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Regulatory Rigmarole: The Devil Is In The Details

Posted By Ann Sullivan, WIPP Chief Advocate, Wednesday, November 6, 2019
Updated: Tuesday, November 5, 2019

Advocacy comes in all forms. While the WIPP Advocacy Team focuses much of our attention on Congressional action, our work with agencies, especially SBA, is every bit as important. Staying vigilant on all fronts is critical to all businesses, large and small. 


As a WIPP Member, you probably already know more than the average person about regulations that impact small business owners – regardless of whether they are proposed, interim-final, or final rules. But, you probably don’t know exactly what that means or how they get to those stages in the first place. 

AnnSullivan

The Process of Rulemaking

 

The first thing to know is that proposed regulations are known as “rules” and the rulemaking process is lengthier than you might expect. When Congress passes a law, the agency then gets to work to implement it. The final product is a new regulation. To get from the passage of a law to a new regulation involves a number of steps by the agencies.  


An agency’s first step is to develop a draft regulation known as a proposed rule. Then, the agency sends the draft to the Office of Information and Regulatory Affairs (OIRA) for review. OIRA is tasked with circulating this regulation among other government agencies, taking into account this feedback. OIRA is a federal office that was created by Congress in 1980. In 1991, an Executive Order directed that the office would formally review all draft proposed and final rules before they were published in the Federal Register.


OIRA makes suggested changes and sends the proposed rule back to the agency. The agency then issues a proposed rule which it publishes on www.regulations.gov for public comment. The comment period is usually open for 60 days, although some only accept comments for 30 days. Comments are not limited to organizations like WIPP – anyone or any entity can provide comments on a proposed rule. 


The agency reviews the public input to revise a final product which typically takes another 60 to 90 days and summarizes its findings and issues a final rule. Done, right? Not quite. The final rule once again goes to OIRA for review – only when this approval process is complete can the new regulation be published as a final rule.


Need more information on the process? Download the SBA’s Office of Advocacy Basic Guideline to Rulemaking and Small Businesses.  


What WIPP Comments On

 

WIPP has commented on a number of important proposed rules on a variety of issues. By commenting on proposed rules, WIPP has the ability to shape the outcome of the regulation. The devil is in the details, so this stage of advocacy is, in many cases, as important as passage of the law. 


In 2019, WIPP submitted comments to SBA on a number of small business contracting rules ranging from the proposed WOSB/EDWOSB certification rule, to the rule implementing the Small Business Runway Extension Act. WIPP also submitted comments to the Department of Defense (DoD) on its proposed Cybersecurity Maturity Model Certification—a far-reaching cyber certification, which will affect every federal contractor and subcontractor.


Just last month, the Federal Acquisition Regulation (FAR) Council recently proposed an interim final rule that will amend the FAR to prohibit the federal government from procuring or obtaining, or extending or renewing a contract to procure or obtain, “any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system” in order to combat the national security and intellectual property threats that face the United States. 


WIPP recognized the wide-reaching importance of this rule and jointly submitted comments in response. It is important to note that the interim rule impacts ALL contractors — not just those that offer information and communication technology. Each contractor is responsible for determining whether telecommunications equipment and services will be provided under both new and existing contracts and orders. 


Learn more about FAR Council


Take Action Now


As we noted in our Advocacy Update last month, the FAR Council has issued a proposed rule to avoid using Lowest Price Technically Acceptable (LPTA) source selection criteria in circumstances that would deny the government the benefits of cost and technical tradeoffs in the source selection process. LPTA has been a long-hated acquisition pricing policy in the small business community. This rule specifically states that LPTA source selection criteria should be avoided for procurements for IT services, cyber security, systems engineering services, and others. 


Submit a comment on this proposed rule by December 2, 2019


Note: One part of the regulatory process to note— when the FAR Council issues a proposed rule it is listed with a “FAR Case” number instead of a “Regulatory Identification Number” (RIN).


It’s tough to keep up with everything as a small business – I know – I am one. That’s why membership in WIPP is critical to your bottom line – we follow and initiate the actions important to women-owned businesses.


Tags:  Advocacy  FAR  regulatory 

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