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Vern Edwards

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Everything posted by Vern Edwards

  1. @Retreadfed @Jamaal Valentine @FAR-flung 1102 I'm confused by the ongoing conversation. I think you're discussing whether anything will require the predecessor contractor to provide a list of its employees. Is that right? If that's what the discussion is about, then see E.O. 14042,Section 3, the prescribed contract clause, paragraph (c): Does that clear things up, or have I misunderstood your discussion?
  2. E.O. 14058, Transforming Federal Customer Experience and Services Delivery To Rebuild Trust in Government, 86 FR 71357, December 16, 2021, is a remarkable document, and I urge everyone to read it. It is a perfect example of what George Orwell called "political language." See Politics and the English Language, https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/politics-and-the-english-language/. That's probably why it got nary a mention that I could find in the mainstream media. They took it for what they knew it to be. I don't want to burden this website with political commentary. I'm not a very political person. I'm a registered independent. But after reading the E.O. a couple of times I cannot resist saying that whatever its authors' real intentions, (there were undoubtedly more than one author; the thing is a classic staff production) it is a case study in political puffery. Its purpose is to document the record to show that the signer tried to do something positive while in office. Highlights: Section 4, Agency Actions to Improve Customer Experience, includes specific instructions for the Secretaries of State, Interior, Agriculture, Labor, Health and Human Services, Education, Veterans Affairs, and Homeland Security; the Administrators of the SBA, GSA, and AID; the Commissioner of Social Security; and, other senior officials. And, good news for IT companies, it specifies several tasks that will require even more information technology than is already making everyone crazy and insecure. More IT acquisitions for contracting offices. Protest lawyers are cheering between sips of expensive wines. Section 7, Additional Agency Actions to Improve Customer Experience, calls for agencies to "integrate activities," and apply the E.O. to their strategic and performance plans, their priority goals. their regulatory agendas and plans, their individual performance plans for senior executives, and their instructions to program offices, etc., etc. It's all a sort of lightweight Clinton-Gore "reinventing government" thing for the 21st Century. In fact, it refers to President Clinton's E.O. 12862, Setting Customer Service Standards, 58 FR 48257, September 14, 1993. (The whole "customer" thing started during the Clinton administration.) That E.O. was a lot shorter, only two pages. Biden's is ten. I'm sure more pages make it better. For one assessment of what "reinvention" based on unproven theories has done to government read, Sekera, Economics and the Near-Death Experience of Democratic Governance (May 2015), https://www.bu.edu/eci/files/2019/06/15-02SekeraEconomicsDe-Democratization.pdf Everyone should read the E.O. and take account of it based on their own experience in or with government.
  3. WifWaf, I know that you strive to be thoughtful, so maybe you should explain yourself or, perhaps, rethink that sentence. In fact, perhaps you should reconsider your entire post. What should follow from critical thinking is clear expression.
  4. To date, President Biden has issued 76 executive orders in his first year in office. I am not sure how many affect contracting. Clinton issued a total of 364 while president (two terms). Bush II issued 291 (two terms). Obama issued 276 (two terms). Trump issued 220 (one term). The record is held by Franklin Roosevelt, with 3,728. Of course, he served three full terms and part of a fourth during a national depression and a world war. Cumulatively, Biden's EOs come to 320 pages in Federal Register fine print. Bidens two longest are 15 pages each: E.O. 14008, Tackling the Climate Crisis at Home and Abroad, January 27, 2021, 86 FR 7619, 02/01/2021 E.O. 14028, Improving the Nation's Cybersecurity, May 17, 2021, 86 FR 26633, 05/17/2021 Biden's most recent one was E.O. 14060, Establishing the United States Council on Transnational Organized Crime, December 15, 2021, 86 FR 71793, 12/20/2021. The most intriguing title was E.O. 14058, Transforming Federal Customer Experience and Service Delivery To Rebuild Trust in Government, December 13, 2021, 86 FR 71357, 12/16/2021. Ten pages. It includes the following definitions, among others: Note the reference to "business" and "contractor" in paragraph (a). Oh-oh.
  5. @REA'n MakerAssuming that the E.O. you referred to is 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, it expressly states that it is grounded on the president's authority under 40 U.S.C. § 101 et seq. and 3 U.S.C. § 3. Those are laws. No court has yet held that it is not properly grounded in those laws. The only court actions that I know of against it are preliminary injunctions pending a court decision. Why do you say it's legally questionable? What are you talking about?
  6. ji20874 said: I'm bored at the moment, so I'm going to explain the preceding REA'm Maker/ji20874 communication: Note the reference to the Changes clause, which expressly provides for an equitable adjustment if a change causes an increase in the cost or time required for performance, To which REA'n Maker (apparently) responded: REA'n Maker's comment does not make sense. ji20874 clearly did not say what REA'n Maker suggests that he said. He did not say that a CO changing a security clearance level from Secret to Top Secret/Sensitive Compartmented Information could assume no cost or schedule impact. REA'n Maker hurt ji's feelings and should apologize or clarify. It he'd done that to me, I would have resorted to ridicule. 😈
  7. Process complexity and workforce incapacity are killing us, and they are going to kill us off.
  8. @JaxD8282Read the executive order, Section 11: The FAR Council has not yet issued final regulations, so inclusion is optional. Has someone in authority in your organization decided to include the clause mentioned above in your solicitation?
  9. Emphasis added. I presume that the "we" in your post is a government agency. Do you mean required to hire incumbent contractor EMPLOYEES? I don't know of any executive order requiring that the government hire incumbent contractors.
  10. No. I did not intend to define "innovation" or "reform." Either might involve an exception to ordinary practice. In casual communication I use "innovation" to refer to something new, e.g., a new practice. Self-scoring proposal evaluations was such an innovation. Congressional authorization for DARPA to enter into "other transactions," when first introduced in 1989 (Pub. L. 101-189), was an innovation. I think most innovations are intended to simply processes and reduce workload. I casually use "reform" with reference to a modification of an existing practice that is designed to fix a specific problem. Reforms don't necessarily simplify or reduce workload. They often complicate and increase workload. The CICA requirement for full and open competition (1984) was a reform. So was the law requiring "enhanced debriefings." The change to FAR 16.505, allowing bid protests of task orders awards, was a reform, but it did not reduce workload. But I do not mean those to be formal definitions, and it's not a matter of either/or. A reform might involve an innovation. An innovation might be intended as a reform.
  11. Most people who use the word fraud have no idea what it means. It is a word that I never use except when responding to people who do use it. It is a complicated idea. Here are some readings about fraud: "The Elements of Common Law Fraud" https://www.mitchell-attorneys.com/common-law-fraud "When Is It Legal to Lie in Negotiations? https://faculty.wharton.upenn.edu/wp-content/uploads/2012/04/Ethics1.pdf "Reflections on Certification, Interpretation, and the Quest for Fraud That Counts under the False Claims Act" https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2836645 Supreme Court - Universal Health Services, Inc. v. United States ex rel. Escobar, 579 U.S. 176 (2016) https://www.supremecourt.gov/opinions/15pdf/15-7_a074.pdf "What is a False Claim?" https://www.mololamken.com/knowledge-What-Is-a-False-Claim Here is a recent board of contract appeals decision in which the ASBCA concluded that the act of a contractor had constituted fraud in the inducement. Hollymatic Corp., ASBCA 61920, March 22,2021. https://www.asbca.mil/Decisions/2021/61920, 61956 Hollymatic Corporation 3.22.21 Decision.pdf
  12. Well, let's think. Let's begin by stating what we are talking about. Assuming that innovation, reform, and improvement are nouns, are they synonyms for the same thing or are they different things? What are they?
  13. Emphasis added. This is the kind of inquiry that just drives me crazy. "[I]s there a mechanism to redo the settled rates?" Yes! Of course! But why do people need a regulation to tell them how to do EVERYTHING? I'm going to assume that your reference to "fraud" means that the government will want a rate reduction. First, within your company and with the advice of an attorney, discuss how you want to handle this "fraud" thing. Are you sure fraud was involved? A person who has to ask a question like yours may not know fraud from fricassee. Get legal advice. Second, after your company has decided how to approach the government on the matter, by saying it (or someone) committed fraud or that it made a mistake, write a letter to the CO or auditor who made the annual rate determination in question and say that you need to make a change. Include a revised indirect cost rate proposal to send with the letter. Require proof of delivery. Third, stand by for a response. If you don't get one within a reasonable time, send another letter, and again require proof of delivery. If you don't get a prompt response from the addressee, send a letter to the addressee's superior. What happens from then on will likely depend on government inquiries and instructions. If it is possible that anything was involved beyond a provably honest mistake, be guided in all your communications and actions by your lawyer.
  14. It is impossible to evaluate Don's thought without some argument from him. What kind of act is a "sovereign act"? Why does he "see" the new safety requirement as a sovereign act? I suggest that we wait until he explains his thinking. Here is some background to the sovereign acts doctrine, pages 277 - 283. https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1318&context=oclj See this, too, for general background, though it's a little old. https://apps.dtic.mil/sti/pdfs/ADA254270.pdf And this. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4742&context=uclrev More up-to-date articles may require a subscription to the publication.
  15. @formerfed I'm not surprised. Acquisition "leaders," "reformers" and "innovators" are among our greatest exaggerators, fabulists, and myth-makers. The concept of evidence-based policymaking, the final report of the Commission on Evidence-Based Policymaking, and Public Law 115-435, The Foundations for Evidence-based Policymaking Act of 2018, are all the product of wishful thinking. https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2019/03/Full-Report-The-Promise-of-Evidence-Based-Policymaking-Report-of-the-Comission-on-Evidence-based-Policymaking.pdf The primary source of government policymaking is politics, not facts. Most acquisition success stories cannot bear close scrutiny. Acquisition reformers knew about "alternative facts" long before that notorious presidential aide used the phrase. Read this, if you have not already read it, then think about some of the acquisition policy memos and exhortations to relevance, reform, innovation, and greatness you have read: https://www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/politics-and-the-english-language/ My favorite line: "giving an appearance of solidity to pure wind."
  16. Why do you say OTA is a concept that works? In what way does it "work"? What's the evidence that it "works"? What are the facts?
  17. Just a note: The proper term is redressable, as in redress (v.), "to set right," or redress (n.) "remedy or compensation for a wrong or grievance."
  18. Here is the change order that was proposed by ji20874 as within scope: That would be within scope, in my opinion, and would not confront a contractor with any reason to lose its contract.
  19. Don't be childish, Joel. That's right out of seventh grade. You asserted, and if you don't know that, then it's you who should read the definition. You said that such an order would seem to be out of scope. That's an assertion of fact. You didn't say to whom it would seem to be out of scope, but your statement was an assertion nonetheless. I agree that a change order would have to be narrower than the executive order. But it could require that all personnel employed at the government's facility be fully vaccinated and boosted, and tested regularly if they lived with someone who was not.
  20. @joel hoffmanWhat do those two sentences have to do with your assertion that a change to add the requirement "would seem to be" out of scope?
  21. @DE13151719If I were a contractor and you came to me as a subcontractor seeking a higher "escalation rate" for your subcontract option year, and if you offered me the DOD "Green Book" economy wide rate from Table 5-1, I would laugh you out of the room. What is your subcontract for? Labor? What kind of labor? In what region? A product? What kind of product? What kind of materials? What is the source of cost escalation? The "Green Book" economy wide rate is too gross for subcontract pricing. There are many escalation rates for various parts of the economy. Choose an appropriate one. As a DOD contracting officer I never had a contractor seek an adjustment based on the DOD "Green Book" economy wide rate. I did a sanity check with a colleague at the Defense Acquisition University and he laughed out loud at your notion.
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