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CMMC has been a hot topic for federal government contractors of late, for good reason: once CMMC is rolled out, contractors under a particular Defense Department procurement must meet the applicable cybersecurity level, or they’ll be considered ineligible.
But in case you’re still wondering what CMMC is and why it matters, let’s take a closer look. Here are five things you should know about the Department of Defense’s new Cybersecurity Maturity Model Certification (“CMMC”).
1. What is CMMC?
At its most basic, CMMC is a certification of a company’s cybersecurity. There are five levels of CMMC certification, ranging from basic cyber hygiene practices (Level 1), all the way to the most sophisticated cybersecurity efforts for the most sensitive projects (Level 5).
I’ll confess, I’m not a cybersecurity guru. But DOD has published the CMMC model (v1.0) for contractors to review. Level 1 certification basically follows FAR 52.204-21. From there, each level adds various requirements and practices from NIST 800-171r1 or 800-171B.
2. Why does CMMC matter?
Beginning in mid-2020, DOD will begin assigning a CMMC level to every single procurement it issues. But because a cybersecurity requirement without any teeth to ensure compliance is just a cybersecurity recommendation, DOD has given CMMC a set of fangs: it has made compliance with the applicable CMMC level a mandatory element of contract eligibility. In other words, if an offeror doesn’t meet the CMMC level assigned to a solicitation, it won’t be eligible for that award.
That’s not all. Compliance with the applicable CMMC certification is required for any subcontractor under the opportunity, too.
Let’s say the Air Force seeks to award a contract for IT services at McConnell Air Force Base, in Wichita. Reviewing the requirements, the Contracting Officer believes that CMMC Level 4 is appropriate and assigns it to the procurement. Each prime offeror—and every potential subcontractor—must have a CMMC Level 4 certification (or higher) to be eligible.
Now let’s say the Air Force wants to issue a contract for grounds maintenance services at McConnel Air Force Base. Obviously, a CMMC Level 4 certification would be overkill in this situation; instead, Level 1 might be appropriate. So long as a company has the appropriate level certification, it will be eligible to bid.
3. How can your company get its CMMC certification?
CMMC certifications must be obtained through a third-party auditor. As of this writing in mid-February 2020, DOD has not yet announced who those auditors will be, or what that process will look like. DOD has said, however, that it will start including CMMC level requirements in requests for information as early as June 2020.
Helpfully, DOD has issued the draft model for review. I suspect that there will be a crush of audit requests once that process is formally announced. Companies would be well-served to begin reviewing and implementing CMMC v1.0 now.
4. Will CMMC cost your company money?
Undoubtedly, yes. Companies needing to boost their cybersecurity efforts in response to CMMC might need the assistance of specialists that can provide the needed equipment, software, and procedures. But even if your company has rigorous cybersecurity protections in place, it will have to bear the costs of going through an audit and receiving a CMMC certification.
Though CMMC compliance will cost money, there’s hope. The SBA and DOD have tried to provide assistance, where possible, to small business federal contractors. Your local Procurement Technical Assistance Center might have resources available, too. Importantly, moreover, DOD has announced that cybersecurity costs will be an “allowable cost” under DOD contracts, which could allow small business prime contractors the chance to recover some of the associated compliance costs.
5. Should you care about CMMC even if you don’t work with the Department of Defense?
Absolutely, for two reasons. First, it’s obviously good to have a robust cybersecurity defense, to help protect your business and customers.
Second, CMMC might be the wave of the future. The risks associated with data breaches and cyber intrusions don’t just affect DOD—every federal agency is at risk. So although CMMC is, for now, a DOD-specific initiative, it wouldn’t surprise me if Uncle Sam adopted a government-wide cybersecurity certification requirement to help protect its information.
It’s not hyperbolic to say that CMMC might be one of the most important federal contracting developments in recent memory. Going forward, every DOD contractor—prime or subcontractor, small business or large—must meet the required CMMC certification; and if it doesn’t, it will not be eligible for the award.
If you have any questions about CMMC requirements, please give me a call.
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Nearly half a century after passage of the Age Discrimination in Employment Act (ADEA), the American workplace remains confused as to the line between an innocent joke and potential legal exposure. While jokes involving race at last have found their way to the “hard no” category, the debate over pop culture trends like “Ok Boomer” has made its way to the U.S. Supreme Court. Consequently, both employers and employees could benefit from a review of where the law stands on jokes in the workplace. Spoiler: a “don’t be a jerk policy” goes a long way.
Actor Adam Driver recently appear on Saturday Night Live playing his Star Wars character, Kylo Ren, in yet another “Undercover Boss” spoof. The biggest laugh from the clip comes when Driver’s character is trying, unsuccessfully, to fit in with young interns. Specifically, when introducing himself to the other interns, Driver spurts out “OK BOOMER” (the joke being that the phrase is such a well-known part of internet pop culture that it has become an out of touch boss’s way to try and connect with the kids). While certainly unintentional, the clip is eerily similar to a recent hypothetical posed by Chief Justice Roberts in Babb v. Wilkie, a case considering the causation standard under the Age Discrimination in Employment Act (ADEA).
At issue in Babb was whether federal employees are entitled to the same rights as employees of private companies or state governments, i.e., whether they can successfully bring an ADEA suit if they can show an adverse action would not have been taken against them “but for” the fact that they are more than 40 years old. During oral argument, Justice Roberts asked, “Let’s say in the course of the, you know, weeks-long [hiring] process, you know, [there is] one comment about age,” “the hiring person is younger, [and] says, you know, ‘OK, boomer’ … once to the applicant.”
Following a pause for laughter, the employee’s counsel responded: “I think if the decision makers are sitting around the table and they say, we’ve got Candidate A who’s 35 and we’ve got Candidate B who’s 55 and is a boomer and is probably tired and, you know, doesn’t have a lot of computer skills, I think that absolutely would be actionable.” While the Court has not issued its opinion yet, counsel’s response may well be a good predictor of how the Court eventually rules, i.e., an actionable claim of age discrimination requires more than simply a joke about an employee’s generation. This makes sense, as workplace discrimination laws were never meant to be a “general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). Instead, they are in place to put a check on employment actions taken specifically because of a person’s protected characteristic/status. This is an important distinction to keep in mind when discussing generational issues. While comments like “ok boomer” or “millennial snowflake” are certainly pejorative , they should not be confused with racial slurs. In the end, it’s probably not a great idea to try and bring internet meme culture into the office but rude Twitter responses won’t support a lawsuit on their own.
About the Author:
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties’ human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.
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Accounting systems, policies and procedures make up a critical component of government contract management. To win and keep profitable federal contracts, businesses must show compliance with federal accounting regulations. Effective government contract accounting rests on a foundation of Generally Accepted Accounting Principles used by almost every business. Starting with a solid GAAP framework makes compliance…
The post Laying a Foundation for Government Contract Accounting appeared first on Left Brain Professionals Inc.
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Each year about this time, I read an editorial by Francis Pharcellus Church that was published in The Sun on September 21, 1897. The editorial is in response to a letter written by eight-year-old Virginia O’Hanlon. Now, this entry is not about the contents of the editorial but I will add my favorite part of the editorial:Quote
Alas! how dreary would be the world if there were no Santa Claus. It would be as dreary as if there were no VIRGINIAS. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.
* * * * *
No Santa Claus! Thank God! he lives, and he lives forever. A thousand years from now, Virginia, nay, ten times ten thousand years from now, he will continue to make glad the heart of childhood.
Mr. Church's prose is beautiful. He died in 1906 and Virgina died in 1971. Check out the brief description of the two in Wikipedia. In her letter to The Sun, Virginia printed her address as 115 W. 95th St. Does it still exist? Yes, see 115 W. 95th St. Between 113 and 117 you will see 115 in the center above the windows. To the left of 115, you will see The Studio School at the entrance. The Studio School is a private, elementary-middle school and was founded in 1971, the year Virginia died. In 2009, The Studio School honored Virginia by attaching a plaque to 115 which you can see on the Google Maps image. What does the placque say? You cannot read it on Google Maps but I've added the contents as the final part of this entry.Quote
1889 - 1971
This site, 115 West 95th Street, was once the residence of Virginia O'Hanlon, who in 1897, at the age of eight, wrote a letter to The New York Sun asking, "Is there a Santa Clause?" Editor Francis Pharcellus Church was inspired to respond with the most famous newspaper editorial in American history. Published in the Sun, on September 21, 1897, Church's editorial went beyond the child's simple question to uphold the faith that sustains life confirming that "Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy."
Mrs. Laura Virginia O'Hanlon (Douglas) went on to become an educator and a staunch supporter of children's rights. In 1961, she reaffirmed her belief in the spirit of Santa Claus, saying it "stands for love and sharing, the joy of giving and the extension of it to all people."
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If events beyond the government's reasonable control interrupt normal receipt of offers, and prevent change of the exact due date or time, offers are due at the same time on the first work day that normal government operations return.
The most humorous entry came from @apsofacto:Quote
Life. Wow, man, Life.
It's really strange you know? We make these plans to receive your proposals and then Life happens and we can't. We can't even issue an amendment to our solicitation! Could be plague, could be invasion, could be we just totally flaked out that day.
But chill. We'll take it when we get back. We won't trip about Life. Cuz. Life. Trips. Us. Man. All of us.
Can you pass that stuff over here?
There were some others I really liked that didn't win. If we slightly change @bentley78's entry, we get:Quote
If we can’t receive your proposal on the due date and we forget to extend the due date, you can assume that it’s been extended until the next day we can receive it.
Thank you all for participating!
In the 2019 National Defense Authorization Act (NDAA), Congress placed serious limitations on the Government’s use of Lowest Price, Technically Acceptable (LPTA) procurements. As a result, we should be seeing the Government issue more RFPs in which technology and innovation outweigh price. In these instances, contractors can seek a higher price but are expected to show substantial technological advantages. Two recent protests cases out of GAO illustrate the principles of technical proposal evaluation when technical factors are more important than price, and demonstrate the potential cost/technical trade-offs under these circumstances.
Read the full article here.
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ASHBURN, Virginia (September 19, 2018) The National Contract Management Association (NCMA)
President Charlie Williams Announces the New NCMA Chief Executive Officer
On behalf of the National Contract Management Association (NCMA) Board of Directors, I am pleased to announce the appointment of Kraig Conrad, CAE, CTP, as the new NCMA Chief Executive Officer. Kraig will formally take his position on November 1, 2018. Kraig joins NCMA with 20 years of association leadership experience. He most recently served as Chief Executive Officer of the Professional Risk Managers’ International Association (PRMIA), where he guided the PRMIA Board of Directors and its global network of more than 50,000 risk professionals to craft an enhanced vision for the group that includes a long-range strategic plan; new advocacy, certification, and training efforts; promoting the PRMIA brand; and enhancing membership benefits.
Prior to PRMIA, he held many roles at the National Investor Relations Institute, including Acting Co-Chief Executive Office and Vice President for Programs and Development. Kraig has also served as Research Lead for Strategy Practice at Corporate Executive Board, Director of Corporate Finance and Risk Management and Director of Strategic Alliances at the Association for Financial Professionals. He started his career as a Financial Analyst at Credit Suisse.
Kraig earned a Bachelor of Arts in Economics from the University of Southern California and a Master of Business Administration from the University of Illinois at Chicago. He is a Certified Association Executive and member of the American Society of Association Executives, and a Certified Treasury Professional and member of the Association for Financial Professionals.
“We are excited to have Kraig join our team. Kraig has demonstrated time and time again exemplary leadership skills and thoughtful approaches to the business of association management,” says NCMA President Charlie Williams. “We are confident that Kraig is the right person at the right time for NCMA as we continue the NCMA journey that was begun over 59 years ago. As our new CEO, Kraig’s association leadership skills will be critical to the Board of Directors as it charts the association’s strategic path forward and seeks to further elevate the association’s relevance to the profession it serves.”
The selection of Kraig concludes a national search supported by Staffing Advisors, a Washington, DC-based executive search firm. Kraig shares the NCMA dedication to professional growth and the educational advancement of acquisition and contracting professionals worldwide. Please join us in congratulating Kraig as we welcome him to the organization.
Founded in 1959, the National Contract Management Association (NCMA) is the world's leading professional resource for those in the field of contract management. The organization, which has over 18,000 members, is dedicated to the professional growth and educational advancement of procurement and acquisition personnel worldwide. NCMA strives to serve and inform the profession it represents and to offer opportunities for the open exchange of ideas in neutral forums. For more information on the association, please visit www.ncmahq.org.
Contact: Amanda Gillespie, Marketing & Communications Director email@example.com (571) 382-1127
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In the 1973 futuristic mystery thriller Soylent Green there’s an exchange between Detective Thorn (Charlton Heston) and Hatcher (Brock Peters):
Det. Thorn: Ocean's dying, plankton's dying . . . it's people. Soylent Green is made out of people. They're making our food out of people. Next thing they'll be breeding us like cattle for food. You've gotta tell them. You've gotta tell them!
Hatcher: I promise, Tiger. I promise. I'll tell the Exchange.
Det. Thorn: You tell everybody. Listen to me, Hatcher. You've gotta tell them! Soylent Green is people! We've gotta stop them somehow!
Acquisition Reform is like Soylent Green, it’s people. I don’t mean the Congresscritters, like Representative Thornberry and Senator McCain, and their Committees. I don’t mean the Administrator of the Office of Federal Procurement Policy, whoever he or she may turn out to be. I don’t mean the acquisition and procurement policy wonks in the Pentagon and elsewhere.
This past week (i.e., 14 – 20 May 2017) was a big week for the professional acquisition reformers:
The Advisory Panel on Streamlining and Codifying Acquisition Regulations issued the “Section 809 Panel Interim Report” (May 2017). Read the 60 page report, and formulate your own opinion if it will fix the problems in Government acquisition. Frankly, I think it will take more than getting rid of the $1 coin requirement, but I could be wrong.
Representative William McClellan "Mac" Thornberry introduced H.R. 2511 “To amend Title 10, United States Code, to streamline the acquisition system, invest early in acquisition programs, improve the acquisition workforce, and improve transparency in the acquisition system.” The short title on that would be ‘‘Defense Acquisition Streamlining and Transparency Act’’. (sic) Read the 80 page resolution, and formulate your own opinion if it will fix the problems in Government acquisition. [If we have Representative Thornberry, can Senator McCain be far behind? (Or, is that FAR behind?)]
A (moderately) reliable source has told me that the Department of Defense will be leaving Better Buying Power behind, now that Mssrs. Carter and Kendall are gone. But, wait, acquisition reform has not been abandoned. Apparently, it will go on, but now as “Continued Acquisition Reform.” Presumably that will be abbreviated as “CAR.” Continued Acquisition Reform should not be confused with Continuous Acquisition Reform nor Continued Acquisition Reform, nor Continuous Process Improvement, for that matter, those would all be bygone days.
The professional acquisition reformers have time and again passed legislation and issued regulations to “fix” the acquisition process. This fiscal year (2017) Title VIII (i.e., Acquisition Policy, Acquisition Management, and Related Matters) of the National Defense Authorization Act (NDAA) had 88 sections. The year before, 77 items. And, yet, Representative Thornberry and Senator McCain believe there is a need for a lot more acquisition reform legislation this year. Title VIII has included over 500 sections over the last ten years, but we still need more. What we have at issue here is what is referred to as the Law of the Instrument. Although he was not the first to recognize the Law, Abraham Maslow is probably the one best remembered for articulating it, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." For those of us on the receiving end of the Congressional output that would be, “I suppose it is tempting, if the only tool you have is a legislation, to treat everything as if it were a bill." I suspect, although I cannot be positive, that most, if not all, of the folks doing the legislating have never had to use the Federal Acquisition Regulation (FAR) to buy anything. If they had, they would not be nearly so cavalier in tossing around statements about how bad the acquisition process is, and how more legislation is the answer.
Will such legislation solve the acquisition problem? According to the Honorable Frank Kendall the answer is a resounding “NO.”Quote
Frank Kendall, then undersecretary of defense for acquisition, technology and logistics (USD(AT&L)), condemned, or “slammed,” or “blasted,” such legislation.
Frank Kendall, who has served as the Pentagon's top weapons buyer since October 2011, blasted Congress's acquisition reform efforts, which he said almost inevitably create more bureaucracy and regulation.
Kendall called legislative action “an imperfect tool to improve acquisition results.”
“It is not a good instrument to achieve the results that I think the Hill is after, but they keep trying,” he said. “To be honest, I believe that as often as not, what they do does not help. In some cases, it has the opposite effect.”
Bloomberg Federal Contracts Report, “Outgoing DOD Weapons Buyer Slams Congress’ Acquisition
But, in all fairness, it’s not just them. Since we last had a reissuance of the FAR in March 2005, the FAR Council has brought us 95 Federal Acquisition Circulars (FACs) to update and expand the FAR. Since we last has a reissuance of the Defense Federal Acquisition Regulation Supplement (DFARS) in January 2008, the Defense Acquisition Regulations Council has brought us 211 Defense FAR Supplement Publication Notices (DPNs). With all of that, there are still dozens of open FAR and DFARS cases yet to be heaped on our plate. Although legislation may have been a major root cause of much that change activity, we can probably offer some of our “thanks” to the President, OMB, OFPP, GAO, Boards of Contract Appeals and Courts. Admittedly, now and again, a good idea actually gets slipped into the regulations. [Note: The number of FACs and DPNs issued in 2017 was artificially suppressed as a result of Executive Order 13771 – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. The two councils (i.e., FAR Council, Defense Acquisition Regulations Council (DAR Council) and the Civilian Agency Acquisition Council (CAA Council)) withheld publication of a large number of cases while policies and procedures were “sorted out.”]
[Note: Refer to Augustine’s Laws, Law Number XLIX: Regulations grow at the same rate as weeds.]
And, if that were not enough, we have institutional acquisition reform (e.g., policy letters, memoranda, directives, instructions, guidebooks, handbooks, manuals). Everyone seems to want to get into the act in one way or another. It is interesting to note, however, that the “perpetrators” of this institutional acquisition reform do not see it in the same light as acquisition reform legislation.
But, I recognize the lesson that King Canute was trying to teach when, in the apocryphal anecdote, he had his throne taken to the sea and ordered the tides not to come in. They did anyway. Legislators will legislate, it’s what they do. Regulators will regulate, it’s what they do. Policy makers will policymake, it’s what they do. None of them will willingly give up their rice bowls.
Let’s get back to Soylent Green.Quote
“Acquisition improvement is going to have to come from within. It is not going to be engineered by Hill staffers writing laws for us,” Kendall said. “It's going to be done by people in the trenches every day, dealing with industry, trying to get incentives right, trying to get the performance right, trying to set up business deals and enforce them, set reasonable requirements in our contracts.”
Bloomberg Federal Contracts Report, “Outgoing DOD Weapons Buyer Slams Congress’ Acquisition Fixes,” Andrew Clevenger, January 17, 2017
Better Buying Power (BBP)? The Honorable Mssrs. Carter and Kendall were responsible for BBBP, in all its iterations. Did that rise up from the trenches? Or, was it handed (or pushed) down from above? Isn’t this a bit like the pot calling the kettle black? If you will permit the adding of a single letter to a line of Hamlet by William Shakespeare, "The laddy doth protest too much, methinks."
[Note: Refer to Augustine’s Laws, Law Number L: The average regulation has a life span one-fifth as long as a chimpanzee's and one-tenth as long as a human's, but four times as long as the official's who created it.]
Well, whichever way you look at it (i.e., upside, downside, sidewise) it is all more work for the acquisition professionals that must do the daily work of buying supplies and services for the Government. If you want to have an idea of how all of this acquisition reform weighs us down, then take a look at William Blake’s illustration “Christian Reading in His Book” for John Bunyan’s The Pilgrim's Progress. It will depend on how many pixels the image you find has, but it looks to me that he is reading the FAR.
Who are the Soylent Green? Not the policymakers, but the people in the trenches, doing the hard work of acquisition on a daily basis, day in and day out, week in and week out, month in and month out, year in and year out. The contract specialist, contract negotiator, contract administrator, cost or price analyst, purchasing agent or procurement analyst just trying to get the job done. These are, for the most, part the unsung heroes and heroines of acquisition reform. These are the ones who, through innovation and personal initiative reform that acquisition process, one acquisition at a time. And, if we are lucky, or clever, are able to pass successes along to others.
As acquisition professionals, we must pass on our successes, and failures, to others, so that they may join in the fruits of success, and avoid the pitfalls of failure. You cannot count on “Lessons Learned,” alone. How often do lessons learned go unread and unlearned? You cannot count on “Best Practices,” alone. How often do best practices, go unread and unpracticed? Share with others. Share quickly. Share often. Share wherever you can.
A final thought.Quote
So what is to be done? By and large the answer to that question is well understood—in fact, many friends of mine such as former Deputy Secretary of Defense David Packard; the head of the Skunk Works Kelly Johnson; Air Force General Bennie Schriever; Admiral Wayne Meyer and Army General Bob Baer, among others, were providing the answer decades ago. What is required is simply Management 101. That is, decide what is needed; create a plan to provide it, including assigning authority and responsibility; supply commensurate resources in the form of people, money, technology, time and infrastructure; provide qualified leadership; execute the plan; and monitor results and strenuously enforce accountability. Ironically, little of this requires legislation—but it does require massive amounts of will . . . from all levels of government. Unfortunately, many of the problems are cultural—and it is difficult to legislate culture. But there is much that could be done.
Views from the Honorable Norman R. Augustine
The Acquisition Conundrum
DEFENSE ACQUISITION REFORM: WHERE DO WE GO FROM HERE? A Compendium of Views by Leading Experts, STAFF REPORT PERMANENT SUBCOMMITTEE ON INVESTIGATIONS UNITED STATES SENATE (October 2, 2014)
The absolute final thought. I’m sorry, I can’t help myself. I don’t care about King Canute: Don’t legislate. Don’t regulate. Just leave us alone to do our work as best we can.
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The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor. Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 N&CR ¶ 22), I expressed the fear that the reasoning would be subsequently applied to procurement contracts.
My fear was realized in a construction contract case, Metcalf Construction Co. v. U. S., 102 Fed. Cl. 334 (2011). In that decision, the judge described eggregious conduct on the part of the government officials that would have been held to be a breach of the implied duty of good faith and fair dealing under many earlier cases. However, the judge held that under the Precision Pine standard, the contractor had not proved that the actions were specifically targeted at the contractor. In the February 2012 Nash & Cibinic Report (26 N&CR ¶ 9), I criticized this decision but stated that I believed that even if the decision was affirmed on appeal, most contracting officers would not take this as a signal that the proper way to administer contracts was to abuse the contractor.
Fortunately, a panel of the Federal Circuit has reversed the decision, Metcalf Construction Co. v. U. S., 2014 WL 519596, 2014 U.S. App. LEXIS 2515 (Fed. Cir. Feb. 11, 2014). The court held that the lower court had read Precision Pine too narrowly and that “specific targeting” was only one example of the type of conduct that could constitute a breach of the implied duty of good faith and fair dealing. Importantly, the court also rejected the government’s argument that this “implied duty” only could be found when it was footed in some express provision of the contract. The court concluded that the correct rule was only that the express provisions of a contract had to be examined to ensure that they had not dealt with the conduct of the government; for if they had, they would override the implied duty.
This leaves us in a tenuous position with regard to the views of the Federal Circuit. We have one panel in Precision Pine stating a narrow rule, another panel in Metcalf Construction stating the traditional rule, and a third panel in Bell/Heery A Joint Venture v. U.S., 739 F.3d 1324 (Fed. Cir. 2014), ruling in favor of the government because the contractor had not alleged facts showing that the government had “engaged in conduct that reappropriated benefits promised under the contract” (which is part of the Precision Pine reasoning). Thus, it is difficult to state where the judges of the Federal Circuit stand. Hopefully, the court will agree to take either Metcalf Construction or Bell/Heery to the full court for an en banc review of the issue.
I’ve never been sure why the Department of Justice has so vigorously argued that the government should not be held to the same standards of conduct as a commercial buyer. Of course, persuading the courts and boards that a narrower standard should be applied to the government is a way to win litigated cases. But, in my view, encouraging abusive or non-cooperative conduct hurts the government as much as it hurts its contractors. I have taught for many years that in the long run the government benefits from actions that show industry that it is a fair contracting partner. A line of published judicial decisions that demonstrates that the government is not such a partner is one more of the many messages that tell companies they should sell to the government only when they can find no other customer. Surely, this is not the message that government agencies in need of products and services on the commercial marketplace want to convey to companies that can provide those products and services.
Many years ago when I came to Washington to work in the field of government contracting, I concluded that there was one major advantage to being on the government side of the negotiating table. That advantage was that I was under no pressure to extract money from the contractor by unfair bargaining or unfair contract administration. To me fairness was an integral part of the job of a government employee. I still believe it and teach it. Thus, no matter what the outcome of the good faith and fair dealing litigation, I will continue to urge government employees that fair treatment of contractors is the only way to go.
Ralph C. Nash
When I get older, losing my hair
Many years from now . . . .
When I'm Sixty-Four
John Lennon, Paul McCartney
Shortly after we celebrate our country's independence on July 4, 2013, Wifcon.com will end its 15th year on the internet. With much help from the Wifcon.com community, I've raised a growing teenager. When I started, I was 49 and my hair was so thick that I often shouted ouch or some obscenity when I combed it. Wifcon.com has existed in 3 decades and parts of 2 centuries. During that period, I've updated this site for every work day--except for the week or so when I called it quits. I remember the feeling of relief. I thought it was over. However, many of you convinced me to bring it back. Yes, just when I thought I was out, many of you pulled me back in.
As I mentioned in an earlier post, someone once told me that Wifcon.com was my legacy. I once had great hopes for a legacy. Perhaps, a great saxophone player belting out a solo in front of thousands of fans and seeing them enjoying themselves. Instead, here I sit in my solitude looking for news, decisions, etc., to post to the home page. For many years, my dog Ambrose kept me company. Now, my dogs Blue Jay and Lily stare at me and look for attention. With my sights now set realistically, I accept that Wifcon.com is my legacy. It's the best I could do.
Every now and then, I receive an e-mail from someone thanking me for Wifcon.com. They tell me how it helped their careers. These e-mails keep me and Wifcon.com going.
Send me a postcard, drop me a line,
Stating point of view
Indicate precisely what you mean to say
Yours sincerely, wasting away
Give me your answer, fill in a form
When I'm Sixty-Four
John Lennon, Paul McCartney
The thoughts in these e-mails won't let me quit. I still search each night for something to add to the site in hopes that it will increase your knowledge. If I find something new, I still get excited. Often, it feels like a self-imposed weight around my neck. What started as a release for my imagination has evolved into a continuing and daily addition to the contracting community. In the evenings, it is as if I'm Maillardet's automaton. I head over to my office, sit before the computer, and update. Then I send the updated pages to Virginia where it is accessed from around the world. Maybe I'm addicted to Wifcon.com; maybe I was born with the Wifcon.com gene.
If you haven't added the numbers, I'm 64 now. Wifcon.com and I are showing our age. I can comb the top of my head with my fingers. The ouches and other obscenities caused by my once thick hair are gone. A recent upgrade to the discussion forum requires that I turn the "compatibility mode" off on my browser. In that mode, I realized that Wifcon.com is ugly. I have current software for the needed future redo of this site.
I am Wifcon.com; Wifcon.com is me. It is my legacy and my albatross. As always, thank you for your support.
You'll be older too,
And if you say the word,
I could stay with you.
When I'm Sixty-Four
John Lennon, Paul McCartney