"…the problem that underlies the issue is of profound professional importance: In an activity in which regulations govern the conduct of business, how does one read, interpret and apply regulations? How should one apply the FAR? Are there any reading practices, interpretational guidelines or standing rules of application that professionals ought to know?

We have seen the problem of proper regulatory interpretation and application arise time and again in this forum and have had some lively arguments in those regards. It is clear, at least to me, that reading the FAR is not like reading other texts, like novels, newspaper articles, scientific papers, or textbooks. But how is it different and how should we do it?"

These are all good questions. In my opinion, understanding and interpreting the FAR occurs through stages --

1) The introduction (i.e., "Welcome to your first day at work. Here, read this.")

2) Fear and Avoidance at all costs (i.e., ask someone - it's easier!)

3) A grudging acknowledgement that reading portions of the FAR may be of some benefit (i.e., someone gave you a crummy answer)

4) Realization that the FAR can be your friend (i.e., you win a protest.)

5. General enlightenment that you cannot due your job effectively without a better understanding of the FAR. (i.e, You lose a protest)

6. Reading and re-reading the FAR. (#!*#)

Not everybody makes it through all of the stages. Those who do have to deal with an illogical arrangement of information (who can tell me why Part 16 comes after Parts 14 and 15? Or why the test program for commercial items is found in Part 13 instead of Part 12? And isn't Part 25 -including DFARS Part 225- a real treat?)

I really don't know that understanding the FAR takes any special talent - it just takes a lot of perseverance, commitment and attention to detail. I've been working on it for years and feel like I've just scratched the surface.

By joel hoffman on Thursday, January 31, 2002 - 01:54 pm:

Part of the problem is in not knowing the source or background for a FAR topic. I often read the legislation and legislative history, Federal Register, OMB Circulars, etc. to determine the intent and reasoning behind "the words." happy sails! joel

By Dave Barnett on Thursday, January 31, 2002 - 02:32 pm:

Linda, I used to have the same feelings towards FAR Part 25 as you described in your post, that has since been superceded by all the preference changes made to FAR Part 19. Part 15 and the rules regarding certificates of current cost or pricing data really never bothered me, if the award amount (including options) was under the TINA threshold, I never bothered with the certificate issue. That's not to say that I can't see the confusion with the language as it's written, as a matter of fact what is being certified and why? Okay, offeror comes in with a $580,000 FFP proposal, I ask for payroll records, overhead makeups, subkr quotes etc. I get a DCAA audit. During discussions I disallow some overhead dollars pursuant to FAR 31.205 and we cut back some direct labor hours for a final agreed to fixed price of $560,000. I get the certificate and both parties walk away happy with the FFP deal, do I constantly monitor the contractor to ensure that no defective pricing issue arises, get real, nobody does, we're in a relatively low dollar FFP environment and I had a governmental audit. Same scenario only we agree to a price of $540,000, no certificate, but I still relied on that same data provided by the offeror/auditor in developing a negotiation position. That data is only judgemental whereas in the $560,000 scenario, the data I used is now certified as factual. In a firm fixed price environment I see little value added by the TINA requirements. Cost reimbursement is a different story of course.

By C Mercy on Thursday, January 31, 2002 - 03:38 pm:

Actually Joel has hit the nail......when I first started my career a KO i was working for suggested to me that the best way to understand and then interpret the FAR was to learn the underlining reason for the existence of the regs. I have always looked beyond the implementing rules and it has served me better than any other advice I ever got in this business.

By formerfed on Thursday, January 31, 2002 - 04:00 pm:

Linda,

I completely agree with your statement that learning the FAR comes in stages. I would also add that much of the reading in step 6 occurs for a different reason. That results from acknowledging that our prior understanding and memory may be wrong. For example, protest decisions impart a different or new twist to some matter, a disagreement with a coworker that sheds new light, or finding out from this forum our prior thinking is flawed. There are many things that occur that causes us to go back and look to see if we're right. Or stating it differently, seeing if there's another meaning to the words we know by heart.

By anon on Thursday, January 31, 2002 - 05:51 pm:

If an otherwise intelligent person requires "working on it for years and feel like I've just scratched the surface" for what is to be guidance in spending the public's money something is wrong with the FAR. English is a complex language with rich and varied meanings in individual words. One can see that clearly by comparing the number of words required to explain an English word in an English dictionary compared to words in most other languages. Talent is required to plainly state what is actually meant using plain English.

The FAR writers have a tough task, but I don't think we have concentrated enough on having the writing skill levels needed to convert often obscure legalese and intent from Congress into something a working specialist in contracting can quickly understand. I would not be too surprised to find some FAR writers agree. The government needs to put a bit more effort in finding, training and retaining some real talent in this area.

By joel hoffman on Thursday, January 31, 2002 - 05:57 pm:

I also sometimes forget that DOD (construction, at least) probably has a different negotiating perspective from non-DOD. We've always required detailed breakdowns for modifications(with the usual exceptions), because of contract clauses, independent from the TINA requirements, so 15.4 has been treated as a secondary requirement. I think we have separate clauses for breakdowns of proposals for new work, too but don't have time to look for them, now.

The point is that without an understanding of the background or due to different perspectives, FAR is often not clear enough to totally understand. If one simply relies on the FAR, you won't get "far"! A one size fits all acquisition regulation when there are at least two divergent sets of authorizing legislation, is not perfect.

You MUST research the background and intent of the FAR, including your agency's supplements, to properly understand and apply it. happy sails! joel

By Charlie Dan on Thursday, January 31, 2002 - 06:21 pm:

How does one read, interpret and apply the regulations?

When I started in this career field, 29 years ago, I read the FAR to learn. I interpreted the FAR literally (as best I could). And I applied the regulations as a hammer, to tell requesters "NO!"

Then I began to realize that the organization had a mission, and the mission was pretty exciting (Air Force laser weapons program at the time). I began to read the FAR to research particular issues. Somewhere in this time, I began to believe I had the more frequently researched parts of the FAR memorized (yeah, a mistake). I interpreted the FAR to discover what COULD be done rather than what could not be done. And I applied the regulations in the manner that best supported the mission.

After a few years, a change of agency and several different jobs, I learned that my work would be reviewed by more than just my immediate boss -- in those years I became very, very familiar with auditors and congressional investigators. I started reading the FAR to prepare for interviews with auditors and responses to audit reports. I interpreted the FAR to support what I had done. When I knew in advance that something would be controversial, I actually would read the FAR to apply to a particular problem.

Entering the "sunset of my career," I read the FAR because I can't remember anything any more. I also read the FAR to help me get to sleep at night. Especially the ever-popular Parts 19 and 25. But the absolute best sleep-inducer is found in my agency regulations. I pull out Department of Energy Acquisition Regulation Part 952.227, and read through the contract clauses related to intellectual property. ZZZZZZZZZZZZZZZZZZ