On April 15, the new Administration issued a widely expected and anticipated executive order (EO) on “Restoring Common Sense to Federal Procurement.” The EO cites Senate reports and congressionally created procurement advisory panels that have bemoaned how complex and burdensome procurement regulations have become, and how this complexity is a barrier to entry and a hinderance to efficient procurement. The EO directs the Office of Federal Procurement Policy and the Federal Acquisition Regulatory (FAR) Council to review the FAR to determine which provisions are required by statute, and, for those provisions not required by statute, whether they are necessary to effectuate efficient procurement or enhance national security. The EO requires action within 180 days. The Coalition for Common Sense in Government Procurement (Coalition) has provided a draft review of the statutory basis for numerous FAR Parts and FAR clauses, available on the Coalition’s Government Procurement Efficiency List webpage.
The EO also provides that for FAR provisions that are not required by statute and that are not rescinded or removed, and for any new forthcoming FAR provisions that are not required by statute, the FAR Council should consider whether the provision should sunset in four years. This is an interesting and beneficial new aspect to FAR rulemaking, which will require the FAR Council to periodically examine whether non-statutory FAR provisions are working as intended, whether they need to be tweaked, or whether they have served their purpose or have been overcome by events and can be removed.