We often recommend that contractors take action to oppose new rules and regulations they believe will increase their costs and deliver little, if any, of their intended benefit once in effect.  What actions, though, can contractors take?  While there are multiple options open to companies to act on their own or as part of an industry front, here are a few actions that we’ve seen work over time.

1.  Challenge the rule or legislation while it is still being formed.  The best way to head something off is to challenge it before a provision has too much momentum.  Too often, one side gets the ear of lawmakers or regulatory agencies and dominates the discussion.  Contractors need to have eyes and ears representing them and make sure their voices are heard early.  Long-time contractors may remember the “contractor blacklisting” rule that, like something straight out of the “Walking Dead”, keeps coming back to life.  Still, industry has been successful in killing the original rule, even after it was implemented.  Consistent action can make a difference.

2. Shrink the problem.  Bad ideas may start as grand plans with a wide reach.  Left unchecked, they can add significant costs to a government contractor’s overhead.  One proven method to minimize the impact is to work with legislators or regulatory officials to shrink the problem so that its overall impact isn’t nearly as significant.  A pilot test, the scope of contracts the new provision coverages, extended phase-in times, and more are all well-established alternatives that have worked to both make a large problem manageable and eventually see the issue fade away.

3.  Defund enforcement. This is almost always a legislative move that technically leaves a bad provision on the books, but renders it moot by prohibiting agencies from spending money to enforce it.  This approach may be more possible now with a Republican-controlled House facing off against a Democratic White House.  Contractors can work with their elected officials and appropriators to make a case as to why the provision isn’t in the best interest of either government or industry and should have enforcement withdrawn.  This is similar to recent House calls to curtail funding for the IRS.

4.  Remember, “that which is impossible cannot happen.”  Reg writers, and the occasional elected official, sometimes believe that day can be turned to night if only the wording of a provision is precise enough.  Sometimes rules are promulgated that are so broad-reaching they have no realistic chance of ever being enforced.  New rules requiring food processors to flag sesame content as an allergen are a current example of regulatory overreach.  Instead of taking the risk of missing trace amounts of sesame in some products, producers are adding it more recipes.  Though some in Washington are loathe to admit it, there is a limit on how regulations can be used to manage human behavior.