The FAR rewrite is more than just updated rules

Guest:	Emily Murphy
Title:	Former administrator for the General Services Administration
Summary:	We are now starting to see some of the changes to the FAR being implemented in real time. There of course still many questions to be answered during such a large transition phase.

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Interview transcript

Eric White Let’s start in that FAR rewrite. More is coming out from that. We’re starting to see some cases develop from there. And we’re starting to get some clarity, if you want to call it that on what of the marching orders for what is kind of a new acquisition workforce due to the you know, just the necessity because of the workforce reductions. From your view, where do things currently stand?

Emily Murphy So if you remember, this all sort of kicked off last year. April, we got the executive orders saying we’re going to rewrite the FAR. We’re going take a whole new approach to government contracting. They started putting out those model deviations last summer. They completed the model deviations before September 30th, and then things sort of went silent. So last week on the 19th of June, we ended up hearing they’re getting the first four FAR cases, which encompassed about 17 parts of the FAR that came out with its proposed rules. So this is the first chance we’ve got to actually go through a traditional rulemaking process. And it’s exciting because it means we’re actually making progress towards getting what’s been done by deviation into a normal process so that we’re going to get to a new state of normal around the regulations. I have to give the FAR Council credit. Also it was one of the things they did that I thought was really well done is on the acquisition.gov website, they put in a, ‘we said, you did.’ So they took the comments they got on those deviations and said, all right, we heard you on this. This is why we made the changes in those proposed rules. And so they put some additional information out there. One of them, for example, is just in the very beginning that said originally that each of the FAR cases that they were going to come out with it, they thought that everything should expire in four years and you should be constantly revisiting it. And they came back and said okay, no, we’re not going to do that anymore. So they pull it out case by case, part by part, and say, here’s what we listened to you all on and here’s, what we did. The other interesting thing they did was they pulled in some old FAR cases that hadn’t really made it all the way through the process. For example, there was one from 2017 on CUI. It triggers a lot of the information that’s going on with CMMC over at the Department of War on the CUI policies coming out of GSA, on the old Section 889, which you’re calling it old, that’s from six years ago, Section 889 on telecom, the Kaspersky information, pulls it all together into one part and gives a new set of proposed rules. And it’s interesting because they mainly defer to the CMMC rules, but the CMMC uses NIST version 2, whereas GSA was using NIST Version 3. In the FAR case says, well, we’ll use Version 3 when DoD says to, or DoW says to. And it says, all right, we’re going to do the, what’s the period for notifications? Is it three days? Is it one day? And it, again, defers the Department of War in the three days, but seems to leave it open for agencies to come in and have a lower reporting period. So if we’re looking to standardize, this might be an area where companies might want to be commenting and looking at this and trying to really understand how it’s going to apply and how much uniformity are we going to get across the contracting community. Also, if we’re looking at CMMC, you’ve seen over in Congress with the House and the Senate have been looking at, how do we help companies comply with things like CMMC? And they’ve been looking at that from a Department of War standpoint. No one’s really looked at it from a civilian agency Do we have the 3PAOs, the third party authorization groups in place to do this kind of certification, the verifications? So it raises a lot of process questions going forward. It’s going to be really interesting to see how this rulemaking develops.

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Eric White Yeah, it seems as if there’s so many unique set of circumstances for each agency. And as you mentioned, we’ve already had those workforce reductions that is causing some internal troubles there just because it takes a while to get new acquisition workers up to speed. But while getting them up to speed, there are also these model deviations. I mean, how do you navigate through what has been, you know, a tough transition so far?

Emily Murphy And I’ll say FAI, the Federal Acquisition Institute, Defense Acquisitions University, the FAR Council did a really nice job of when they put out those model deviations, trying to put out a lot of just-in-time training. They had their practitioner album. They had a lot information. But the amount of training you want to do on a model deviation or even an implemented deviation is probably not the full extent of training you’d want to on a fully implemented new regulation under the full process, so once the FAR case is finalized. So we’re in what, I was talking to Polly Hall at GSA and Joni Newhart from the Office of Federal Recruitment Policy last week, and they were calling it the messy middle. So we’ve got the deviations out there, and we know sort of a general direction of where we’re going. We’ve had some additional executive orders on things like commercial acquisition and fixed price acquisition. So those are gonna be integrated in. And now we have these FAR cases coming out and the proposed rules. So they’re not gonna wanna go to do a whole new set of training on proposed rules, they’re going to wait until they get to final rule. So how do you, you know, right now you’d be training people on the deviations, which might be different from agency to agency. For contractors, this is an issue as well, because it’s not just the acquisition workforce and the agencies that have to adopt and adapt to these rules. But at the same time, they’ve got to be planning ahead for, okay, if this is where the FAR is going, how are we going to be ready to implement that? And when is that going to be effective?

Eric White Seems as if yeah, it’s the FAR’s time to, it’s moved out of its parents house, right? It doesn’t know. It’s a lot of stuff on the table right now.

Emily Murphy It is that messy middle and I’ll give you an example with a reduced workforce. There’s a lot of promise behind AI and using AI tools to supplement the workforce, make them more efficient. But you can’t really train AI until you’ve decided what rules you want it to follow. So if you want AI to be following the new part 40 that’s proposed, you’re going to need to train it on that rather than training it on the old set rules and until we’re there. there’s going to be more muddling along, I think.

Eric White Speaking with former GSA administrator Emily Murphy. And yeah, while we have you, I wanted to touch on something a little more mainstream, and that is the ongoing updates going to the reflecting pool. Obviously, not going to ask you to comment on that since you’re not involved whatsoever. But you know, when you have a project like this that is front-facing, that the American public can see the updates and upgrades happening in real time and there are questions in the back side of, you know, who’s doing the actual work? How is the contract working? What agency is actually controlling this project? I’m curious to get your experience in that as you had a couple just in your last few years with GSA with the first Trump administration. I’m just wondering to get your thoughts on that

Emily Murphy Yeah, it’s a really interesting way that the federal space operates, especially in the national capital region. So if you think even about the White House complex itself, the West Wing is primarily managed by GSA, but then parts of it are operated, the mess is operated by the Navy. The Situation Room is a GSA space, but it’s operated by the intelligence community. The West Wing itself though, it tends to be a GSA building. But then you go outside of the West Wing proper, and there’s an MOU that goes back and forth between the executive residents, the National Park Service, GSA, that went down to like what brick on the curb is who’s responsibility? And it was always being renegotiated because first and foremost, you need to keep the president safe, and then you need make this space operational. And so what’s the most effective way to do it? So there’s a lot of moving pieces in all of this, and when it seems like it would be obvious that contracting would be done in one place. It’s not always obvious. It doesn’t always work that way. Another example I’ll give you is the tower at the old post office, which if you remember back in the first administration, that was the Trump Hotel. It’s now a Waldorf Astoria. But at the time, that tower actually still is managed by the National Park Service and we had a government shutdown while I was there. And one of the issues that came up was, well, why is that still open? Everyone thought there was some great story behind why it was still open. Why was the, you know, why was the tower still open? The honest answer was that it was an MOU between whoever the lessor of the hotel was and the national park service saying that because it was being paid for with not-appropriated funds, it was going to remain open. So the story is not always as exciting as people think it’s going to be. It’s usually a lot of people trying very hard to follow a lot of rules to get the right outcome.

Eric White Yeah, and when it happens, and then, you know, political figures start getting involved, then design and architecture and project management start to get politicized. And people like yourself find themselves appearing popping up in discussions that you never thought you were going to be found. What was that like for you?

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Emily Murphy Oh, it was always fascinating. I still remember I had one senator who we were building courthouses in his state. And at the time he was like, just please do not build me an Apple store. He did not want a courthouse that looked like an Apple Store. And we had our normal design construction, the art and architecture program, how it was going to operate. And so we were trying to go through and make sure that his needs and his, you know, what he wanted was also following our process and our rules. And then if you recall, the president, at the end of the first administration, signed an order saying we’re going to change how we apply art and architecture. And then that got revoked in the Biden administration and then got re-implemented again now. So the question of what architectural standards are you using? Is it classical architecture? And what do we mean by classical architecture? The one question we frequently had was, all right, when you look around D.C., which buildings do you consider classical? There are very few that are truly classical, and a lot of the old executive office building, the Eisenhower building, no one had a problem with the architecture there, but that’s not classical architecture. It’s Beaux Arts Second Empire architecture. So what exactly is it? Trying to get as specific as possible, get people to talk with the same vocabulary about what they’re looking for in design and how they want that to play out. We had the same problem with the Saint Elizabeth campus where we’re at the Department of Homeland Security. There was an enormous effort to maintain the historic character of that property. But you also discover that when some of the buildings were built by patients who had no background in construction, that there were a lot more issues that we had to go under the headquarters building, put a new foundation in. The facade around the main building now. Has another wall inside of it to support it, which makes some of the rooms sort of narrow because in order to keep that facade, you had to build essentially a building inside of a building. And so how do you make those trade-offs where you wanna protect the past, but you also wanna have a fully functional space that meets the needs of the department or agency that’s gonna be there, not just in the short term, but in the long term as well?

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