Jamaal Valentine

I think this is generally true about all government law and policy. A recent article quoted Supreme Court Justice Clarence as saying people seemed less attentive to the Constitution than they should be. ""I think we as citizens have lost interest and that's been my disappointment. That certainly was something that bothered Justice Scalia, that people tend to be more interested in their iPhones than their Constitution. They're interested in what they want rather than what is right as a country," he said." He went on to say that "I think we are allowing ourselves to be ruled when we turn all that over to someone else and we're saying, 'Rule me.' Does it mean we get to make all the decisions? No. We have a system for doing that, but a part of that is our role in it, and our informed role in it, not what is said on TV, not what is said by some half-informed person."

You can change jobs without ever relocating. For example, if you go to Los Angeles, you can rotate doing a variety of acquisitions and contracting - R&D, ACAT, SCAT, operational, staff, etc. We would benefit from accepting that a myopic view of leadership is limiting and should be abandoned. Informal leaders play a vital role in (1) getting things done and (2) the growth and development of other practitioners (including new hires). More is caught than taught. In my observations, contracting folks adhere to what is modeled for them. They are influenced heavily by traditions and norms more so than by what they are told or the rules state. Most are practical people and just want to get things done without being admonished by their leadership. Social influence of compliance and conformity is powerful. We can combat or balance some of the negatives of social influence by leveraging informal leaders in new ways (influencers and change agents). After all, look how many people come to this site for information. Why does WIFCON have more influence than some supervisors?

Easy. Change the definition or qualifications for SDB.

A colleague shared this new guidance with me. I think you’ll find it interesting. “…the U.S. Office of Personnel Management (OPM) released guidance regarding the implementation of EO 13932; Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates.”

Couldn’t an interested party make a protest challenging the provision’s reservation prior to the offer due date?

Legal analysis and writing, done well, is a gift. I recently finished a class on legal research, analysis, and writing. Judge Solomson demonstrated many of the tips and best practices I recently discovered. One thing I noticed was that a secondary source was cited. Although the secondary source is not a mandatory authority, it is persuasive. Judge Solomson provided a valuable example of deductive reasoning, analogical reasoning, and policy-based reasoning in action. I will use this case in our training program.

Modifications are where the trail goes cold. I think I can pick back up on the scent now that I am not looking for consideration from each party.

@Don Mansfield, thank you. I don’t know why I’m having so much trouble with this. I feel like I know what consideration is, but I don’t really understand it. @Vern Edwards, thank you for the insights and correction. I am using the student edition of the Restatement. You and Don have graciously provided plenty to dig into. My goal is to better understand consideration to the point I can explain it to others (not just superficially).

@ji20874 There is no particular scenario other than what’s provided. I was just recently having a discussion and reading about consideration. Restatement of the Law, Contracts, 2d ed. has given me a headache. And Administration of Government Contracts, 4th ed. didn’t provide much coverage. I really just wanted to start a dialogue about concepts and principles. Perhaps pick up some nuggets or clarifying points. Do you agree that during (1) contract formation; and (2) contract modification, all parties must generally receive consideration? For example, it’s not adequate for only one party to receive consideration.

Consideration appears to be a two-way street. It seems consideration typically follows the promises or obligations of the parties. For example, the contractor’s promise (obligation) to render supplies/services and, after acceptance, the government’s obligation to pay (return promise). Both parties receive consideration. When a contracting officer modifies a contract, the government must receive consideration if the contractor breached its obligation. Here, the government’s forbearance is consideration to the contractor. In exchange, the contractor provides an equitable price reduction or other consideration. Both parties receive consideration. Now, since a breach occurred, could adequate consideration be the contractor’s new promise to render the same supplies or services at a later date and at the same price? This doesn’t seem right to me under normal circumstances.

What appears to get lost is the need to preserve the contracting officer’s independence. Reviews are a fact of life and contracting officers must request and consider the information, opinions and advice of others, but the contracting officer’s decisions must be independent. To me, an independent decision should be informed by the advice of others. However, the decision must be the contracting officers own. After all, the contracting officer is responsible and liable. For example, within DoD contracting officer’s are Departmental Accountable Officials and have pecuniary liability. If contracting officers are performing poorly try training and resourcing them. And hold them accountable. Unfortunately, many contracting offices are understaffed and our government is significantly contracted out so the contracting officer mill will continue.

I’ve noticed some SAP purchases require up to six reviews. This often leads to an incoherent acquisition strategy and execution. Frequently, the contracting officer is left to implement something that was levied upon them and that they don’t understand. Results vary. Honestly, who is the ‘real’ contracting officer in such a system? What affect does this have on the contracting officer? The position? I think it will tear at the confidence and accountability contracting officers should have. The prestige of being a contracting officer is at risk of losing its luster.

@formerfed, I kept thinking about personal services too. Every office I’ve been in awards personal service contracts that are labeled performance-based-services-acquisitions. @Don Mansfield, I remember reading through the Formation of Government Contracts and the Administration of Government Contracts and wondering why what I was reading didn’t match the training and education I was receiving. The (1) what; (2) why; and (3) how in those books was very different than the dogma I was learning. Even worse, the offices generally didn’t have an interest in what was in the books.

I predict several GS-12s, GS-13s, and GS-14s will gang tackle said protest at a premium cost to the taxpayer. I wonder if the FAR council considered this.

What DAU or FAI contracting courses provide training on policy analysis and policy-based reasoning so that contracting officers can be ‘careful’?