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GovCon Expert Alan Chvotkin: 2021 Federal Acquisition Regs Year-in-Review

Alan Chvotkin, a partner at Nichols Liu, has published his most recent article as a part of Executive Mosaic’s  GovCon Expert program.

Previously, GovCon Expert Alan Chvotkin compared and contrasted the FAR COVID Procurement Rule and the OSHA Emergency Temporary Standard to ensure there’s an understanding between the two and their difference.

In his latest piece, Chvotkin provides a look into the acquisition regulations and rules and policy changes that the federal and GovCon industries have undergone in the last twelve months as the nation underwent a technical shift and a change of administration.

“There is a strong likelihood we’ll have the continued accelerated pace of acquisition regulations in 2022. Many of the Biden Executive Orders require acquisition regulations that have yet to be published but are in the queue.

The Fiscal Year 2022 National Defense Authorization Act, signed into law on December 27, 2021, has more than eighty acquisition policy provisions, many of which will require FAR or DoD-unique regulations. “

You can read Alan Chvotkin’s full GovCon Expert article below:

2021 Federal Acquisition Regs Year-in-Review

By: Alan Chvotkin

Despite the pandemic, the January 20, 2021 Inauguration of and transition to the Biden Administration, and even with most federal government employees working remotely, it was still a busy and impactful year for new federal acquisition regulations.

I’ve been tracking and compiling federal acquisition policies, laws and regulations for almost thirty years. Through pandemics, presidential transitions, weather calamities and even long periods of government shutdowns because of lapses in appropriations, the federal regulatory machine continues to grind out procurement rules, making both significant and technical changes to the way the Federal government acquires the goods and services it needs to operate. 2021 was no different.

To be fair, many of this year’s procurement rules flow directly from statutory changes or Executive Order direction; a few are from the long-standing and never-ending effort by agencies to keep their agency-unique acquisition supplements current with changes to the Federal Acquisition Regulation (FAR).

The first federal acquisition rule of 2021 issued by the Trump Administration was on January 6, 2021. DFARS Class Deviation 2021-O0001 (Rev 1) made the November 2020 class deviation of the same number inoperable because of the December 2020 nationwide federal court injunction against certain provisions of President Trump’s “Combatting Race and Sex Stereotyping” Executive Order and OFPP’s implementing guidance.

The last acquisition rule issued by the Trump Administration was on January 19, 2021, a Federal Acquisition Circular to strengthen domestic preferences under the Buy American Act and President Trump’s Executive Order 13881.

On the first day of the Biden Administration, the White House chief of staff issued the now common memorandum to freeze all pending regulations until a decision was able to be made by a Biden appointed official on whether to continue, repeal or amend covered rules.

The first published acquisition regulation under the Biden Administration was a proposed rule, published on January 21, 2021, by the Veterans Administration to simplify procedures for health care resources through changes to various solicitation and contract clauses.

The last federal acquisition rule of 2021 was FAC 2022-03, published on December 30, 2021. It included a final rule amending the FAR to incorporate revised thresholds for application of the WTO Procurement Agreement and Free Trade Agreements, as previously determined by the U.S. Trade Representative.

All told, there was a total of 82 final, interim, proposed and advanced notice acquisition rules issued in 2021, not counting technical corrections. Twenty-two federal departments and agencies published acquisition rules in 2021, not counting FAR Council and DAR Council publications.

While many of the federal agencies that issued rules are “traditional” acquisition rules issuers, such as DoD, GSA, NASA and the Small Business Administration, there were also acquisition rules published by the newly created Federal Acquisition Security Council and by the Office of Personnel Management. The Labor Department published twelve sets of regulations governing labor policy and federal contract compliance, a reflection of the priority the Biden Administration has placed on improving private sector employees’ working conditions and on employer compliance.

The FAR Council published seven Federal Acquisition Circulars, often containing multiple rules within each. In addition, the FAR Council published nine single-topic regulations. The DoD Defense Acquisition Regulation (DAR) Council published 24 DoD-specific regulations, in addition to twenty DFARS class deviations.

During 2021, President Biden issued 77 Executive Orders, the most of any president in their first year in office since 1994. By comparison, President Trump issued 55 Executive Orders in his first year. Many of the Biden Executive Orders directed federal agencies to issue implementing rules, including procurement rules.

Many of these Executive Orders, from climate change to labor policy, had or will have a significant impact on government contracting and on government contractors – and resulted in some acquisition rules already being published; many more acquisition rules are expected to be issued in 2022, based on the timelines for action included in many of the Executive Orders.

Class Deviations Equate to Final Rules 

Again this year, the Federal Government used “class deviations” as a means of making immediate changes to the acquisition regulations without following the traditional “notice and comment” process, yet these class deviations have the full force and effect as final rules. In 2021, there were 83 class deviations published, including revisions to previously issued class deviations.

Of these, the DAR Council led with twenty, while GSA was second with 13. Several of the class deviations issued by federal agencies were virtually identical and related to implementation of the contractor COVID vaccine mandate – including issuances to suspend enforcement of the contractor COVID vaccine mandate acquisition rules because of the nationwide injunctions issued by a Georgia Federal court in early December 2021.

Most class deviations are not published in the Federal Register although, to its credit, GSA has been maintaining a readily accessible website where these governmentwide, but agency specific, class deviations are referenced. It takes some extra detective work to find the agency-unique class deviations on each agency’s website that do not involve governmentwide policies.

Outlook for 2022

There is a strong likelihood we’ll have the continued accelerated pace of acquisition regulations in 2022. Many of the Biden Executive Orders require acquisition regulations that have yet to be published but are in the queue.

The Fiscal Year 2022 National Defense Authorization Act, signed into law on December 27, 2021, has more than eighty acquisition policy provisions, many of which will require FAR or DoD-unique regulations. It is also likely that President Biden will continue to use Executive Orders to further his policy objectives, particularly with the evenly divided Senate and the gridlock on legislation likely to continue into 2022 while approaching the November mid-term congressional elections.

I will be tracking and cataloging these acquisition regulations and reporting on them regularly. I welcome your comments.

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