How to comment on a proposed rule
Before the government changes how it buys, it has to publish what it intends to do and let anybody say why that will or will not work. The agency then has to respond to the substantive comments in writing before it can finalise the rule. Almost nobody who actually does the work ever writes one.
a score with no reasons is a horoscope
Why a comment is worth anything at all
Rulemaking looks like a formality from outside and is not one. Under the Administrative Procedure Act an agency proposing a rule has to give the public notice, take comments, and consider them. When the final rule is published, the preamble contains the agency going through the substantive comments it received and explaining what it did about each one. Go and read the preamble of any recent final acquisition rule: it is pages of "one commenter noted" followed by either a change or a reason there was no change.
That is the leverage. Not that you get a vote, because you do not. That an agency has to write down, in public, why it disagreed with a specific operational objection from a company that builds the thing.
The other half of it is who does not comment. The comment files on acquisition rules are mostly trade associations, large primes with government affairs staff, and law firms. A machine shop, a staffing firm or a small integrator saying "here is what this does to a company of forty people, with numbers" is rare enough to be read carefully.
The whole process, end to end
- 1
Find the rules that touch your codes
A proposed rule is published in the Federal Register the morning it is issued. There are close to thirty thousand documents a year and no way on the government sites to ask which of them touch NAICS 332710. In the app, the rules screen is already filtered to your codes and sorted by the comment deadline.
- 2
Read the preamble, not the regulatory text
The rule itself is amendments to the Code of Federal Regulations and it is nearly unreadable in isolation. The preamble in front of it explains what the agency is doing and why, in English, and usually asks specific questions it wants answered. Those questions are an invitation. Answer them.
- 3
Check the deadline on the docket
The published notice gives a closing date. Deadlines get extended, and the original notice is not reissued when that happens, so the docket on Regulations.gov is the authority. Sixty days is common, thirty is common, and a handful run shorter.
- 4
Write it
One to three pages. Say who you are and what you do in two sentences, say which part of the rule you are addressing by section number, say what will actually happen in your shop, and put a number on it. Then say what you would do instead.
- 5
Submit it on Regulations.gov
The rule carries a docket number and a comment form. Paste or attach, submit, and you get a tracking number. Comments are public, with your name on them, permanently and searchably, so write it that way.
- 6
Watch for the final rule
It arrives months later with the preamble that answers the comments. If yours changed something, that is written down in a federal document with your company in it, which is a useful thing to have.
What a comment that gets read looks like
The agency is sorting comments into ones that raise a concrete operational or cost problem and ones that express a position. The first kind forces a response. The second kind gets a paragraph saying the agency appreciates the input.
So be specific to the point of being boring. "This will burden small business" is a position. "Section 52.204-XX as drafted requires a flow-down to suppliers at every tier; we have 34 suppliers, 19 of them under ten people, and collecting this attestation annually is roughly 40 hours of our time and will cause at least four of them to decline federal work entirely" is a fact the agency now has to deal with.
Name the section. Give the number. Say what you would accept instead, because an agency that agrees with your problem still needs a workable alternative, and a comment that supplies one is the easiest kind to act on.
What carries weight, and what does not
| Carries weight | Does not |
|---|---|
| A cost or hours figure from your own operation | An assertion that the rule is burdensome |
| A named section of the proposed text | A comment on the rule in general |
| An alternative that still meets the stated objective | Asking for the rule to be withdrawn, with no substitute |
| A case where the rule produces an outcome the agency plainly did not intend | Restating the agency's own reasoning back at it |
| An answer to a question the preamble explicitly asked | Policy argument about the statute behind the rule |
| One company writing in its own words | A form letter signed by many people, which is counted once |
Which rules are worth your half hour
Most are not. A rule amending 48 CFR, which is the acquisition regulation, is the family to watch: the FAR applies to every agency, an agency supplement such as DFARS applies to that agency's buys, and either can change a clause that is sitting in a solicitation you are working on right now.
Watch for rules that change a representation or certification, because those are work you will do on every offer for ever. Watch for rules that change a size standard or a set-aside threshold, because those change who you are competing against. Watch for flow-down requirements, because those change your relationship with your own suppliers. And watch anything that touches a clause your current contracts already cite.
Ignore rules that set fees for a programme you are not in, rules that concern an agency that does not buy what you sell, and the long tail of notices that are simply meetings being announced.
It is public, with your name on it
Comments are posted on Regulations.gov with the commenter identified, they stay there, and they are indexed by search engines. That is usually fine and occasionally is not. Say nothing you would not want a contracting officer at your largest customer to read, do not include anything proprietary or export-controlled, and if the point you want to make genuinely cannot be made in public, make it through a trade association instead.
The final rule, and the clause in front of you
A final rule carries an effective date, which is when the change becomes real, and that is the date that matters to a solicitation. Between publication and effect there is usually a window where solicitations are still quoting the old clause text.
If you are bidding something that cites a clause with a rule pending against it, that is a question for the contracting officer while questions are still open, not a discovery at award. See rules and funding for where the open notices citing an affected clause are listed, and reading a solicitation for where those clauses sit in the document.
Related
- Rules and fundingThe rules that touch your codes, sorted by the deadline.
- Reading a solicitationWhere the clauses a rule changes actually live.
- Set-asides and small business programsThe thresholds a rule can move.
- ITAR, EAR and DFARS basicsThe supplement that generates the most rules worth reading.
See who was last awarded in your NAICS
Every code, every buying office, every vendor and every recompete, organized from the federal record and read nightly. Open it with a plan.