GAO Completes Review of DFARS Rulemaking Procedures

The Government Accountability Officer has issued a final report entitled “Department of Defense: Acquisition Rulemaking Practices.” For the April 17, 2015, report (GAO-15-423R), GAO analyzed 279 final and interim DFARS rules published in the Federal Register between 2010 and 2014 to determine the frequency with which the rules had been issued without prior notice and comment and for common themes and patterns to determine the most common justifications for issuing rules without prior notice and comment.

41 USC 1707 generally requires DoD to issue a proposed rule for each rulemaking that provides not less than a 30-day public comment period.  However, DoD can waive the requirements if it determines “urgent and compelling” circumstances make compliance with the requirements impracticable. In those instances, DoD issues a temporary interim rule that provides at least a 30-day public comment period.

Of the 279 rules reviewed, 139 were issued without prior notice and comment before they became effective. DoD determined 90 of the rules were either non-substantive final rules or technical amendments. The remaining 49 rules had “urgent and compelling” circumstances and were issued as interim rules.

GAO’s review identified two primary justifications for waiving the public comment requirement. For the 49 DFARS rules issued under “urgent and compelling” circumstances, the most frequently cited justification was acquisition requirements needed to be addressed immediately or within a short-time frame to comply with a statute.

Another 49 rules were not subject to public comments because DoD determined the rules were non-substantive or non-significant. DoD stated that 46 of the rules did not have significant effects beyond DoD’s internal operating procedures.

The remaining 41 rules were technical amendments for which DoD did not provide justifications in the published rules, but which it also deemed to be non-substantive or non-significant.

GAO made no new recommendations in the report.

For more information, see the full report.

About William Van Huis

Bill Van Huis is a Senior Writer/Analyst for Wolters Kluwer Law & Business who tracks and analyzes new regulations impacting federal government contracting. He also follows court decisions involving bid protests and contract disputes. You can find his work in WK publications like Government Contract Reports and the FAR and DFARS Matrix Tools. Bill is a Certified Professional Contracts Manager, and he has a law degree from Southern Illinois University, where he graduated summa cum laude. Prior to joining WK, Bill worked both inside and outside state and local government in the areas of procurement and municipal finance. Bill also worked as a staff attorney for the Illinois Supreme Court.
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