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Everything posted by PepeTheFrog

  1. As Bob knows, Rothe already did, in the narrow sense of challenging the statute rather than the implementing regulations discussed in this thread. The dissenting opinion by Judge Henderson is worth reading: https://www.cadc.uscourts.gov/internet/opinions.nsf/8E679E72D2D0E57C85258029004DCFFF/$file/15-5176-1634830.pdf This will be PepeTheFrog's last post in this thread, and PepeTheFrog gets the message, loud and clear.
  2. PepeTheFrog's analysis and opinion of the 8(a) program was entirely deleted. Oh, well. It's a private forum. It seems like the 8(a) program, a government contracts program, is too controversial to be discussed in a government contracts forum. Could it be because the 8(a) program is explicitly based on race? Read Vern Edwards' accurate quotations of the regulations, especially the rebuttable presumption part, which in his opinion, somehow disproves that the 8(a) program is based explicitly on race. "Identity and culture" can also be considered, not just race. Ah! That clears things up. Nothing to see here, folks. The Emperor's clothes are magnificent. PepeTheFrog's position is that the 8(a) program is explicitly based on race and is carried out in reality based on race, and that anyone who disagrees is [censored]. Race is only one source of social disadvantage. Other sources are ethnic identity and culture. The census bureau considers race and ethnicity to be "two separate and distinct concepts." According to the American Heritage Dictionary, ethnic means: According to SBA regulations:
  3. Yes, great frogs think alike. 😆🤣😅 Consider this phrase stolen! Great description of federal acquisitions and contracting. For everyone reading this thread and thinking about TINA sweeps... Consider what it's like to have skin in this game, which precludes federal employees. PepeTheFrog is talking about the contractor employees who are responsible for defective pricing and false claims issues. You're the Director of Important Things at Giant Defense Contractor (GDC) and you certify cost and pricing data for GDC. Consider the cases Vern Edwards shared, and consider the immense risk and liability with certifying. You preside over five divisions in five different states, and you're now told that your TINA sweep must be five days. Does that change your opinion of this memo? (Even if Shay Assad, one person who used to have skin in this game and now sits in a federal employee position at Department of Defense, wrote the memo?)
  4. Another thought: If it's true that some negotiations are delayed for weeks or months because of TINA sweeps, why should all negotiations be held to a five-day rule? Punish the sinners, not the innocent.
  5. joel hoffman, PepeTheFrog apologizes because that was meant to be poking fun, not an insult. PepeTheFrog is deleting the stuff that went too far. PepeTheFrog remembers that article when it came out. It says that Shay Assad thinks (or knows) that the government overpays regularly. But this memo is about shortening the length of time for TINA sweeps, which is about shortening acquisition timelines, not necessarily getting a lower price. PepeTheFrog thinks that the government is usually outmatched by large contractors. But PepeTheFrog does not think that shortening the opportunity to do compliance checks for high-risk areas of liability like TINA sweeps is helpful for that issue. For the other issue of shortening acquisition timelines, it's a drop in the ocean and laughable. "Physician, heal thyself."
  6. [deleted] *turns up nose, strikes a dramatic pose, struts off the dance floor* bingo [deleted] Seriously, @joel hoffman, do you have an actual reason for liking this policy, other than ...because PepeTheFrog is one of those, also. So is Vern Edwards. Who cares? What about the Doctor Reverend Martin Luther King, who told us to judge frogs not by the color of their building badge, but by the content of their character (and merits of their statements)?
  7. FrankJon is right. "Don't hate the player, hate the game." Contracting is considered to be an administrative function that should be seen and not heard. The only time you hear from contracting is when there are problems. Leadership doesn't like problems.
  8. PepeTheFrog

    Contractural Threshold

    What can PepeTheFrog do for you? For now, PepeTheFrog will be re-reading your posts a few more times, much more carefully, to better understand your complex mind. Give PepeTheFrog a few more hours. PepeTheFrog is going to call several respected colleagues and get them to think about your questions and clarifications. After that, you will have a detailed synthesis of what the best minds in contracting think about your remarks. Whatever you do, do not try to distinguish between (a) your internal thoughts, (b) conversational remarks, and (c) written questions for an Internet forum. That would only muddy the pond water. James Joyce, William Faulkner...these authors have nothing on you. Your stream of consciousness is a national treasure. Do you have a literary agent? PepeTheFrog is interested in helping you get very, very rich.
  9. PepeTheFrog

    Contractural Threshold

    Frog Lives Matter. Is this something different from the limitations on subcontracting clause(s)? E.g. FAR 52.219-14, Limitations on Subcontracting. That clause applies to set-asides above the simplified acquisition threshold. For that and other contract clauses, look for the "prescription clause" at the beginning, which points you to the section of the FAR describing when it should be inserted into a contract. As far as PepeTheFrog knows, "contractural" is a medical term or another word for "contractual." What does "contractural" mean to you, @Corduroy Frog? Why not use contractual?
  10. PepeTheFrog

    Negotiation Skills and Tactics

    dEcEpTiOn: the boogieman that makes all the church ladies squeal and faint Do you think Henry "Realpolitik" Kissinger used deception in negotiation? Do you think a car salesman does? Do you think a car buyer does? Do you think either side of a federal contracts negotiation does? (Oh, no! Never! There's no gambling in these casinos!) Let's get this party started again! Come back, church ladies! PepeTheFrog wants to hear some virtue-signalling! Show us how naive you are, how morally upright you want others to consider you to be (which is deception), and how little you've thought or read about human psychology, evolution, and language itself! deceive: cause (someone) to believe something that is not true, typically in order to gain some personal advantage...give a mistaken impression Say it with me now: "Deception is a fundamental part of negotiation!" Examples: Bluffing: deception Anchoring or setting expectations high (or low): deception Low-balling: deception Keeping your cards close to your chest: deception Sharing certain information, but not other information, to influence the other side into thinking you're "worse off" than you are: deception Saying, "I can't take that deal" or "My boss will kill me if I..." or "I can't make a profit at that number": often deception Not divulging your entire negotiation position (who would do that, unless you're in a supreme position?): deception, because whether you admit it to yourself or not you cause the other side to believe something that is not true to gain a negotiation advantage...you give a mistaken impression, not the full picture For PepeTheFrog's big-brained frogs only: Which has a higher cost to produce, truth or lies? How does science work? Do we learn about the natural world from justification, or from falsification? Do we apply the scientific method to all forms of communication? Do we apply it to speech or writing in negotiation? Do we warranty all of our communications? Do we warranty all of our communications in negotiations? What do you think transactional and M&A attorneys are paid to do? What does "due diligence" mean in the world of M&A? Did humans evolve language and communication to tell the truth only, or is it also a mechanism to make deception easier? Do all societies, cultures, civilizations, people value truth-telling equally? Does extension of trust beyond kin-groups play a role in levels of commercial prosperity? Are there different group evolutionary strategies for different groups of humans? Could some groups rely more on cooperation and truth-telling than others? Could some groups rely more on predation and deception than others?
  11. Your recourse is to negotiate for more money and risk losing the offer of award. You don't want to protest because you're the "apparent successful vendor." You said "RFQ." The RFQ was not an offer. Your quote was not an offer. The government is providing you an offer now. You can accept the offer, reject the offer, or negotiate for a better offer. You should probably start with a phone conversation.
  12. Be related to or friends with a current federal employee who has connections with the hiring officials. Gain status as a veteran, disabled person, or diverse/vibrant individual. The next best thing is the Pathways Program that FrankJon mentioned, or any of the special internship programs that work for recent graduates. Take advantage of your temporary status as a recent graduate. It will never be easier for you. Yes, you can intern while in school, whether undergrad or graduate. Various agencies have programs like this. Air Force has "Copperhead Snakes" or something like that.
  13. PepeTheFrog

    G&A not allowed on Travel

    PepeTheFrog agrees with both Matthew Fleharty and Retreadfed as possible reasons. Here's another example of the government getting travel costs wrong. Have a written travel policy. Understand the JTR applies to federal employees, not contractors. Be willing to push back. The Joint Travel Regulations (JTR) apply to federal employees, not to contractors. FAR 31.205-46, Travel Costs, states that travel costs incurred are reasonable and allowable up to the maximum per diem rate according to the JTR or other sources applicable to federal employees. It also states that FAR 31.205-46 does not: "incorporate the regulations cited in subdivisions (a)(2)(i), (ii), and (iii) of this subsection in their entirety. Only the maximum per diem rates, the definitions of lodging, meals, and incidental expenses, and the regulatory coverage dealing with special or unusual situations are incorporated herein" Yet one of PepeTheFrog's amphibious clients faced the following situation. Government conference, requiring travel, serves a crappy lunch. Many choose not to eat the lunch, many don't even get to eat the lunch because the conference runs out of food! Contractor bills the maximum per diem per the terms of the cost-reimbursement contract and the contractor's travel policy. Government demands a reduction for the meals served at the conference. Contractor explains this creates a lot of unnecessary work and that their standard travel policy is XYZ. Government bullies contractor into giving up. Similar situation, except government now demands meal reduction for meals served, even on travel days. Read this FAQ below. You will see one of the reasons for the 75% per diem rate on travel days is specifically to avoid complications with such matters on travel days. So, the government will not only hold contractors to the wrong standards, they will also apply those standards incorrectly. "9. Why was the M&IE computation for first and last days of travel changed to 75%? To simplify travel by eliminating times and meal-by-meal construction on vouchers." http://www.defensetravel.dod.mil/site/faqflday.cfm http://www.defensetravel.dod.mil/site/faqctr.cfm
  14. PepeTheFrog

    Appeals of GAO Bid Protest Decisions?

    Thanks, Bob
  15. PepeTheFrog

    Eliminate FAR 52.217-9?

    Is locking up ("institutionalizing") derelicts a good idea, so they don't end up in prison or relieving themselves on sidewalks and shouting at productive citizens? Probably. Is handcuffing contracting officers into using standard, cookie-cutter clauses a good idea? Probably.
  16. PepeTheFrog

    Appeals of GAO Bid Protest Decisions?

    PepeTheFrog is going out on a lily pad. Creative answer: Congress. GAO is Congress' watchdog and works for Congress. Agency loses the bid protest. GAO sustains the protest in favor of the contractor. Agency thinks this decision is wrong. Agency writes a letter to GAO and copies Congress saying so and explaining why they will not comply with the GAO recommendation. Congress hauls in the leader of the agency to explain. Therefore, that discussion with Congress is the "appeals forum" for the agency.
  17. PepeTheFrog

    Are we still on the hook?

    The government tries to pull this trick all the time. The trick is to impose additional burdens by updating or changing clauses but not pay the contractor for the change. During such tricks, make a business decision. Does this new clause increase your cost or time or impose any additional burdens? If so, you're owed consideration to compensate you for the cost, time, or burdens. Think of it this way. If the government issued this change order unilaterally, you would be entitled to submit a request for equitable adjustment or a claim. Yet the government is supposed to make this change bilaterally, with your consent. They just want to pull a fast one and get you to say you'll eat the cost of the change. Don't fall for it. Maybe in this case, NASA is assuming that the new payment clause is a benefit for contractors, not an additional burden, so contractors will happily accept the new clause. Is this assumption accurate?
  18. Might be the difference between using small business as an evaluation factor (FAR Part 15) and the requirement to negotiate an acceptable small business subcontracting plan with the contracting officer for any contract greater than $700,000 that has subcontracting opportunities (FAR Part 19). You're evaluated on the evaluation factor. It can help you win or lose the contract. You're required to have the plan. You cannot receive contract award without it. Matching the plan to what's promised in the evaluation factor does not always happen. Incorporating the plan into the contract to create a contractual obligation does not always happen.
  19. PepeTheFrog

    Bridge Contracts

    Anecdote: PepeTheFrog knows of a contracting officer and "Division Chief" or "Branch Manager" who does (did?) something like this regularly. He or she would penalize the program office for perceived inadequacies in the requirement documents by purposefully delaying the progress of the contracting process. He or she would also penalize (and delay) projects for professional disagreements in meetings. The contract file would mysteriously remain on the bottom of the pile for weeks or months, with none of the required signatures that he or she needed to move the project forward. His or her subordinates would catch some heat for the delays but everyone knew who was really holding up the process. You might ask, "How on Earth did the leadership allow this behavior?" They were just as stupid and incompetent. There is a good ending to this anecdote. Although this atrocious behavior continued for years, PepeTheFrog hears this person was stripped of responsibilities and supervisory status. Send hopes and prayers for termination of employment. Press F to pay respects.
  20. PepeTheFrog

    Not sure what to do in this situation

    You're not even wrong.
  21. PepeTheFrog

    Fee on Negotiated Changes

    Somebody call Professors Dunning and Kruger. Sloppy, sloppy, sloppy. Or maybe it's deceptive? PepeTheFrog said that it is true that...
  22. PepeTheFrog

    Fee on Negotiated Changes

    "Tho' Nature, red in tooth and claw"
  23. PepeTheFrog

    Fee on Negotiated Changes

    Deception is a fundamental part of negotiation. You switched to business strategy, which opens to the door to even more deception. What is marketing? Is there any deception in marketing? Marketing is a fundamental business strategy (or tactic, or practice). What is advertising? Is there any deception in advertising? Advertising is a fundamental business strategy (or tactic, or practice). You overstate the cost of being caught for deception by assuming the absolutely worst form of deception. Fraud might reduce you to zero, sure. Concealing critical facts or information about your strategic position so that the other side has a mistaken (incorrect, inaccurate, untrue) belief about your position will not reduce you to zero. It's expected because deception is a fundamental part of negotiation. Some deceptive practices will not be caught and can be repeated over time. There is some deception that negotiators cannot or will not identify, no matter their level of training or preparation. You overstate the ability of trained and prepared negotiators. How can a negotiator know what they don't know? CIA and DOD research into remote viewing and psychic phenomena has not progressed as far as you might think and those that demonstrate abilities are not widely available as negotiators. They're usually used for other projects. True, but that doesn't falsify that deception is a fundamental part of negotiation. When you negotiate, the other side sees your position as an iceberg above the water. The other side only sees what you present about yourself, or what the other side can find out about you. The iceberg below the water is what the other side doesn't know, which is the totality of your incentives, finances, strategy, timelines, etc. Part of your job as a negotiator is to conceal a certain amount of the iceberg below the water so that you can maintain a stronger negotiation position and get a better deal. If the other side knew everything about the iceberg below the water, your position would be weaker. As a negotiator, you lead the other side to believe that your negotiation position is stronger than it is in reality by keeping certain facts or information to yourself. You lead the other side to believe something that is not true (deception). Deceive: cause (someone) to believe something that is not true, typically in order to gain some personal advantage
  24. PepeTheFrog

    Fee on Negotiated Changes

    That's like saying competition and violence shouldn't happen. Or that hierarchy should be abolished. Good luck! You might say I'm a dreamer, but I'm not the only one...
  25. PepeTheFrog

    Fee on Negotiated Changes

    You can employ deception more than once. Your credibility and integrity is harmed only if (a) you get caught and (b) it's a form or instance of deception that, for whatever reason, is "bad" enough to destroy your credibility and integrity. Nobody cares if you're caught with an inflated "bottom line" in many types of negotiation. "OK, fine, you're really killing me, but I'll do $12,500 instead of my limit, which was $13,000...but only because I really like you!" You're implying that all tactics that involve deception will destroy your credibility and integrity (and that you will get caught every time). Putting aside getting caught, not all forms of deception rise to the level of the synonyms you listed like fraud or treachery. Fraud or treachery will likely destroy your credibility and integrity. Successful bluffing will not have any effect. Unsuccessful bluffing might reduce it. Guile will not likely destroy it; your opponent might respect you more for it. Lying may or may not reduce or destroy it. It depends on the lie and whether you get caught. PepeTheFrog thinks many of you have an emotional reaction to the word and concept of deception. Deal with it. Face reality. PepeTheFrog would say that some of you are living in a world that doesn't exist, or that you are playing by rules that nobody else follows. But PepeTheFrog doesn't believe some of you are being honest and fully transparent....instead, you're being deceptive about your potential for and comfort in using deception. Or maybe you're just deceiving yourself.