Federal Acquisition Regulatory Council

Federal Acquisition Regulatory Council
Name	Federal Acquisition Regulatory Council
Formed	1984
Jurisdiction	United States federal procurement
Headquarters	Washington, D.C.
Parent agency	Office of Management and Budget; Department of Defense; General Services Administration; National Aeronautics and Space Administration

Federal Acquisition Regulatory Council is a statutory interagency body charged with coordinating the creation and revision of procurement regulations for the United States Federal Acquisition Regulation. The Council operates at the intersection of executive branch offices including the Office of Management and Budget, the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration, working with congressional committees such as the United States Senate Committee on Homeland Security and Governmental Affairs and the United States House Committee on Oversight and Reform. Its actions affect major programs like the Defense Acquisition System, the Air Force Materiel Command procurements, and civil agency contracting across agencies such as the Department of Veterans Affairs and the Department of Energy.

History

The Council traces its statutory origins to amendments enacted in the Federal Acquisition Streamlining Act of 1994 and formalized procedures influenced by earlier statutes including the Competition in Contracting Act of 1984 and the McNamara–O'Hara Service Contract Act. Its antecedents include policy boards within the Office of Federal Procurement Policy and initiatives associated with the Nixon administration procurement reforms and the Carter administration efforts to centralize acquisition policy. Throughout the Clinton administration and the George W. Bush administration, the Council adapted to changes stemming from incidents such as the post-September 11 attacks surge in defense contracting and congressional oversight following controversies involving the Iraq War contracting. Reforms in the Obama administration and the Trump administration further shaped the Council’s role amid legislative developments like the Federal Acquisition Streamlining Act implementations and the National Defense Authorization Act provisions.

Organization and Membership

Statutorily, membership includes senior officials from the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration, often represented by the Under Secretary of Defense for Acquisition and Sustainment, the Administrator of General Services, and the Administrator of NASA. The Director of the Office of Management and Budget exercises oversight functions and interacts with the Council through the Office of Federal Procurement Policy. The Council convenes advisory panels drawing members from institutions such as the American Bar Association, the National Academy of Public Administration, and academic centers like the Harvard Kennedy School and the George Mason University Antonin Scalia Law School. It also liaises with inspectors general offices such as the Department of Defense Office of Inspector General and the Government Accountability Office during rule development.

Responsibilities and Authority

The Council’s core responsibility is to promulgate regulatory guidance and to resolve interagency disputes over procurement policy that shape the Federal Acquisition Regulation system. Its authority derives from statutory language in title 41 and title 48 of the United States Code and is implemented in coordination with the Office of Federal Procurement Policy Act frameworks. The Council issues policy interpretations affecting programs like the Defense Logistics Agency contracts, NASA mission procurements, and major civil agency acquisitions implemented by the General Services Administration Schedule. It also establishes standards influencing contract types used by the Small Business Administration and procurement practices overseen by the Federal Trade Commission in relation to competition matters.

Rulemaking Process and Publications

The Council follows administrative procedures that intersect with the Administrative Procedure Act notice-and-comment requirements and coordinates publication activities in the Federal Register. Its outputs include proposed rules, final rules, interim rules, and regulatory guidance that modify the Federal Acquisition Regulation and agency acquisition supplements such as the Defense Federal Acquisition Regulation Supplement. The Council’s rulemaking process engages stakeholders including trade associations like the National Defense Industrial Association, the Professional Services Council, and the National Small Business Association, as well as legal commentators from the American Bar Association Section of Public Contract Law and scholars from the Brookings Institution and the Heritage Foundation. Its publications are subject to judicial review in venues such as the United States Court of Federal Claims and the United States Court of Appeals for the Federal Circuit.

Relationship with FAR and Federal Agencies

The Council serves as the principal body coordinating revisions to the Federal Acquisition Regulation and resolving inconsistencies among agency supplements such as the Federal Acquisition Regulation System entries maintained by the Department of Defense and NASA. It mediates between agency acquisition executives including the Assistant Secretary of the Army for Acquisition, Logistics and Technology and civilian procurement leaders at the Department of Health and Human Services and the Department of Homeland Security. Through interagency memoranda and policy memoranda, the Council aligns FAR changes with statutes like the Buy American Act and the Trade Agreements Act, and with mission-driven requirements from agencies such as the Environmental Protection Agency and the National Institutes of Health.

Criticism and Legal Challenges

The Council’s actions have spawned litigation and critique from parties including contractor consortia, trade groups such as the Chamber of Commerce, and advocacy organizations like the Project on Government Oversight. Challenges often allege procedural deficiencies under the Administrative Procedure Act or substantive overreach conflicting with statutes like the Competition in Contracting Act. Judicial decisions from the United States Supreme Court and appellate panels have shaped the Council’s deference standards, while congressional hearings by the House Committee on Oversight and Reform and the Senate Committee on Homeland Security and Governmental Affairs have scrutinized its transparency and responsiveness. Academic critiques from law faculties at Yale Law School and Georgetown University Law Center have highlighted tensions between centralized rulemaking and agency-specific flexibility.

Category:United States federal procurement