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Vern Edwards

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  1. @formerfed Bingo! Add to that the nature of our government, with its separation of powers (unlike in parliamentary systems). When Congress doesn't like the way the Executive Branch performs, it makes laws, because that's all it can do. Then the Executive writes orders and regulations. So many rules. The courts and other legal tribunals are involved with everything, because lawyers and litigants make it so. More rules ("case law"). It's not enough that practitioners think it can be useful to consider past performance. We have to make it a law. And once it's in the books... And please don't get me started on performance-based acquisition. Too many top and mid-level management jobs are done by political appointee amateurs. By the time they set up office and bone up on the work it's time to leave. They, of course, have to launch their "initiatives." I could go on, but to no purpose. Every informed and thinking American knows what's up.
  2. @Mike TwardoskiGood list. I have the following on my book table: The Dawn of Everything: A New History of Humanity (2021), by Graeber and Wengrow. Hot book right now. Controversial. Just started it. I love David Graeber, who died last year. He wrote The Utopia of Rules, a favorite book. Air Wars: The Global Combat Between Airbus and Boeing (2021), by Scott Hamilton. (Inspired by guess what.) Haven't started yet. The Socratic Method: A Practitioner's Handbook (2021), by Ward Farnsworth. Really about how to think. Wonderful, as are all of Farnsworth's books. On my second read. The Great Mental Models, Vol. I, General Thinking Concepts (2019), by Farnam Street Media. Just browsed, so far. Quote: "The quality of your thinking depends on the models that are in your head." Objectivity (2007), by Lorraine Daston and Peter Gallison. A 418-page tome. I'll never finish it. But very interesting. The Ministry for the Future (2020), by Kim Stanley Robinson. Scary science fiction about global warming. Good, but unnerving. Still reading. Strong recommendation for fun: My wife and I recently had to take home Covid tests before going to a family-and-friends Christmas dinner and poker game. We laughed at ourselves for being nervous while waiting for the results. We passed, thank goodness, and the party was fun. Our nervousness about the test results reminded me of my all time favorite scary science fiction story, "Who Goes There?" by John W. Campbell, first published in 1938. A study in paranoia. It was the basis for the Howard Hawks movie "The Thing From Another World" (1953), and "The Thing," the John Carpenter gore-fest of the 1980s. Both are cult films you can stream. Neither of them is as good as the story, but "The Thing From Another World" is great fun. Great dialogue. I've watched it a countless times. James Arness' first movie. The story is available for free at several websites. I recommend the following site: https://github.com/roguephysicist/who_goes_there/blob/master/John-W-Campbell_Who-Goes-There_1938-display.pdf It's also available as an audiobook.
  3. @formerfedThanks! I don't know the right answer, if there is one. My point in all this has been to show that the acquisition regulatory regime has become so voluminous, complicated, and convoluted that it has given rise to a system of extreme complexity and significant unpredictability. Unpredictability puts businesses in doubt and at risk. Doubt and risk increase the costs of compliance and the prices of supplies and services. They are drags on process. At the same time, they make real and full compliance nearly impossible. Statutes, executive orders, regulations, policies, deviations, exceptions, "informative" websites. It's all too much. Unfortunately, our governing institutions are so dysfunctional now that we cannot fix the system. We have seen that "reform" does not work. That's because Congress, the Executive Branch, and the Judicial Branch simply do not function as they should and as they must in order to sustain and protect us. For all the NCMA ballyhoo and recent tendency to celebrate "leaders," a cult of personalities, much of what is called "innovation" is really just connivance to exploit rule conflicts and gaps and develop work-arounds, which sometimes undermines the integrity of the system and process, giving rise to cynicism and discouragement. This is a sad state of affairs. I have devoted an almost 50-year career to trying to understand the system and the process. But you can see, below, what I have adopted as a signature motto.
  4. I should add, as a warning, that I found the chapters about the two crashes very painful to read, especially the chapter about the crash in Ethiopia. The author pulled no punches.
  5. @formerfedGSA schedule CLIN prices have nothing to do with it! Those are the prices the government pays the contractor for the services. We're talking about the wages and fringes the contractor must pay to its employees. Do the SCA and the SCLRs apply to the contract as a whole or on an order-by-order basis? Has the contractor violated the terms of 52.222-41?
  6. What does incidental have to do with it? I thought the standard, as stated in FAR 22.1003-1, was "principal purpose"? Where did you find your incidental/nonincidental standard? Is that in 29 CFR part 4? (See 29 CFR 4.111 and 4.130.) It's not in FAR subpart 22.10? In any professional task, nonprofessional support personnel may outnumber the professional personnel. That does not make their work the principal purpose of the task. But assume that the task entails work by ten Ph.D. physicists and three nonprofessional technicians.
  7. @formerfedThere will always be some nonprofessional workers, even when the principle purpose of the task is professional. In my scenario, the nonprofessionals working under the second task provide support.
  8. @Mike TwardoskiI have a different take on the author's point of view. I don't think he thinks capitalism is bad, but that the style of capitalism practiced by Boeing in this late stage of its existence was bad. He greatly admired the Boeing that developed the B-17, the B-52, the 707, and the 747, among other aircraft. He despised the Boeing that came into being after its merger with Douglas Aircraft. The latter Boeing sacrificed engineering excellence, for which the company had been known, but which is expensive, to shareholder value, which demanded cost reductions. They took shortcuts and avoided regulatory controls that would have cost more money and might have cut sales. As a result, they sold an aircraft that caused more than 300 deaths and hurt the airlines that were their customers. As someone who has flown more than 1,000,000 miles on many different aircraft, military and civilian (those days are over), and when I think of what it must have been like on the two aircraft that crashed for the passengers and crew in their last moments of life, I'm all for more regulation and better government. Friends of mine who read the book, and who are very conservative, felt that the story reflected the decline of American capitalism. I thought the book also reflected what I consider to be a general decline in the quality (but not the quantity) of American government, which has been on display over the last two years. I thought the book showed signs of hasty publication, and I found the author's style to be discursive without being especially entertaining or informative. I wonder what Michael Lewis would have done with the story.
  9. In typical Wifcon Forum fashion, we have wandered off track. Here is the original question: Suppose that a contractor has a GSA FSS contract that contains FAR 52.222-41 and 52.216-18. It receives two task orders. The first is for work the primary purpose of which is to obtain services from "service employees." The second is for professional services, with nonprofessional employees working in support. The contractor pays the nonprofessional employees SCLRs under the first order. But following the instructions given to CuriousContractor_22 by the agency, that the second order is not subject to the SCA, the contractor pays lower rates under that order. The contract says nothing about that procedure. Nonprofessional employees working on both tasks and doing the same work under the same job titles notice that they are not getting the SCLRs for their work under the second order and complain to the contractor, their employer. The contractor tells them the SCLRs don't apply to the second order. The employees complain to the DOL. Do the CO's instructions that the SCA and the SCLRs do not apply to the second order constitute an adequate defense against violation of the Service Contract Act and breach of 52.222-41? In light of 52.222-41 and 52.216-18, did the CO who issued the two orders have the authority to say that the SCLRs did not apply to the second order? Does the SCA apply to the contract as a whole or on an order-by-order basis? Has the contractor violated the terms of 52.222-41?
  10. Carl, That post was more than 24 hours ago, and you have posted volumes since then. Do you expect me to read and memorize? 😝 Thanks for the link.
  11. The entire quote provided by Carl, of which the above is a brief excerpt, is evidence that our government has lost its bureaucratic mind. Carl, can you provide a link to that solicitation?
  12. Is the following plausible? 1. The SCLS applies to contracts, as prescribed by the SCA, DOL regulations, and FAR 22.1003. The key applicability rule is the "principle purpose test" prescribed by FAR 22.1003-1. 2. Under contract, the SCLS are implemented by the SCLS clause, FAR 52.222-41. 3. The statute, regulations, and contract clause require that contractors compensate and manage a specific category of contract workers in certain ways. That specific category of workers is referred to and defined in 29 CFR 4.113(b) as "service employees," of which there are many different classifications. 4. By ordinary standards of contract interpretation, if an agency issues an IDIQ contract that includes the SCLS clause, then pursuant to FAR 52.216-18(b), each task order is "subject to" the clause, no matter what its principle purpose. Nothing I could find in 29 CFR part 4, FAR Subpart 22.10, or FAR 52.222-41 provides for application of the principle purpose test to individual task orders. Did I miss something? 5. Thus, assuming I haven't missed something, under an IDIQ contract containing FAR 52.222-41, under an individual task order that requires work primarily by professionals but requires support by service employees, the contractor would have to compensate and manage the service employees in accordance with FAR 52.222-41. It doesn't matter that the principle purpose of of the task order is to obtain the services of professionals, because all orders are "subject to" FAR 52.222-41. In other words, under a contract subject to FAR 52.222-41, service employees are to be compensated and managed in accordance with FAR 52.222-41, regardless of the task order to which they have been assigned. The clause applies to the contract as a whole. 6. But an agency could issue an IDIQ contract with one line item for task orders primarily for professional services, not subject to the SCLS and with a clause set that does not include FAR 52.222-41, and one line item for task orders primarily for the services of service employees, subject to the SCLS and with a clause set that does include 52.222-41. See my Briefing Paper on contract line items, which is posted at Wifcon in Articles. In that case, FAR 52.216-18(b) would be interpreted and applied accordingly. Then, service employees working under a professional services task to which 52.222-41 does not apply would not be covered by the clause, while service employees working under a service employee task would be covered. Plausible?
  13. If you say so. I don't know. I haven't participated in or studied that process, and I haven't studied the contract in question. Apparently, you have done those things.
  14. Not quite. Generally, there is a hierarchy of rules, starting with statutes, then regulations (in the case of the SCA, DOL, then FAR, then FAR Supps). Contract terms implement those rules. If the terms of a contract are inconsistent with a higher-level rule, a court or board of contract appeals is likely to toss or ignore the contract terms. Contract deviations must be properly authorized. See Nash et al., Formation of Government Contracts, 4th ed., II. Contracting Powers, C. Contracts Varying from Statutory or Regulatory Requirements, pp. 69 - 81.
  15. @formerfedThe DOL's rules for implementation of the Service Contract Act are in 29 CFR part 4, Labor Standards for Federal Service Contracts. I searched that regulation for any mention of the word "order." The word appears 105 times. I looked at each and every mention. None of those mentions refer to delivery orders or task orders. In fact, the phrase "task order" does not appear anywhere in 29 CFR. In short, I found nothing, NOTHING, in DOL's official rules that support what it supposedly said to GSA. @Contractors—Don't trust what government personnel say about rules that cannot back up by citing regulation, contract, and authoritative interpretation. Informal communications, such as the ones cited by formerfed, are worthless in my opinion. If you rely on them and they turn out to be wrong, they will not provide you with a reliable defense. The United States has created a system of procurement rules—statutes (positive and nonpositive law), executive orders, regulations, policies, handbooks, website postings, and case law—so voluminous, badly written, convoluted, and complex that no one fully understands all of it or even a substantial part of it. It's madness. If you have a question about what a law, regulation, or contract clause requires of you, and if you are potentially at risk of noncompliance, then consult an attorney who practices in that field. Get a legal opinion. Then keep your fingers crossed. Most contractors don't get into serious trouble when they break a rule, because no one spots it or does anything about it. But every now and then... It's too bad that it is this way, but that's the system our government has created.
  16. @formerfedThe "are subject to" provision of FAR 52.216-18(b) has been invoked in 37 board of contract appeals decisions, five Court of Federal Claims decisions, six Federal Circuit decisions, and in one amicus curiae brief submitted to the Supreme Court. If the government is going to write such clauses, it should conduct its affairs in strict conformity with their terms—no "innovative" shortcut screwing around. In short, it should obey its own #@&&!* rules and communicate clearly about exceptions and deviations!
  17. @formerfedI saw that GSA link, but I don't accept it as authoritative, and I do not trust it. Why should I? It is inconsistent with FAR 52.216-18(b), and it does not cite an FSS contract clause or a GSA or DOL regulation that expressly provides for the procedure it describes.
  18. I presume that question is about GSA FSS contracts. I don't know much about them anymore, but I believe that they are all IDIQ contracts and contain the clause at FAR 52.216-18, Ordering, which says in part: Based on that clause, it seems to me that if a GSA FSS contract contains the SCA clause at FAR 52.222-41, then all orders issued thereunder are "subject to" the clause, unless the contract states otherwise based on an authorized FAR deviation. I haven't seen anything in FAR to the contrary. I have not checked the GSAR. It may be that somewhere in GSA's myriad policies and procedures or in some special clause in its FSS contracts that the FAR 22.1003-1 principal "contract" purpose test applies on an order-by-order basis, and that an order is thus not "subject to" the SCA clause if the ordering CO determines that the order does not meet the SCA applicability criteria. I don't know. But I sure as heck wouldn't accept some agency's assertion to that effect or something posted to some website. I would demand to be shown where it says that in the contract. If it doesn't say that in the contract, then my initial position would be that the agency is wrong. Of course, if an order does not entail performance of any work by any "service employees," then, while the order is still "subject to" the SCA clause, there is no one to be compensated in accordance with the clause. Contractors cannot trust what they are told by government personnel, orally or in writing, about the applicability or interpretation of laws and regulations, and they can't trust all website information. They must independently verify. If after award the agency turns out to have been wrong, you might have serious trouble.
  19. That reasoning is based on premises that are not the case in WifWaf's proposed change.
  20. @Jamaal and WifWaf I suggest that you agree on the terms of the change. Decide what it would require. Then discuss scope analysis. Forget sovereign act for now. That's another thing entirely. A sovereign act would have to apply to the general public, not just to contractors.
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