Jump to content
The Wifcon Forums and Blogs

physiocrat

FAR Council Is Anyone Competent?

Recommended Posts

So, a single award GSA BPA is limited to one year but can have up to 4 option periods. Remarkable considering a BPA is not a contract because it lacks consideration (established law) but presumably the Council wants us to use unilateral option clauses to exercise these hypotheical option periods on a non-binding agreement? Nonsense.

I think the FAR council, rather than me, needs to create a deviation. In the interim, I will ignore the option requirement for GSA BPAs as I ignore Obama's executive orders also, after all what is the penalty for violating an executive order, an IRS audit?

Big deal, not a problem.

Oh, and Vern, my last trip to Gettysburg was stellar but didn't meet a lot of fancy women as most folks are there on vacaiton with family and friends rather than romance but I'm still looking for the wify in Kansas City.

Tnx. no comments are requested, think about it on your own.

Share this post


Link to post
Share on other sites

I take it you have not read either FAR 8.405-3 or the GSA policies on the BPAs, in which it is explained that despite the common name, that a MAS BPA and a FAR 13 BPA have nothing to do with each other?

Share this post


Link to post
Share on other sites

I would think the penalty for ignoring an executive order would be at a minimum insubordination. Further, executive orders have the force and effect of law, and as a contracting officer, we have a duty to comply with Federal law.

I read the intent of FAR 8.405-3 as Congress wanting agencies to "spread the wealth" in BPA awards by making multiple awards. The advantage is that agencies could have a litmus test to determine prices fair and reasonable by competing each Call Order with BPA holders. On the same token, agencies can choose to make a single award, but it is more difficult. The purpose of the "unilateral option" is more of a mechanism to ensure the single award BPA still represents the best value

I was originally unsupportive of the language in FAC 2005-50 that included the option requirement for these types of BPAs. However, in practice this change has saved at least a few agencies a couple million dollars. Contract specialists now are forced to at least document to their reviewing officials that they reviewed the BPA prices and GSA schedule before the agreement is extended. In one such review two years ago, we found that the Contractor's GSA rates were adjusted downward because of the EPA clause. The Contractor conveniently neglected to tell us, but because of that review, we negotiated a price even lower than that revised schedule rate.

Share this post


Link to post
Share on other sites

I would think the penalty for ignoring an executive order would be at a minimum insubordination. Further, executive orders have the force and effect of law, and as a contracting officer, we have a duty to comply with Federal law.

It may be true that an agency will require a CO to comply with an executive order, but it is not true that all executive orders, or the regulations issued pursuant to them, have the force and effect of law. See Chrysler v. Brown, 441 U.S. 281 (1979) and Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

To say that an executive order or regulation has the force and effect of law means that the courts will enforce it as if it were a statute enacted pursuant to Constitutional procedures. Under the Constitution, the president does not have the authority to write laws. Thus, the Supreme Court has held in order for an executive order to have the force and effect of law it must itself be grounded in a specific statute or congressional delegation of authority or in the Constitution. In Youngstown, cited above, the Supreme Court said:

The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.

(An example of an executive order having the force and effect of law based on the Constitution would be an order grounded in the president's authority as commander-in-chief.)

In Chen v. I.N.S., 95 F.3d 801 (1996), the 9th Circuit rejected the contention that a regulation issued pursuant to an executive order had the force and effect of law, because:

The Executive Order states as its authority the “laws of the United States of America,” but fails to mention any specific section in the federal code. Chen argues that 8 U.S.C. §§ 1103(a), 1101(a)(42)( c) & 1182(f) provide the requisite legislative authority. However, § 1103(a) delegates general authority over immigration affairs to the Attorney General, not the President; § 1101(a)(42)( c) applies only to persons physically residing outside the United States, not to persons in exclusion proceedings; and § 1182(f) is not relevant because it pertains to suspending immigration. Thus, Congress did not explicitly delegate the requisite authority.

Share this post


Link to post
Share on other sites

FAR does that because it is an issuance of the Executive Branch and the president wants the Executive Branch to do what he tells them. FAR has the force and effect of law, because it is issued pursuant to statute and congressional delegation of authority. See e.g., 41 USC 1121. Thus, COs must comply with executive orders, unless the courts say otherwise.

It's up to the courts to decide whether an executive order has the force and effect of law. As I explained above, a federal court might conclude that a particular executive order does not have the force and effect of law. So we shouldn't make a general assertion that "executive orders have the force and effect of law...." Some do; some don't.

Share this post


Link to post
Share on other sites

Civ_1102 –

I’m not a mind reader (or, a good guesser). In response to my comment, what exactly is your point that a MAS BPA and a FAR 13 BPA have nothing to do with each other or did you intend to start a new topic on the differences?

My point is straightforward -

“Option” means a unilateral right in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract, or may elect to extend the term of the contract.

One cannot exercise this “unilateral right” on a non-binding agreement such as a BPA since a BPA (including a BPA established under FAR 8 or FAR 13) is not a contract because it lacks consideration. Consequently, the unilateral right is unenforceable in any competent court of jurisdiction. Therefore, the FAR Council is demonstrably incompetent for writing a “deviation” to the FAR which conflicts with established case law, common sense and its own definition of “option” and “contract” (FAR 2).

[notice, the FAR Council did not prescribe any traditional option clauses but refers us to (e)(1) to document the file; what provisions or clauses would you put in the solicitation or the BPA?]

Metteec -

Executive orders do NOT have the force and effect of law. At any rate and for example, I would ignore Executive Order 13658 based on the same rationale set forth by ABC, Inc. in their comments to the proposed rule (footnotes omitted) -

The Proposed Rule Exceeds the Executive Branch’s Constitutional and Statutory Authority.

Federal minimum wages on government contracts in the construction industry have long been established by acts of Congress. The DBA, 40 U.S.C. § 3142 (B ), states: “The minimum wages shall be based on the wages the Secretary of Labor determines to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the civil subdivision of the State in which the work is to be performed, or in the District of Columbia if the work is to be performed there.” Pursuant to this statute, the Department has created an elaborate regulatory scheme for determining prevailing wage rates in the construction industry.

Congress also has established a regime for the calculation of minimum wages on non-construction service contracts covered by the SCA. That law states at 41 U.S. § 6703: “The contract and bid specification shall contain a provision specifying the minimum wage to be paid to each class of service employee engaged in the performance of the contract or any subcontract, as determined by the Secretary or the Secretary’s authorized representative, in accordance with prevailing rates in the locality, or, where a collective-bargaining agreement covers the service employees, in accordance with the rates provided for in the agreement, including prospective wage increases provided for in the agreement as a result of arm’s length negotiations.” Section 6704 of the SCA further incorporates by reference the minimum wage provision of the FLSA, 29 U.S.C. § 206, which specifies that the minimum wage currently shall be $7.25 per hour for every employee engaged in commerce.

By the plain language of these statutes, Congress has established as a matter of law the minimum wages that must be paid by federal contractors. The NPRM nevertheless asserts that the minimum wage requirements of the Executive Order are “separate and distinct legal obligations from the prevailing wage requirements of the SCA and the DBA.”2 This assertion confirms that the President and the Department are creating a new minimum wage requirement in derogation of Congressional intent. As a result, in a limited but significant number of instances under the DBA and SCA, wage rates that the Department has previously found to be the minimum wages “prevailing” in local jurisdictions according to the dictates of Congress will under the proposed Rule no longer be deemed to be the minimum wage.

Neither the President nor the Department has any authority to override acts of Congress by setting a new minimum wage that contractors must pay, in a manner that is plainly inconsistent with the statutes that already govern this issue. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson concurring) (“In instances where presidential action is incompatible with the express or implied will of Congress, the power of the President is at its minimum….”); Chamber of Commerce v. Reich, 74 F. 3d 1322 (D.C. Cir. 1996) (striking down executive order conflicting with provisions of the National Labor Relations Act).

The sole authority for the executive order or the proposed rule cited by either the President or the NPRM is the Federal Property and Administrative Services Act of 1949 (FPASA, or the Procurement Act), 40 U.S.C. §§ 101, 121(a), cited by the President at 79 Fed. Reg. 9851 and in the NPRM at 79 Fed. Reg. 34570. The FPASA authorizes the President to “prescribe policies and directives” that [he] considers necessary to carry out the statutory purposes of ensuring “economical and efficient” government procurement and administration of government property. In the 65-year history of the FPASA, no President has ever before attempted to use this law as authority to establish a minimum wage for government contractors, and certainly no President has ever done so in direct violation of acts of Congress. In any event, the Procurement Act’s authorization to achieve greater economy or efficiency cannot truthfully be said to authorize the President or the Department to increase the government’s costs, as will be the most likely result of increasing the minimum wages that government contractors must pay their employees.

The D.C. Circuit considered and rejected a similar claim of Presidential authority to impose new obligations on government contractors under the FPASA in Chamber of Commerce v. Reich, 74 F. 3d at 1333. The court observed that the authority vested in the President under the FPASA is limited:

The Procurement Act was designed to address broad concerns quite different from the more focused question of the [issue before the court]. The text of the Procurement Act and its legislative history indicate that Congress was troubled by the absence of central management that could coordinate the entire government's procurement activities in an efficient and economical manner. The legislative history is replete with references for the need to have an "efficient, businesslike system of property management." S.REP. No. 475, 81st Cong., 1st Sess. 1 (1949); see also H.R.REP. No. 670, 81st Cong. 1st Sess. 2 (1949).

As a result, the Reich court found that the FPASA provided no authority for the President to dictate to government contractors as to matters on which Congress has already spoken.

In the present circumstance, as in Reich, Congress has already made the judgment that the government will achieve its greatest economy and efficiency by requiring government contractors to pay only the minimum wages specified by the DBA, SCA and FLSA. Reasonable minds may differ as to whether Congress has set the minimum wage at the most economical or efficient levels for government contractors, but once Congress has made the political judgment necessary to set the minimum wage and has acted upon it in the form of legislation, the President and the Department are required by the Constitution to faithfully execute the laws so enacted by Congress.

Finally, whereas the Department has sometimes (though not always) declared that legal challenges to the President’s authority to issue an Executive Order are “beyond its purview,”7 such a response is inappropriate here. Section 4 of the Executive Order 13658 specifically instructs the Department to issue regulations implementing the Order only “to the extent permitted by law and consistent with the requirements of the Federal Property and Administrative Services Act” … “including providing exclusions from the requirements set forth in this order where appropriate.” Section 4 of the Order further instructs the Department to “incorporate existing definitions, procedures, remedies, and enforcement processes” under the FLSA, SCA and DBA. These instructions confer upon the Department all the discretion necessary to decline to enforce the Executive Order in a manner that is inconsistent with Congressional authority (i.e., by declining to set a new minimum wage for any employee covered by the DBA, SCA or FLSA that differs from the Congressionally mandated minimum wages under the foregoing statutes).

For each of these reasons, the NPRM should be withdrawn or substantially modified to avoid imposing any new minimum wage that is different from the minimum wages dictated by Congress.

Share this post


Link to post
Share on other sites

Metteec -

Executive orders do NOT have the force and effect of law.

That assertion is too broad to be valid. The Supreme Court has found that an executive order can have the force and effect of law if issued pursuant to a statute, a congressional delegation of authority, or pursuant to presidential authority in the Constitution, as in the example I gave above. Of course, you are entitled to disagree with the Court, as many do about this or that from time to time.

I'm not passing on the validity or enforceability of any specific executive order.

Share this post


Link to post
Share on other sites

Understood Vern.

I rarely look to or rely on the Supreme Court for binding precedents but it is clear to me at least, that under the Constitution as written, the President has no authority to make laws (force and effect, etc.,) under any circumstance.

Share this post


Link to post
Share on other sites

What do you mean by "laws"? What's a "law"? Here is a link to the Executive Order of July 8, 2014, "Regarding the Democratic Republic of the Congo," which prohibits certain business transactions associated with that country. Is that a "law"? Was the order beyond the president's authority?

Share this post


Link to post
Share on other sites

The preamble states -

...authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act

(50 U.S.C. 1601 et seq.), section 5 of the United Nations Participation Act (22 U.S.C. 287c) (UNPA), and section 301 of title 3, United States Code,

Short answer, I'll have to read EO 13413 to make sense of the amendments. There is no Constitutional authority cited, but maybe he thinks he is executing IEEPA or UNPA which I would have to read also. If the rationale for exercising the authority is similar to that reflected in the EO above in my comment, then again I would confidently conclude that the subject EO is beyond the President's authority.

I'll continue reading.

Share this post


Link to post
Share on other sites

I would argue that executive orders, at their inception, have the force and effect of law. I believe Vern's point was that executive orders only have force and effect of law when grounded with legal authority, with several examples where the courts have overturned executive orders. No one can challenge that there is a long history of courts overturning executive orders. Vern's point can be carried with any act of legislation (or rule-making through the Administrative Procedures Act). Even laws written by Congress, signed by the President, and codified through substantive regulations have been overturned by the Courts.

As Contracting Officers, we do not have the legal authority to invalidate an executive order. You have the right to challenge an executive order through the judicial system. Failure to adhere to an unchallenged executive order may not lead to hanging, but it is definitely insubordination and grounds for dismissal. We cannot treat executive orders as a legal Schrödinger's cat dependent upon the outcome of a court decision that may or may not ever happen.

P.S. Thanks for the legal citations.

Share this post


Link to post
Share on other sites

Considering the following, I'd be hard pressed to conclude that the President is engaged in lawmaking rather than executing the law which is within his constitutional powers/authority.

In the United States Code, the IEEPA is Title 50, §§1701-1707.[1] The IEEPA authorizes the president to declare the existence of an "unusual and extraordinary threat... to the national security, foreign policy, or economy of the United States" that originates "in whole or substantial part outside the United States."[2] It further authorizes the president, after such a declaration, to block transactions and freeze assets to deal with the threat.[3] In the event of an actual attack on the United States, the president can also confiscate property connected with a country, group, or person that aided in the attack.[4]

The IEEPA falls under the provisions of the National Emergencies Act (NEA), which means that an emergency declared under the act must be renewed annually to remain in effect, and can be terminated by Congressional resolution.

Share this post


Link to post
Share on other sites

I would argue that executive orders, at their inception, have the force and effect of law.

That assertion is too broad. You could argue it, but your argument would be based on ignorance, and you would be wrong. Presidents issue some executive orders with no intent that they have the force and effect of law. They are no more than policy documents or operating instructions to agencies.

Do some reading.

Share this post


Link to post
Share on other sites

Vern, I see your point; I browsed a few executive orders in the last year and I see some that have a disclaimer that they are not intended to have a legal effect.

Share this post


Link to post
Share on other sites

Leading question maybe, but in the case of Vern's sample EO, I think that the President should issue another EO under the IEEPA to block the transaction of persons from Ebola at risk countries from entering the U.S. as it is a matter of National Security or common sense. The failure to do so is a national security risk unless the outbreak has been planned and the fix is already in, sort of speak.

Share this post


Link to post
Share on other sites

At any rate and for example, I would ignore Executive Order 13658 based on the same rationale set forth by ABC, Inc. in their comments to the proposed rule

Your posts do not indicate (at least to me) whether you work for a contractor or the Government. If you work for the Government, do you mean that you would ignore the Executive Order by not including the clause required by the order? If you work for a contractor (or are yourself a contractor), do you mean that you would not pay the minimum wage required by the clause? What does ignore the Executive Order mean?

Share this post


Link to post
Share on other sites

Bob, this is remotely related to contracting and Vern's EO example, not politics, contrary to Don's myopic view of the Civil War or the procurement of a wife, inter alia -

OK, inadvertently, an Administrator provided the rationale why persons traveling from Ebola, at risk countries should not be banned from entering or traveling via airline transportation to the U.S. -

If we banned all flights from Ebola, at risk countries or connecting flights from Europe (as we have no direct routes), then the Ebola carriers would resort to infiltrating our southwest border which is not protected or even monitored to any exclusionary or competent degree. By allowing Ebola carriers to fly into this country, we can at least perform cursory inspections such as questions or temperature taking, none of which will protect you or the entire country from being infected.

Incompetence or planned?

I think this has been planned but how would you write the contract? (Non sequitor)

Share this post


Link to post
Share on other sites

Bob, this is remotely related to contracting and Vern's EO example, not politics, contrary to Don's myopic view of the Civil War or the procurement of a wife, inter alia -

OK, inadvertently, an Administrator provided the rationale why persons traveling from Ebola, at risk countries should not be banned from entering or traveling via airline transportation to the U.S. -

If we banned all flights from Ebola, at risk countries or connecting flights from Europe (as we have no direct routes), then the Ebola carriers would resort to infiltrating our southwest border which is not protected or even monitored to any exclusionary or competent degree. By allowing Ebola carriers to fly into this country, we can at least perform cursory inspections such as questions or temperature taking, none of which will protect you or the entire country from being infected.

Incompetence or planned?

I think this has been planned but how would you write the contract? (Non sequitor)

I feel like "chemtrails" should have somehow gotten into the story as well. :)http://en.wikipedia.org/wiki/Chemtrail_conspiracy_theory

Share this post


Link to post
Share on other sites

Roger that InNeedofWisdom:

You should think about things rather than "feel". Your Government is the "conspiracy" as Cicero wrote long ago -

"A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear. The traitor is the plague."

I surmise this doesn't mean anything to you so God bless and history will tell the tale better than I can.

Share this post


Link to post
Share on other sites

physiocrat:

If you want to discuss conspiracy theory, go to another discussion forum and do it there. There is no space for that nonsense here! This is a contracting forum!

Share this post


Link to post
Share on other sites

So, putting aside for a moment the discussion on Executive Orders,et.al., let's get back to Physiocrat's original posit and civ-1102's point regarding the distinction between "charge account" BPA's under FAR 13.303 and GSA's (unfortunate) adoption of the term Blanket Purchasing Agreement in the context of drop down agreements under the schedules program covered by FAR8.405-3. The defintions of the terms and the rules regarding their usage are in fact different. I, for one, am under the impression that the former are not contracts, while the latter are. What say you?

Share this post


Link to post
Share on other sites

On the minimum wage EO, I, for one, would want my agency to follow any FAR implementation that applies to it until such time as the Federal Court passes upon this specific EO. After that, i would want to see what DOJ OLC has to say about it (if anything), and what Civ. Div. has to say about appeals. That's what the courts and DOJ are for.

Share this post


Link to post
Share on other sites

So, putting aside for a moment the discussion on Executive Orders,et.al., let's get back to Physiocrat's original posit and civ-1102's point regarding the distinction between "charge account" BPA's under FAR 13.303 and GSA's (unfortunate) adoption of the term Blanket Purchasing Agreement in the context of drop down agreements under the schedules program covered by FAR8.405-3. The defintions of the terms and the rules regarding their usage are in fact different. I, for one, am under the impression that the former are not contracts, while the latter are. What say you?

I'm looking through 8.403 and the GSA webpage and I'm not noticing anything that suggests that a GSA BPA is a contract. In the "Sample BPA Format" that is posted on their website they state

(3) The Government estimates, but does not guarantee, that the volume of purchases through this agreement will be ________________.

and

(4) This BPA does not obligate any funds.

How can you have a binding contract without a minimum obligation/consideration?

Looking at the GSA FAQ on BPAs, the only difference they seem to point out is that Part 13 BPAs are subject to requirements at Part 13 and GSA BPAs are subject to the requirements of Part 8.....

1. What is the difference between "traditional" Blanket Purchase Agreements (BPAs) and BPAs established under the GSA Schedules Program in accordance with Federal Acquisition Regulation (FAR) 8.405-3?

Although the objective of both "traditional" BPAs and GSA Schedule BPAs (also known as Multiple Award Schedule (MAS) BPAs) is to fill anticipated repetitive needs for supplies and services, "traditional" BPAs are subject to the requirements of FAR Part 13 whereas, with the exception of FAR 13.303-2©, which states that "BPAs may be established with GSA Federal Supply Schedule contractors...," FAR Part 13 does not apply to GSA Schedule BPAs. FAR 8.405-3 states that ordering activities may establish BPAs under any Schedule contract to fill recurring needs.

I am curious because I'm working on a GSA BPA procurement at the moment. Perhaps I'm missing something but I am not seeing evidence to conclude that GSA BPAs are contracts.

Share this post


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

×