Jump to content
The Wifcon Forums and Blogs

rafieldjr

DoD Implementation of NDAA 2012 (PL 112-81 ), Sec 808, Para ( c )(1) and ( c )(2)

Recommended Posts

And it's baloney, not "bologna."

Excuse me, Monsieur, but I fear you have been captured by the barbarian Anglocentrics. Baloney is an anglicized version of the Italian word Bologna.

I don't want to create another source of disagreement with the positions you have taken in this thread, but I fear that, if I don't challenge you, you will be saying that the famous spaghetti maker is Chef Boyardee, not Chef Boiardi.

Share this post


Link to post
Share on other sites

Signore,

Baloney (or boloney) is the correct spelling for: foolish or deceptive talk; nonsense, humbug; bologna is the spelling for a seasoned smoked sausage made of mixed meats, which is also spelled baloney by barbaric Americans. Check the Oxford English Dictionary; Oxford Dictionary of English; and the American Heritage College Dictionary, among others. Bologna is not the proper spelling for the meaning Infoseeker intended. I doubt he was talking about sausage. What he has been saying is baloney.

Share this post


Link to post
Share on other sites

Disagree with your disagree 100% on all issues.

Let us see how long this bad memo takes to be retracted. It is only a matter of weeks/months because it is not in touch with reality. It was created by people who are 'not in the trenches.'

Baloney.

Share this post


Link to post
Share on other sites

Apparently, Infoseeker is so deep in the trenches that he doesn't realize that the limitations imposed by the memo are actually imposed by statute, Pub. L. 112-81, Sec. 808. The memo implements paragraphs ( c)(1) and (2). Here is the statutory language:

http://www.wifcon.com/dodauth12/dod12_808.htm

SEC. 808. TEMPORARY LIMITATION ON AGGREGATE ANNUAL AMOUNT

AVAILABLE FOR CONTRACT SERVICES.

(a) LIMITATION.—Except as provided in subsection (B), the total

amount obligated by the Department of Defense for contract services

in fiscal year 2012 or 2013 may not exceed the total amount

requested for the Department for contract services in the budget

of the President for fiscal year 2010 (as submitted to Congress

pursuant to section 1105(B) of title 31, United States Code) adjusted

for net transfers from funding for overseas contingency operations.

(B) EXCEPTION.—Notwithstanding the limitation in subsection (a),

the total amount obligated by the Department for contract

services in fiscal year 2012 or 2013 may exceed the amount otherwise

provided pursuant to subsection (a) by an amount elected

by the Secretary of Defense that is not greater than the cost

of any increase in such fiscal year in the number of civilian billets

at the Department that has been approved by the Secretary over

the number of such billets at the Department in fiscal year 2010.

( c) GUIDANCE.—Not later than 60 days after the date of the

enactment of this Act, the Secretary shall issue guidance to the

military departments and the Defense Agencies on implementation

of this section during fiscal years 2012 and 2013. The guidance

shall, at a minimum—

(1) establish a negotiation objective that labor rates and

overhead rates in any contract or task order for contract services

with an estimated value in excess of $10,000,000 awarded

to a contractor in fiscal year 2012 or 2013 shall not exceed

labor rates and overhead rates paid to the contractor for contract

services in fiscal year 2010;

(2) require the Secretaries of the military departments

and the heads of the Defense Agencies to approve in writing

any contract or task order for contract services with an estimated

value in excess of $10,000,000 awarded to a contractor

in fiscal year 2012 or 2013 that provides for continuing services

at an annual cost that exceeds the annual cost paid by the

military department or Defense Agency concerned for the same

or similar services in fiscal year 2010;

(3) require the Secretaries of the military departments

and the heads of the Defense Agencies to eliminate any contractor

positions identified by the military department or

Defense Agency concerned as being responsible for the performance

of inherently governmental functions;

(4) require the Secretaries of the military departments

and the heads of the Defense Agencies to reduce by 10 percent

per fiscal year in each of fiscal years 2012 and 2013 the funding

of the military department or Defense Agency concerned for—

(A) staff augmentation contracts; and

(B) contracts for the performance of functions closely

associated with inherently governmental functions; and

(5) assign responsibility to the management officials designated

pursuant to section 2330 of title 10, United States

Code, and section 812(B) of the National Defense Authorization

Act for Fiscal Year 2006 (Public Law 109–163; 119 Stat. 3378;

10 U.S.C. 2330 note) to provide oversight and ensure the

H. R. 1540—193 implementation of the requirements of this

section during fiscal years 2012 and 2013.

(d) DEFINITIONS.—In this section:

(1) The term ‘‘contract services’’ has the meaning given

that term in section 235 of title 10, United States Code, except

that the term does not include services that are funded out

of amounts available for overseas contingency operations.

(2) The term ‘‘function closely associated with inherently

governmental functions’’ has the meaning given that term in

section 2383(B)(3) of title 10, United States Code.

(3) The term ‘‘staff augmentation contracts’’ means contracts

for personnel who are subject to the direction of a government

official other than the contracting officer for the contract,

including, but not limited to, contractor personnel who perform

personal services contracts (as that term is defined in section

2330a(g)(5) of title 10, United States Code).

(4) The term ‘‘transfers from funding for overseas contingency

operations’’ means amounts funded out of amounts available

for overseas contingency operations in fiscal year 2010

that are funded out of amounts other than amounts so available

in fiscal year 2012 or 2013.

Infoseeker, shouting from the trenches where he is keeping his head below the parapet, thinks the memo will be withdrawn in "weeks/months". I don't see how, unless Congress repeals the law or the Secretary of Defense intends to lead a coup d'etat.

Share this post


Link to post
Share on other sites

Signore,

Baloney (or boloney) is the correct spelling for: foolish or deceptive talk; nonsense, humbug; bologna is the spelling for a seasoned smoked sausage made of mixed meats, which is also spelled baloney by barbaric Americans. Check the Oxford English Dictionary; Oxford Dictionary of English; and the American Heritage College Dictionary, among others. Bologna is not the proper spelling for the meaning Infoseeker intended. I doubt he was talking about sausage. What he has been saying is baloney.

The poster said he was negotiating with bologna. I have negotiated with bologna as well as mozzarella and prosciutto. However, the value was below $10 million, and they were commercial items. So, the 6 June memo was inapplicable.

Share this post


Link to post
Share on other sites

I have a technical question regarding the June 6 "Class Deviation." From what FAR/DFARS section or requirement is DoD deviating? Could it be that this is another DPAP Policy memo that has been issued in the guise of a deviation?

Share this post


Link to post
Share on other sites

I have a technical question regarding the June 6 "Class Deviation." From what FAR/DFARS section or requirement is DoD deviating? Could it be that this is another DPAP Policy memo that has been issued in the guise of a deviation?

DFARS 215.406-1 Prenegotiation objectives.

Share this post


Link to post
Share on other sites
Guest Infoseeker

Vern,

That gigantic cut and paste thing you did - that is pure bologna.

This memo will be withdrawn very soon. As soon as the people in the trenches (private industry and KOs) have to deal with this, the insanity and nonsense of it will SHINE like a piece of bologna on fire in a dark room.

Keep those goofy citations out of this, it will be removed soon. Once again, the trenches will prove to be correct, as they always are.

Share this post


Link to post
Share on other sites

Infoseeker:

Boy, you really have gone off the deep end. Why should I keep the citation out? The memo itself says that it was issued to implement the statute I cited. You're losing it, Info. Try to hang in there until we can medevac you out.

Where DO you get your sensational similes? "Shine like bologna on fire in a dark room"? Really?

Share this post


Link to post
Share on other sites

I just tried to burn a piece of bologna. Nothing. Wouldn't catch fire, much less shine. I tried both dry and wet. Is there a secret? :huh:

Share this post


Link to post
Share on other sites

DFARS 215.406-1 Prenegotiation objectives.

I don't see a deviation from that section which merely refers yo to the PGI. If anything, the "deviation" is an addition to the PGI.

Share this post


Link to post
Share on other sites

... it will SHINE like a piece of bologna on fire in a dark room.

I just tried to burn a piece of bologna. ...

Sweet, Garlic,or Oscar Mayer?

Share this post


Link to post
Share on other sites

I'm not sure. I don't eat bologna, but there was some in the fridge from a catered party. I don't know what brand it was.

It was kind of old. Could that be why it didn't shine/burn? Shining bologna. I'd like to see that. Imagine if the Blade Runner script could be rewritten:

"I've seen things you people wouldn't believe. Attack ships on fire off the shoulder of Orion. I watched c-beams glitter in the dark near the Tannhäuser Gate. Shining bologna. All those moments will be lost in time, like tears in rain. Time to die."

Share this post


Link to post
Share on other sites

I have a technical question regarding the June 6 "Class Deviation." From what FAR/DFARS section or requirement is DoD deviating? Could it be that this is another DPAP Policy memo that has been issued in the guise of a deviation?

Sometimes DPAP issues things that they call "class deviations" that are technically not deviations at all. Another example is Class deviation 2012-O0006, Update to Accelerated Payments to Small Business. Conversely, DPAP sometimes issues things they call "policy memos" that are really class deviations. I don't know why they do this.

Share this post


Link to post
Share on other sites

Sometimes DPAP issues things that they call "class deviations" that are technically not deviations at all. Another example is Class deviation 2012-O0006, Update to Accelerated Payments to Small Business. Conversely, DPAP sometimes issues things they call "policy memos" that are really class deviations. I don't know why they do this.

In this case, the 6 June memo addresses negotiation objectives. And, it is implementing legislation. It makes sense to me to implement legislation affecting DoD Prenegotiaiton Objectives by issuing a deviation to the DFAR section addressing Prenegotiaion Objectives for DoD.

Am I full of bologna?

Share this post


Link to post
Share on other sites

It could be a deviation as defined at FAR 1.401(f), in which case there would be no specific rule from which the policy deviates. The memo says that the subject matter will be incorporated into the FAR or DFARS unless it is rescinded. My guess is DFARS.

I called around yesterday to people in DC to ask if the statute is any kind of major problem and no one seemed to think that it is. No one knew of any repeal effort. I've still got a couple of calls out, and if I learn anything I'll post it.

napolik, I've never known you to be a big fan of bologna. You're mostly a mozzarella di bufala, pizza, and seafood guy, with the exception of the occasional steak when in Toscana or Crystal City. You're probably full of octopus or some really horrid-looking Mediterranean fish from time to time, maybe salami, but not bologna.

Share this post


Link to post
Share on other sites

Just learned that there is a plan to clarify the June 6 memo to answer some questions about its meaning. It appears that there is widespread misunderstanding among COs of both the statute and the memo. The memo won't be rescinded.

The Senate version of the FY 2013 NDAA would extend the rule into FY 2014.

Share this post


Link to post
Share on other sites

Thanks for posting that, Vern. Infoseeker and I eagerly await the more careful re-reading of the "deviation", to be following by the gesture of the hand clasped over the agape mouth, and the muffled utterance, "What were we thinking?!..." Perhaps it will be found that the "misunderstanding" of those whiney COs reading plain English will be best "clarified" by rewriting the law and its implementing memo.

By the way, I have been at this for 39 years (contracts, program, and operations management, government and industry). I have done plenty of negotiating - on narrow to broad charters. I get it. This subject has nothing to do with that - it has to do with a nonsensical piece of guidance that represents a growing tendency out of Base Camp Beltway to those of us on on the LZs and FSBs (I'm also a Vietnam vet).

Share this post


Link to post
Share on other sites

One. More. Time. We are talking about statute. The DOD policy memo merely implements the statute pending inclusion in FAR or DFARS. The guidance provided by DPAP was largely dictated by statute. Are you complaining about the statute or the DPAP implementation?

If you're complaining about the statute, you're wasting your breath. You have a problem to solve, so start solving it.

If you're complaining about the DPAP implementation, be specific. What's bothering you? Does the memo depart from the statute? How so? Do you not understand it? What part?

I would not ask for clarification. The statute and the memo leave some wiggle room. Perhaps intentionally. The clarification might not.

Instead of complaining, why don't we focus on figuring out what the statute and DPAP guidance say?

1. The limitation is not on individual contracts, but on contract services "in the aggregate." The exact amount of the limitation is will be hard to determine, because it is not specified in absolute terms. Thus, there are no Antideficiency Act risks for contracting officers.

2. The limitation does not apply to contract services for overseas contingency operations and to contracts"relating to" research and development. Those are rather broad exceptions and cover a lot of contracts.

3. The limitation is not absolute, but can be exceeded as "elected" by the Sec. Def., within limits.

4. The guidance dictated by the statute and revised by DPAP is designed to help attain the goal in the aggregate and sets no limits on the amounts negotiated for individual contracts.

5. The DPAP guidance does not apply to contracts covered by the the Service Contract Act, contracts for commercial items, and to competitively awarded contracts.

Share this post


Link to post
Share on other sites

Some practical concerns being expressed by PCOs that I have heard:

1. Paragraph (1) of the memo makes reference to "...rates paid to the contractor for the same or similar contract services performed under contract with procuring DoD component in fiscal year 2010". (Note: The emphasized language was not in the statute.) DPAP uses DoD Component as a broader context in its various memos than the contracting activities it lists in the DFARS 202.101. (No defintion of DoD Component exists in the DFARS.) Several DoD Components (e.g., Navy, Army) are rather large entities with multiple Heads of Contracting Activity which often have smaller procuring activities thereunder. So how will a PCO at one Navy buying activity know the rates of same or similar services paid in FY10 to a contractor under any contract/order across the entire Navy?

2. The same concern applies to paragraph (2) with regards to the annual price (not rates) paid in FY2010. How would a PCO find this out and how could a Secretary of MILDEP or Head of Defense Agency verify?

3. Paragraph (1) can be interpreted to mean a specific contractor and how the FY12/13 to-be-negotiated rates compare to FY10 rates paid to that same contractor. Can paragraph (2) be interpreted the same way? I say yes. Even if it is ambiguous, a PCO simply applies the notion of "contra proferentem" so if the drafters of the statutory/regulatory/policy language aren't nonambiguous they should not blame the folks for how they interpret the language but use more specific, exact language. However, applying that same approach for interpreting "DoD component" in paragraph (2) to mean HCA level or lower-tier procuring activity likely wouldn't be taken by the HCAs or lower-tier procuring activities without knowing how the waiver authority (SPEs) would interpret it and the SPEs are trying to work that out with the DAR Council know.

Until the PGI language comes out, HCAs, lower-tier procuring activities, and PCOs are left to their own discretion. The PCOs are the ones executing the contracts/orders so they need to exercise their independent business judgment when interpreting the existing statutory and class deviation language. This is what we have to do when statutory/regulatory/policy language that is ambiguous.

Share this post


Link to post
Share on other sites
Until the PGI language comes out, HCAs, lower-tier procuring activities, and PCOs are left to their own discretion. The PCOs are the ones executing the contracts/orders so they need to exercise their independent business judgment when interpreting the existing statutory and class deviation language. This is what we have to do when statutory/regulatory/policy language that is ambiguous.

Bingo. And if you're lucky you won't get clarification any time soon.

Share this post


Link to post
Share on other sites

So is this the new, acceptable norm? When ambiguous, confusing direction comes out of Washington, contracting officers should revel in the opportunity to leverage the uncertainty by using their best business judgment? Is this the Mad Hatter's tea party?

--and, in anticipation of the claim that it is our responsibility to interpret language rife with multiple interpretations, as that is a basic responsibility of practicioners of contract law - no, I'm sorry, it has NOT always been this way. This is a new era of blatant ambiguity and impracticality that I have not seen before.

Here's what SHOULD happen: DPAP should go to the Hill with a well stated petition to have the law changed to something that makes sense - something that doesn't merely rely on testimony that services represents a low hanging fruit ripe for the cost-saving picking (see the Wifcon marginal notes for Section 808). They should then implement the rational law in the normal fashion, such as not to engender the kind of general confusion that we now see. What a concept.

Sorry, Vern and Napolik, the emperor has no clothes.

Share this post


Link to post
Share on other sites

Sure, DOD should go to Congress if it wants the law changed. In the meantime, the law is there, whether you or anybody else likes it or not.

Keep in mind that the heart of the statute does nothing more than limit aggregate obligations by DOD. It does not limit obligations of any particular DOD component (Army, Navy, Marines or Air Force), or of any contracting activity, or of any contracting office. DOD has to figure out how it will comply and extend instructions to its subordinates. Congress ordered DOD to issue guidance and said that the guidance must say particular things. Beyond that, it is up to DOD to decide how it will comply. Until then COs should read the guidance, decide what it means, and go forward as best they can until given other instructions. It will take time for DOD to sort things out and guidance will be evolutionary. Deal with it.

I hope you keep posting in the way that you have, because it gives me the opportunity to show our young people how a professional should respond in this situation, which is to think, plan, and act, not to complain, whine, and make cryptic predictions of imminent doom. They have two models to follow: you, on the one hand, and Napolik and me on the other. They can choose.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×