuits the discussion we need to have. Statute tells us where a requirement came from, but experience helps us understand why it mattered. And why is might still be needed. I think we need both perspectives as we move forward reviewing proposed RFO changes.

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What's Coming Next -- Article Three: If Congress Sets the Destination, Who Builds the Road?

One of the first places this conversation becomes very 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.

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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

Over the past several months, one question has followed me almost everywhere I've gone and on most every phone call.

"Shauna, what do you think about the Revolutionary FAR Overhaul?"

It's a fair question. And I don't answer it. At least not right away.

Instead, I usually ask a question of my own.

"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 isn't a single regulatory change. It's a fundamental reconsideration of how the Federal Acquisition Regulation should be organized, what belongs in it, and perhaps most importantly, what doesn't.

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.

And yes, 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 us all to go back to this one much simpler question:

‍What problem is the FAR Council trying to solve?

I've learned over the years that 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. Some were brought about to force consistent behavior and interpretation. And yes, many stayed in 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 FASA and before.

The biggest challenge is knowing which is which. Which were put into place for what reason.

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 we go from here.

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Let's Start in a Different Place

One thing I've noticed as I've listened to conversations about the RFO is that many of us instinctively started with the FAR itself. We started asking questions like:

-- "Why did they delete this section?"

-- "Why did they move this guidance?"

-- "Why are they shortening this part?"

Those are reasonable questions. I'm just not convinced they're the first questions we should ask anymore. So I think we should start somewhere else. And that place with with Congress.

-- Congress, not the FAR Council, establishes federal procurement policy.

-- Congress decided that agencies should maximize practicable opportunities for small businesses.

-- Congress established full and open competition as the standard for federal contracting unless a statutory exception applies.

-- Congress created procurement integrity requirements, commercial acquisition authorities, and the socioeconomic programs that have shaped today's procurement landscape.

The FAR Council nor the FAR itself created those policies. FAR is how the rules Congress creates are implemented. That distinction may sound subtle, but I believe it's the key to understanding the RFO. The RFO doesn't rewrite the Small Business Act, the Competition in Contracting Act, or the Office of Federal Procurement Policy Act....or any others. Those statutes remain exactly where they've always been without exceptions, short of an Executive Order. Instead, I'm hoping the FAR Council is asking a different question:

‍What's the best way to implement those laws through regulation?

Throughout the proposed rulemaking, the FAR Council explains that its objective is to retain statutory requirements and those 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 without changing the underlying statutory framework.

Once I started looking at the RFO through that lens, the conversation changed for me. I stopped asking, "Why did they remove this?" And I started asking, "How will agencies accomplish the same objective now?"

To me, that's the more interesting and important question. Process edicts written into the FAR -- by design -- 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?

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Why This Matters

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 reforms generate months of debate before settling quietly into the background with very little long-term impact.

I’m taking a step back now and resisting the temptation to label the RFO either a success or a mistake before I talk and work through the changes made from the lens of the Contract Specialist, Contracting Officer, Chief of Contracting, COR, and Project Manager who has lived and been tasked with implementing and guiding others through major acquisition reforms over the years. I'm using careful analysis and the experience of decades of best practices, lessons learned, “wish I could haves”, ... thinking through it all with the patience and insight to how acquisition policy gets implemented and absorbed within the workforce, and their behavior as it drops and becomes part of the new normal.

This is the lens it deserves.

Oh, there will almost certainly be changes that I think are dumb, or overdue. There may be others that concern me from the position of a small business advocate. And there will probably be a lot that fall somewhere in between. That's because procurement has never been about absolutes. It's 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.

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The Conversation I Hope We Can Have

If you're looking for someone to tell you the RFO is either the best thing that's happened to acquisition in decades or the worst, you probably won't find that here. 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 experience has taught me that good procurement decisions rarely begin with conclusions. They begin with understanding.

In each article in this series, I'm going to explore the questions I found myself asking as I read through the proposed rules.

-- What was Congress trying to accomplish?

-- What was the intent?

-- How has the FAR historically implemented that objective?

-- What is the FAR Council proposing to change?

-- Why does the Council believe the change is appropriate?

And perhaps -- most importantly --What might this mean for the people who actually have to use these regulations?

·        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.

This is important because procurement policy doesn't live in the Federal Register.

It lives in acquisition offices across the Government, where real people make real decisions every minute of every day as tax dollars fly out the door.

THAT....That....that's where the ground zero of the RFO is taking shape and will determine the future use and participation by industry.

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From the Contracting Officer's Chair

As an acquisition leader, I rarely acted on the strong urge to switch courses immediately upon policy changes. I wanted to understand the problem that the law or rule or FAR was trying to solve. I always wanted to see how I could tie changes into my business decision-making and critical thinking process I was already using as a Contracting Officer very successfully.

How did it make my analysis and decision process more solid but still ease my burden?  

Sometimes a new requirement looked unnecessary until I learned it had been added after a series of successful GAO protests. Sometimes a procedure that seemed cumbersome turned out to be the Government's best evidence that a statutory obligation had been met. And often enough, a change in the regulation or a new regulation over time become little more than institutional inertia. Then there are the ones that just are what they are and you suck it up and keep plowing forward.

The point is I learned not to judge a requirement by its age or by the number of pages it occupied in the FAR. I tried to first understand its purpose.

-- Looking at the big picture.

-- Looking at the small picture.

-- Looking at it from the lens of industry.

-- What could I learn from the change?

-- What did it do for the overall mission?

-- How did it support stewardship of taxpayer funds?

That's the mindset I'm bringing to this series.

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My Perspective

As I finished reading the first group of proposed RFO rules, one thought stayed with me.

I don't think the most important question is whether the FAR becomes shorter.

I think the more important question is whether the acquisition workforce still has the tools it needs to faithfully carry out the procurement policies Congress established that form the foundation of the regulation itself.

Sometimes simplifying a regulation removes unnecessary burden. Sometimes it also removes a process that quietly helped agencies demonstrate compliance with the law. The challenge and the opportunity is knowing the difference.

That's the conversation I hope Weathering the RFO encourages. Not because I expect everyone to agree with my observations but because I think the acquisition community benefits when we take the time to understand not only what changed, but why it matters.

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What is Coming Next -- Article Two: What Does "Nonstatutory" Really Mean?

One of the phrases that appears throughout the Revolutionary FAR Overhaul is nonstatutory requirements. Now at first glance, it seems self-explanatory, but I'm not sure it is.

In the next article, we'll unpack that phrase and explore why understanding it may be one of the keys to understanding the entire Revolutionary FAR Overhaul.

Watch for it here.

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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

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