Jump to content
The Wifcon Forums and Blogs

Recommended Posts

Hogwash. From the Congressional Record (Senate), March 26, 2010, page S2163:

Emphasis added. Gee, I wonder if the bill has anything to do with the "impudence" of the Executive Branch.

Of course it does. Note how the legislature is having to take affirmative steps to CHANGE the law here.

In the meantime, why is the Executive Branch not following the law as it is written now?

Answer:

1) Royalist impudence and disrespect for the law.

2) Disrespect for dispossessed persons who are unlikely to contribute to their political campaigns.

Share this post


Link to post
Share on other sites

Congress would say it's changing the text to make its original intentions more clear.

The Executive is following the law as they have interpreted it. They are not bound by the GAO or the Court of Federal Claims, except as a decision of the court applies to a particular contract action. It is my understanding that the Executive is appealing the court's decision in the particular case to the Federal Circuit. Only the Federal Circuit or the Supreme Court can make a binding decision about a generally applicable interpretation of the statute.

Impudence and disrespect are redundant. Either way, the administration respects the law as they interpret it, which they are entitled to do under the Constitution until the Federal Circuit or the Supreme Court make a binding decision. As for respect of "dispossessed" persons (of what, exactly, have they been dispossessed), it is absurd to say that the Obama Administration does not feel for the poor. It almost crashed and burned trying to get health care for the working class and the poor. Why can't you disagree without the polemical rhetoric, which comes across as silly and over-the-top? We can all see that you're mad as hell, but what's that going to get you? I don't think you're winning anyone over with it, but maybe I'm wrong. If all you're doing is using the forum to vent, why not say so and we'll all just ignore you or show your posts to our friends for laughs.

Share this post


Link to post
Share on other sites
Congress would say it's changing the text to make its original intentions more clear.

Not sure where you are going with all of the personal stuff. This is an interesting issue, and there is room for more than one view of it. I happen not to have any respect for your view, which conflicts with 2 GAO decisions and the Court of Federal Claims, but I will confine my remarks to the issue in controversy.

1) The composition of Congress changes. The priorities change as well. Often, current Members attempt to characterize what past the past Congress "really meant" in this law or that. The best way still to determine that isn't through later-day press releases by current Members, but by reading the law as it was written, passed and signed.

2) My position is consistent with 2 GAO decisions and a COFC decision.

3) There are reasons for this attempted CHANGE. Ignoring the shifting priorities and passing it off as a big misunderstanding between the old congress and the new conflicts with reality. There are policy reasons for the attempted change.

Share this post


Link to post
Share on other sites

I understand your argument, and I respect it. The problem that I have with you is that you refuse to accept the possibility that people of good will can have a different view. Instead, you attribute the opposing opinion to "royalism" and impudence and a lack of sympathy toward what you call the dispossessed, which is absurd.

Best of luck to you.

Share this post


Link to post
Share on other sites
This is an interesting issue, and there is room for more than one view of it.

How can this be a clear example of "royalist impudence and disrespect for the law," yet at the same time be an interesting issue with room for more than one view? I guess there is no room for the government's view? Or does that only apply when your view is being challenged?

Share this post


Link to post
Share on other sites
How can this be a clear example of "royalist impudence and disrespect for the law," yet at the same time be an interesting issue with room for more than one view? I guess there is no room for the government's view? Or does that only apply when your view is being challenged?

Yes, the role of the Courts is to generally interpret the law as written, not necessarily as supposedly originally intended by Congress. Congress can include amendments that change the written, original expressed intent and can slant the record accompanying the bill to further personal opinions and agendas. The names of some laws look similar to slick commercial advertisements. What does "new menu" mean - higher prices, better food - what? What is "new and improved" - cheaper to manufacture? Any bill with "Improvements to ...." or ...Improvement Act" makes me suspicious. Improvements for whom - special interests?

That said, as stated above, the GAO's interpretations are apparently just that - interpretations. We'd only need one judge or lawyer if there was only one way to interpret every law or regulation and if the actual situational applications didn't change over time. If Congress wants to "clarify" the original intent, they ought to pass the pending Legislation.

Share this post


Link to post
Share on other sites
How can this be a clear example of "royalist impudence and disrespect for the law," yet at the same time be an interesting issue with room for more than one view? I guess there is no room for the government's view? Or does that only apply when your view is being challenged?

I'm not going to get into a Junior High civics class here, but your comment is emblematic of the very royalism of which I wrote. See, it's not the "Government's view." It's the Executive Branch's view. There are two other branches...

Share this post


Link to post
Share on other sites
I'm not going to get into a Junior High civics class here, but your comment is emblematic of the very royalism of which I wrote. See, it's not the "Government's view." It's the Executive Branch's view. There are two other branches...

Try reading beyond Junior High. I suggest GAO, COFC and CAFC opinions, where you will see an agency's argument is routinely referred to as the government's position or view. If you think use of the phrase "Government's view" is emblamatic of royalism, I don't know what to tell you, other than you are embarrassing yourself.

Share this post


Link to post
Share on other sites
Try reading beyond Junior High. I suggest GAO, COFC and CAFC opinions, where you will see an agency's argument is routinely referred to as the government's position or view. If you think use of the phrase "Government's view" is emblamatic of royalism, I don't know what to tell you, other than you are embarrassing yourself.

I'm blushing even now, Iron Man.

I prefer to confine the error to as small a group as possible. The GAO will frequently use the term "Agency," which I think is fine and confining. I'm not going to word search it, but I don't remember the COFC referring to the defendant's argument in the MCS case as the "Government's view," but I acknowledge I have not scanned the whole document like some sort of word search puzzle.

Three questions:

1) Do you think the Executive Branch is appealing because the leadership really thinks that's what the law says?

2) How would you handicap the appeal?

I will opine that the appeal will go nowhere, that everybody (including the people filing it) knows it, and that its intent is to serve twin purposes: a ) To give the legislature more time; and b ) As a lobbying effort back to the legislature.

We'll see.

3) Is there anyone in the forum who genuinely believes that any respective program is exactly equally meritorious of preference in Government Contracting based on policy considerations?

An agency should follow whatever priority the law establishes. I do not believe that all of the programs are equally meritorious from a policy/values standpoint. "Parity" is a cop-out, a failure to establish priorities about what is important, or, failing that, a suspicious value declaration.

I imagine it going like this:

"What programs are good?"

"They're all good."

"How good?"

"Really good."

Which one is best?"

"All of them."

"Equally best?"

"Yes."

Share this post


Link to post
Share on other sites
Is there anyone in the forum who genuinely believes that any respective program is exactly equally meritorious of preference in Government Contracting based on policy considerations?

That question really asks whether anyone believes the programs to be morally equal. Based on earlier posts, federalcontracts argues that the HUBZone Program is morally superior because it is aimed at helping the "dispossessed."

According to 13 CFR ? 126.100, the purpose of the HUBZone Program is "to provide federal contracting assistance for qualified SBCs located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas."

According to 13 CFR ? 126.200, in order to be a HUBZone firm a company need only (1) be located in a HUBzone or an Indian reservation, (2) be a small business in the applicable NAICS code, and (3) promise to try ensure that 35 percent of its people employed under the contract live in a HUBZone in Indian reservation. The firm need not be owned or controlled by a person in any particular socio-economic category.

The HUBZone program does not require that either the persons who own the firm or that the persons who work for the firm are actually among the "dispossessed." Now, I live in a suburb of Portland, Oregon, and I just checked the HUBZone map for my area, which I accessed at http://map.sba.gov/hubzone/init.asp#address, and I learned that the area in Northwest Portland along the Willamette River is a HUBZone. That HUBZone includes the Pearl District, Zip Code 97209, within which lie the most expensive townhomes and condos, the toniest restaurants, and the most fashionable clothing stores in the Pacific Northwest. It is the home of two expensive doggie day-care businesses. One of my friends bought one of the condos for almost one million dollars and sold it a month later, without ever moving into it, for $1.5 million and a tidy profit. He sold it because he didn't think his dog would be happy there. Maybe the dog is dispossesed, I don't know.

I fail to see any moral superiority in such a program.

My vote is for the SDVOSB Program. Count me among the impudent royalists. :P

Share this post


Link to post
Share on other sites
The HUBZone program does not require that either the persons who own the firm or that the persons who work for the firm are actually among the "dispossessed." Now, I live in a suburb of Portland, Oregon, and I just checked the HUBZone map for my area, which I accessed at http://map.sba.gov/hubzone/init.asp#address, and I learned that the area in Northwest Portland along the Willamette River is a HUBZone. That HUBZone includes the Pearl District, Zip Code 97209, within which lie the most expensive townhomes and condos, the toniest restaurants, and the most fashionable clothing stores in the Pacific Northwest. It is the home of two expensive doggie day-care businesses. One of my friends bought one of the condos for almost one million dollars and sold it a month later, without ever moving into it, for $1.5 million and a tidy profit. He sold it because he didn't think his dog would be happy there. Maybe the dog is dispossesed, I don't know.

I fail to see any moral superiority in such a program.

My vote is for the SDVOSB Program. Count me among the impudent royalists. :P

I'll bet you drive a Subaru, too. :P

Share this post


Link to post
Share on other sites
That question really asks whether anyone believes the programs to be morally equal. Based on earlier posts, federalcontracts argues that the HUBZone Program is morally superior because it is aimed at helping the "dispossessed."

My vote is for the SDVOSB Program. Count me among the impudent royalists. :P

I favor the HUBZone program among the existing programs. You favor the SDVOSB. The point here is: You favor an order of priority, which is antithetical to notions of parity.

The "dispossessed" is a fine term. I don't know why you persist in mocking it, but to each his or her own.

Here is an example of how the term is used:

http://www.newsweek.com/id/213699

If you were to design a program that would meet whatever socioeconomic objectives you hold dear, without confining it to exisiting programs, what would it do and how would it operate?

Share this post


Link to post
Share on other sites

I know how dispossessed is used. I don't need to read Newsweek, of all things, to understand the usage. Disadvantaged is more appropriate than dispossessed. Appropriate usage of dispossessed is as in the title, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands.

If I were to establish a socio-economic program, it would not be based on set-asides. Set-asides guarantee nothing but best efforts. I would establish an an incentive program that would reward firms based on proven contributions to the employment of persons in specific groups or residing in specific regions. Companies would receive a significant cash bonus amounting to a percentage of the dollar value of the verifiable employment that they had provided to such groups and regions under specific contracts and subcontracts. Firms that had made especially significant contributions would also receive annually renewable favorable consideration certificates for use in future source selections. Annual renewal would be based upon continued contribution.

Bonus percentages would be annually determined by Congress, not by the agencies, and would be paid out of a Congressionally appropriated special fund, and not out of agency program funds.

No program admission applications. No status certifications and status protests. All certifications of achievement would be after-the-fact and subject to audit, false claim and fraud prosecution, and severe civil and criminal penalties. No consideration of "proposed" contributions during source selection.

Share this post


Link to post
Share on other sites
How does that quote support the notion that parity was not intended? It does not come across that way to me.

I don't know who said "wholesale scam." Not me. I said scam-ridden, and that it is. Read the GAO report. 8(a) is scam-ridden, too. I don't know about SDVOSB. I hope not.

I am not anti-HUBZone. I am pro parity.

Vern, why are you pro-parity?

Share this post


Link to post
Share on other sites
And we know who sets those goals...

Actually, I don't know. Who sets them? I always thought it was some kind of deal among OMB, SBA, and the cognizant congressional committees. Is that wrong?

Retread: Seeker answered your question for me. I support parity because it lets the Exec allocate set-asides as necessary to meet its goals. With so many special-pleaders trying to get a piece of the pie, it's the only way to keep all of them happy, or at least equally unhappy. I guess federalcontracts thinks the Great Satan sets the goals, so they're evil.

I would do away with all the special-pleader categories and the associated set-asides and focus on actual benefits conferred on the targeted groups and regions. I would reward contractors on the basis of what they actually accomplish, rather than on their status and promises. I'd let SBA go back to making business loans. That's what they really care about.

Never happen.

Share this post


Link to post
Share on other sites
I just read a GAO report on small business goals. The SBA sets them! The Great Satan!

The establishment of government-wide goals is an Executive Branch responsibility, but the law establishes a floor.

(See 15 U.S.C. 644(g)(1)) )

Share this post


Link to post
Share on other sites
The establishment of government-wide goals is an Executive Branch responsibility, but the law establishes a floor.

(See 15 U.S.C. 644(g)(1)) )

The flaw in your argument is that you assume there is no possible alternative interpretation of the law and no other possible "floor."

Have you read DOJ's memo supporting SBA's parity regulations as a permissible interpretation of the law?

http://www.justice.gov/olc/2009/sba-hubzon...inion082109.pdf

Personally, I think DOJ's argument is weak and the law as written, whether intentionally or not, provides HUBZone's with priority. However, DOJ's argument is not totally off the wall. I've certainly seen weaker arguments prevail in litigation. The government, or if you prefer the executive branch :) , has regulations and a long standing practice of parity, and it has a straight-faced legal argument it believes supports that practice and those regulations. An agency loss at GAO or the COFC is not the end of the process and the agency is not required to immediately abandon its position. If at the end of the appellate process MCS is successful, the Executive Branch will comply with the decision. However, there is a process for resolving different legal interpretations. Pursuing rights under that process is not wrong or evil, even when it is a federal agency pursuing those rights.

Share this post


Link to post
Share on other sites

I don't have a problem with the executive branch pursuing their rights, although I think that we are wrong and that the CAFC will make quick work of us. However, I think that it's irresponsible for policy folks to advise their COs to proceed as if there were parity given the current situation.

Let's say that there is someone trapped in a building that needs your help. There are three different ways to get to them--you can go through Door #1, #2, or #3. Each of the doors opens to a different room that you must pass through in order to get to the person in need. Behind door #1 lurks a hungry tiger, behind Door #2 lurks a hungry bear, and behind Door #3 there is an empty room. If you go through Doors #1 or #2, there's a chance that you might get mauled and won't be able to help the person in need. In fact, one person has already tried Door #1 and has been mauled. Two people have gone through Door #2 and have been mauled. If you go through Door #3, you can simply pass through the room and get to the person in need.

There is someone there to guide you and they tell you that even though there is a tiger behind Door #1 and a bear behind Door #2, you should pretend that they are not there when choosing doors.

What would you think of your guide's advice?

You = CO

Person trapped in building = your customer

Door #1 = The SDVOSB program

Door #2 = The 8(a) Program

Door #3 = HUBZone set-aside

Your guide = Your policy folks

Share this post


Link to post
Share on other sites

I see we have no students of American history participating.

Government agencies have opinions and policies, but they do not have rights. This is not a matter of the "rights" of the Executive Branch. The Executive Branch must enforce laws and to do that they must interpret them. The Executive Branch has interpreted the small business laws, undoubtedly in cooperation with the cognizant Congressional committees. The GAO is not mentioned in the Constitution. It has an opinion that the Executive Branch is not obliged to credit. The Court of Federal Claims is not mentioned in the constitution, either. It's rulings are binding only in particular instances. I won't hazard a guess as to what the Federal Circuit will say. It has overturned the Court of Federal Claims frequently in recent years. The Executive Branch is pursuing its policy interests in that court. The criticism that is being laid down here is unwarranted. The matter will play itself out in court or in legislation, as it should. The Door 1, Door 2 thing is a lot of bull.

Share this post


Link to post
Share on other sites
I see we have no students of American history participating.

Government agencies have opinions and policies, but they do not have rights. This is not a matter of the "rights" of the Executive Branch. The Executive Branch must enforce laws and to do that they must interpret them. The Executive Branch has interpreted the small business laws, undoubtedly in cooperation with the cognizant Congressional committees. The GAO is not mentioned in the Constitution. It has an opinion that the Executive Branch is not obliged to credit. The Court of Federal Claims is not mentioned in the constitution, either. It's rulings are binding only in particular instances. I won't hazard a guess as to what the Federal Circuit will say. It has overturned the Court of Federal Claims frequently in recent years. The Executive Branch is pursuing its policy interests in that court. The criticism that is being laid down here is unwarranted. The matter will play itself out in court or in legislation, as it should. The Door 1, Door 2 thing is a lot of bull.

Pursuing policy interests in court is fine. Telling COs that they are free to treat SDVOSB, HUBZone, and 8(a) as equals in the meantime is irresponsible when you know that they will lose protests and delay their procurements.

Share this post


Link to post
Share on other sites
The Executive Branch must enforce laws and to do that they must interpret them.

Thumbing the President's nose at the courts has always gone so well in the past. Sometimes, I swear, I can't tell if that's Vern Edwards or Andrew Jackson posting.

I keep looking through Article II, and I'm just not seeing the part you reference. I see: "He shall take Care that the Laws be faithfully executed." Then I look in article III, and I read, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. " I see the power of Congress to establish Article I tribunals.

Alexander Hamilton wrote in the Federalist Papers: "The interpretation of the laws is the proper and peculiar province of the courts."

There's this little 1803 case that's gotten some press called Marbury v. Madison, which states, "It is, emphatically, the province and duty of the judicial department, to say what the law is." Maybe Chief Justice Marshall and the Marshall court would have changed its mind if only it had received the May 2010 "Assad Memo."

If you don't believe this Marbury v. Madison business, no less a source than the White House web page acknowledges, "Federal courts enjoy the sole power to interpret the law." http://www.whitehouse.gov/our-government/judicial-branch (That came straight from the throne, you royalists... :) )

The course of action being taken has the indicia of Executive Branch nonacquiescence, which I personally loathe. Writes Bradley Canon, "An agency may deliberately interpret the court's decision to find it inapplicable to itself by using convoluted reasoning, citing other authority or invoking unusual circumstances...More often a process of cognitive dissonance will set in and an agency will interpret the decision as inapplicable, or to apply only in minor or limited circumstances." That sounds familiar.

Not surprisingly, the Executive Branch engages in stall tactics, subversion, obfuscation and silliness most often when a decision does not meet its current political aims, as is the case here.

This bit about "I talked with the current chair of the subcommittee, and she knew a lady who used to be the ranking member of that same committee just a few years after the legislation was originally passed and she said that what the legislation REALLY meant to say was...' argument is classic obfuscation. I see smart people who put too much trust in people's straightforwardness nod along with this kind of "reasoning."

Share this post


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

×