Wednesday, November 6, 2019

Improving Agency Guidance Documents

Yesterday we reported on a new Executive Order (EO) rescinding a previous EO that gave incumbent employees the right of first refusal when a successor contractor takes over on a service contract (see New Executive Order Rescinds Rules on Offering Incumbent Employees Right of First Refusal). There have also been two other recent EOs that will be of interest to Government contractors. Both are aimed at reigning in executive agency regulatory powers. We will discuss one today and the other tomorrow.

Agencies adopt regulations that impose legally binding requirements on the public. The Administrative Procedure Act (APA) generally requires agencies, in exercising their responsibility, to engage in notice-and-comment rule-making to provide public notice of proposed regulations. This allows interested parties to have their concerns and comments considered prior to final regulations.

Agencies may clarify existing obligations through non-binding guidance documents, which the APA exempts from notice-and-comment requirements. Yet agencies have sometimes used this authority inappropriately in attempts to regulate the public without following the rule-making procedures of the APA. The new EO notes that even when accompanied by a disclaimer that it is non-binding, a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply. Sometimes the public has insufficient notice of guidance documents, which are not always published in the Federal Register or distributed to all regulated parties.

Under this new EO, agencies must develop processes and procedures for issuing guidance documents. These policies and procedures must, at a minimum, (i) clearly state on each guidance, that it does not bind the public (except as authorized by law or incorporated into a contract), (ii) provide for the public to petition for withdrawal or modification, and (iii) provide for a period of public notice and comment if the guidance is considered significant. Note, the term "significant guidance is defined in the EO).

DoD contractors are probably aware of the "DOD Procedures, Guidance and Information document; 400 pages of guidance to supplement the FAR and the DOD FAR Supplement. This document would presumably be an example of the type of guidance called out under this EO.

The full EO can be accessed here.

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