Vern Edwards

"The Impossibility of Comprehending, or Even Reading, All Federal Regulations"

https://www.mercatus.org/publications/regulation/impossibility-comprehending-or-even-reading-all-federal-regulations

On May 6, Bob posted a notice of rule withdrawal by the Department of Labor. The rule was an interpretation of the meaning of "independent contractor" under the Fair Labor Standards Act.

A 40-page proposed rule had been published on September 25, 2020. The 81-page final rule had been published on January 7, 2021, to be effective on March 8. But on March 7, DOL postponed implementation. Then on May 6 DOL withdrew the rule in the 24-page notice that Bob posted.

All to interpret "independent contractor."

Speaking politically, the final rule had been a last-minute Trump administration action, which the Biden administration promptly cancelled.

Our government at work. Mirabile dictu. It's a miracle that anyone starts a business and creates jobs. We should erect a monument in D.C. to those brave enough to start businesses, hire people, and try to survive government. They are at least as brave as the ubiquitous generals on horseback.

Garner, Garner's Guidelines for Drafting & Editing Contracts, 2019, West Academic Publishing.

@joel hoffman I'm sure ji20874 appreciates your input.

28 minutes ago, joel hoffman said:

Inasmuch as the limitations on subcontracting are statutory requirements, I’m curious whether a waiver would be allowed/approved.

The statutory limitations may be interpreted to allow some variations in application. I wouldn't be worried about it. I might check with SBA. Then again, I might not.

Why work overtime to find reasons why the agency should not find a way to facilitate a set-aside?

Look for solutions.

1 hour ago, MAY-D-FAR-B-WIT-U said:

Does anyone know the history behind the evaluation process of keeping price proposals from the technical evaluation team (TET)? The price team, generally contract specialist and contracting officer have access to both price and technical volumes, why not vice versa? 

It's an old practice. I encountered it in my first Air Force source selection, which was in 1975. The idea, as I recall, was that seeing prices might affect technical evaluators' assessments of technical proposals. I don't recall whether it was official policy or just a practice norm.

As for policy today, see FAR 15.305(a)(4).

Could you create two line items—an FFP CLIN for management and a cost-reimbursement no fee CLIN (repair as-directed) for the repair work, then apply the limitations on subcontracting clause to the FFP CLIN but not the CR CLIN, with an explanatory memo to file? Treat it as a one-time FAR deviation, if necessary, in order to make a viable set-aside opportunity?

Who would complain?

Can you set a contract aside for small businesses if the terms of the contract would be such that no small business contractor could comply with the limitations on subcontracting?

2 hours ago, ji20874 said:

It might be that the contracting officers themselves are part of the problem, but I think a major part of the problem is the culture of our contracting offices.

Yes, and part of that culture is appointing people to be contracting officers who are not qualified to be contracting officers on the basis of either personal traits, professional knowledge, or both.

Chief Acquisition Officers and Senior Procurement Executives have failed to create cultures of continuous study and learning in their organizations and have allowed Heads of Contracting Activities and Chiefs of Contracting Offices to hand out certificates of appointment to the wrong people for the wrong reasons—in order to mollify discontented workers demanding recognition and promotion and to provide enough signatures to keep the paperwork moving.

They have done great harm to the contracting career field, all while showing up to pontificate at "World Congresses" and promoting innovation and the latest big new thing in Contract Management magazine.

It is silly for Supes's managers to think or hope that they can change the people who are disappointing them. It is silly because they, themselves, failed to educate, train, and develop those people and made them contracting officers before they were ready. And whom do those managers blame? They blame their victims.

A manager, no matter how high, who is not a teacher, is not worth a damn.

Just. That. Simple.

@formerfedBut could you have mission success if the contract is poorly designed and drafted, awarded late after a sustained protest, and missing important clauses?

Everyone has a role. A CO's role is to design a contract that is both mission-appropriate and compliant with law and regulation; to award it in a timely manner and in a way that does not result in a successful protest; and to administer it in a manner that facilitates problem resolution and mission accomplishment. In order to do those things the CO needs to be a master of concepts, principles, the applicable rules, acquisition process design, and acquisition process execution.

The CO's client is the program, which looks to the CO for the knowledge and skill necessary to steer it safely past the rocks and shoals and the sandbars and mudflats of acquisition law, regulation, and process.

Think of the CO as a riverboat pilot on the Mississippi, who takes control of the vessel to bring it through a tricky part of the passage on the voyage to ultimate success.

When you take the conn, you have to know the river.

5 hours ago, formerfed said:

My manager in my last government job was a big proponent of customer service.

If contracting officers are professionals, as some still say they are, then they don't have customers, they have clients. There is a world of difference.

4 hours ago, Supes said:

Our leadership team in acquisitions has an issue with our COs, they come to us for every little thing. While we're happy to teach and provide training, it seems that the default when anything arises is to ask their supervisors. I'm talking from simple things like "what's the micropurchase threshold" and "what provisions and clauses should I include" to more complex concepts like "how should we structure this evaluation criteria?" In other offices I've been in, 90% of the questions we answer would have never been brought to the supervisor (lest they think you don't know what you're doing). These are COs with anywhere from 5-15 years of experience under their belt, warranted between $5M and $15M. We provide internal training, opportunities for external trainings, bring in SMEs to talk with the staff, provide materials for them to read and resources for them to use but we're at a loss. Does anyone have any advice, reading, techniques, anything to help us try to get our COs to think for themselves?

You get what you educate, train, develop, and appoint.

Poor education, poor training, careless development, lax standards of appointment... VOILA!

Professionalism is a habit of mind and action. It must be ingrained.

24 minutes ago, Fara Fasat said:

So, in addition to the other problems you pointed out, my question is whether the new EO is an expansion on the current minimum wage coverage.

I'm not sure it is an expansion on President Obama's order. I'll read and compare.

What do you mean by "budget"? Do you mean "the estimated cost specified in the Schedule," "the total amount so far allotted," or something else?

Here's what Section 8 says:

Quote

Sec. 8.  Applicability.  (a)  This order shall apply to any new contract; new contract-like instrument; new solicitation; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if (i):  
          (A)  it is a procurement contract or contract-like instrument for services or construction;
          (B)  it is a contract or contract-like instrument for services covered by the Service Contract Act;
          (C)  it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
          (D)  it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and
     (ii)  the wages of workers under such contract or contract-like instrument are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act.
     (b)  For contracts or contract-like instruments covered by the Service Contract Act or the Davis-Bacon Act, this order shall apply only to contracts or contract-like instruments at the thresholds specified in those statutes.  Where workers’ wages are governed by the Fair Labor Standards Act of 1938, this order shall apply only to procurement contracts or contract-like instruments that exceed the micro-purchase threshold, as defined in 41 U.S.C. 1902(a), unless expressly made subject to this order pursuant to regulations or actions taken under section 4 of this order.
     (c)  This order shall not apply to grants; contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended; or any contracts or contract-like instruments expressly excluded by the regulations issued pursuant to section 4(a) of this order.

That seems clear, but it's not. It applies to "any" new, existing, extended, or renewed "procurement contracts and contract-like instruments" for services and construction, except as provided by paragraphs (b) and (c).

The question of what constitutes a "procurement contract" has been an issue in litigation several times at the GAO, the boards of contract appeals, the Court of Federal Claims, and the Federal Circuit. See, e.g., CMS Contract Management v. Massachusetts Housing Finance Agency, 745 F.3d 1379 (2016) for a case in which the GAO and the Federal Circuit disagreed with the Court of Federal Claims. The GAO and a district court have disagreed as to whether OTAs are procurement contracts. See Nash, "Postscript II: Protesting Other Transactions," The Nash & Cibinic Report, March 2020. Professors Nash and Cibinic have written 87 articles in which they discussed the meaning of "procurement contract."

See also Vanguard Business Solutions v. The Department of State, CBCA 6951, April 16, 2021:

Quote

In a matter of first impression for our Board, we must decide whether the contract that the appellant alleges it formed with the respondent agency (and which the agency denies ever came into being) is properly characterized as a procurement contract for transportation services subject to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2018). The agency maintains that we lack jurisdiction because the alleged instrument is a government bill of lading (GBL). As we explain, we deny the agency's motion to dismiss the appeal for lack of jurisdiction.

Who knows what "contract-like instrument" means? And does "extended" include extensions for excusable delays and other such matters?

Stand by for the implementation by the FAR councils, which, since they don't like to think, will probably just quote the language in the Executive Order.

And senior government officials wonder why innovative startups don't want to do business with the Federal government. My advice is that they run, don't walk, from Federal agency contracts and subcontracts.

I thought only Congress could raise the minimum wage. See Anderson, "Executive Orders, 'The Very Definition of Tyranny' and the Congressional Solution, The Separation of Powers Act," in Hastings Constitutional Law Quarterly (Spring 2002), 29 Hastings Const. L.Q. 589. If challenged in court on constitutional grounds, I wonder if the President's order would survive the current Supreme Court.

We are descending into chaos. Enjoy the ride.

55 minutes ago, here_2_help said:

Yes, it is not organized learning but what do you want from a teen?

@here_2_helpIt sounds systematic to me. There are a lot of ways to learn. I like that he is gathering arcane knowledge. It's the best kind.

11 hours ago, Salus said:

Also, I thought the purpose of the Small Business Act was to ensure small businesses got to compete for small business set asides. There is no question or ambiguity that the company has received 3 times the size standard, and more than the size standard in small business set asides in a year. I know that this is allowed within the regulation. But at the point that the government keeps awarding set-asides to a company that has received more than the size standard in federal contracts in that FY, it starts to seem pretty contrary to the intent of the Small Business Act, even if they are providing a great deal for the government. And it doesn't feel unreasonable to ask the COs to use their available tools to curtail that.

@SalusThat's a reasonable opinion. But keep in mind that government officials are bound by (1) statutes and regulations and (2) the terms of their contracts. NOAA likely complied with law and regulation as they were in 2018. Having done so, they cannot block a contractor from competing for future orders unless they have a legally supportable reason.

The rise in the use of multiple-award task order contracts since the mid-1990s has been disruptive in many ways that were not anticipated when Congress authorized and set rules for their use in 1994. No one expected what has happened since, or the impact on small businesses. There are still issues to resolve with respect to small business policy.

Your disappointment and frustration are understandable, but it does not sound to me like NOAA is deceiving or manipulating you. 

11 hours ago, Salus said:

I would still be interested in any information on situations where the agency itself is responsible for carrying out a size-status determination on its own.

@SalusThe only agency empowered to determine a firm's size status is the SBA. SBA sets size standards and makes size determinations. See 13 CFR Part 121 and FAR 19.302 for details. An agency might have an opinion about whether a firm is or is not small, but that opinion has no official force. The SBA must make a determination, and FAR 19.302(c)(1) instructs contracting officers to refer their own or third-party size protests to the SBA. See also 13 CFR 121.403 and 13 CFR 121.1001.

On 4/28/2021 at 5:49 AM, Freyr said:

Hi all, this is the first time I'm working with an interagency agreement and the question has been brought up of whether or not delivery of an item can be outside the period of performance of the underlying interagency agreement. For example, we have an interagency agreement from 1/1/2021 through 6/1/2021 and award an order to deliver 10 couches but the contractor can't make delivery until 6/15. Would that be allowable? What if they couldn't make delivery until 12/15 (just an example)? Is what matters the POP of the interagency agreement or the available period of the funds (like FY21 funds vs FY22 funds)? It seems like a bona fide need rule issue and I know there's some exceptions to it but I'm not sure how that works with the underlying interagency agreement or how that complicates it. We've been told that performance can't exceed the POP of the interagency agreement but does that also mean all deliveries and acceptances need to be made within that POP?

This is the kind of question that I find both fascinating and frustrating.

Freyr apparently has both the IAA and the order for couches. We do not. Yet Freyr is here asking us what the limits of those agreements will permit. How would anyone here know? Most people seem to think that the answer lies in the agreements themselves.

Why do people ask such questions?

I think such questions arise from a belief or intuition that there is a generic answer that applies to all such cases, and Freyr wants to know what that answer might be. Why do people think such things? I wonder if it arises from training that leads people to believe or suspect that there is a rule for every circumstance and that it is known to someone or can be found: There simply must be a rule for what to do or what may be done in any given situation given specific facts. Maybe there is one BIG rule, like what scientists call "the God equation." It's the rule that will unify all rules and answer all questions. It will tell us why is there something instead of nothing.

This is on my mind because I am reading a wonderful little book entitled, The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy, by the late, great, David Graeber.

I would just mod the order and move on, with no thought about the IAA. What's the other agency going to do? Sue me? Why do we have an IAA with them in the first place? Are we doing the buying for them? Are they paying us? Can one agency terminate another agency for default? Then again, if I extend the delivery date in violation of the IAA, would it render the modvoid ab initio? And what if...

And so it goes.

8 hours ago, Salus said:

My question is about all of these rules they told use they have to follow. I have checked the CFR, FAR, Commerce Acquisition Regulations, the Commerce Acquisition Handbook, and the NOAA Acquisition Manual, and I can't find anything supporting these.

If these are real, can anyone provide a reference? At the moment, I feel like they are just gaslighting us so we won't submit a size status protest.

I presume that  your phrase, "these rules," refers to your bulleted list. If that is correct, then my reaction is that the list is just your description of what you think you were told by NOAA. As such, they are not descriptions of rules; they are merely your account of something that you think you were told. I've been around long enough to know that such accounts are not always reliable reports of what was really said.

You said that the contract in question was awarded in 2018. Is that correct? If so, and if NOAA told you that it does not have to apply the recertification (aka, rerepresentation) rules that took effect late last year to a contract that was awarded in 2018, then it told you the truth. Actually, NOAA cannot apply them, because it would have no contractual right to do so even if it wanted to. Any attempt to apply them would be breach of contract.

The new rules are contractually implemented by a new contract clause, FAR 52.219-28, Post-Award Small Business Program Rerepresentation (Nov 2020). Note the date of the clause. The new clause should not be in a contract that was awarded in 2018, unless it was added later through bilateral modification. Your contract probably includes the July 2013 version of the clause. The law does not give NOAA the authority to unilaterally modify the contract after award in order to implement the new policy.

If you still have issues, then I suggest that you seek information and counsel from a law firm that practices in the field of small business law and regulation.

Here's a truth about multiple-award contracts: To many of the firms that get into them, they turn out to be nothing more than attractive nuisances.

I have long believed that what I call "self-study" is the best way to learn what you need to know to become the best professional you can.

I define self-study as follows: "Self-study is an orderly process of learning about a topic by reading books or articles and thinking critically about their content, without the assistance of a teacher."

I learned most of what I know by going to a quiet corner with a book in hand and reading and taking notes. For me, it started when, as a GS-05 Air Force acquisition trainee, I read a regulation about source selection and wondered about the meaning of "evaluation criteria." It started me down a path that I have never left.

The Government has, for all intents and purposes, abandoned trying to educate and train its contracting personnel. No loss—it has never done a very good job. Generally, the official classes it provided were not excellent. But I recently bought a box of books that were printed by the Industrial College of the Armed Forces in the 1960s for a group "national security" self-study program in which my uncle, an electrical engineer with the old Rockwell Corporation, had participated. One of the volumes was devoted to "procurement." I think that, though now outdated, they are a model for a self-study program for contracting personnel. I have been in touch with DAU to encourage them to adopt such an approach to educating contracting personnel, but DAU has been slow to get off the dime.

Some weeks ago, after I spoke with some personnel at a GSA regional office, a small group of them set out on a self-study program in which they agreed to undertake a five-week deep read of one long chapter in Administration of Government Contracts, 5th edition, by Cibinic, Nash, and Nagle, a book often cited at Wifcon. They are reading Chapter 2, Contract Interpretation, which is 171 pages long. I obtained permission from the publisher to copy and distribute the text of that chapter, and I wrote a short self-study guide for them. I am  not instructing them, but I have provided them with supplementary reading material along the way. They are reading it all on their own time, without official sponsorship or assistance, because they want to learn as much as they can and be the best they can be, and they meet periodically to discuss what they have read. They seized the day and are undertaking the challenge. They are now nearing the end of their unofficial "pilot program." When it's over, I will meet with them to find out whether they think it was useful. I will report what I learn to you here or in a blog entry.

Process improvement and innovation must be achieved through knowledge of concepts and principles. What is a contract? What are the canons of contract interpretation? My take on the acquisition workforce is that most of its members want to know more so they can do more and do better. If that's what you want, then you must accept that you will not get the education in concepts and principles that you need from your employer. You will have to learn on your own, through broad and deep self-study, the way that I and so many of my colleagues did.

As my old colleagues and I get older, we are saddened to see the general decline in the professional status of the contracting workforce. We want to see a return to the professional standing that some of us once had as people deeply immersed in contracting concepts and principles and respected for what we could contribute, not as paper-pushers, but as thinkers. The path to that return is not through official classrooms and "certification" programs, but through books and personal dedication to career-long systematic reading and self-study. You will be what you teach yourself to be.

"If knowledge is power we should look to its advancement at home, where no resource of power will be unwanting."

—Thomas Jefferson, 1821.

OK.

@Freyr What kind of interagency agreement? An assisted acquisition agreement under FAR 17.502-1(a)?

2 hours ago, Fara Fasat said:

Vern - it's not a matter of me being "satisfied." People come here for advice and to learn. If you say something needs special approval, they will accept it. As you well know, much time on this forum is spent in correcting inaccuracies. As for 12.302(c), that addresses tailoring. Nobody is talking about tailoring here. 52.245-1 is already prescribed for CI contracts at 45.107(a)(1)(iii). If a CO inserts it, he or she is not tailoring in violation of 12.302 and does not need a waiver to include it.

@Fara FasatThanks, Fara. Got the message. I'll be more careful in the future.

@Fara Fasat

Quote

FAR 52.244-6... (c)(2) While not required, the Contractor may flow down to subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.

Maybe I should not have used the word "approval," if that's what's bothering you. Poor choice of word on my part. What a contractor or higher level sub puts into a commercial item subcontract is between the buyer and the seller. My bad.

Satisfied?

However, perhaps you'll acknowledge that the use of the word "may" in the clause seems to suggest that the government is saying that the contractor or higher tier subcontractor can add other clauses only under the specific circumstance.

As for including FAR 52.245-1 in commercial item prime contracts, see FAR 12.302, esp. paragraph (c). Is GFP a customary commercial practice?

See FAR Subpart 44.4 and 52.244-6 about the flowdown of clauses to  subcontracts for commercial items.