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Personal Initiative: Who Has Used It?


bob7947

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Last night, I was reading an opinion of the Court of Federal Claims (COFC) before I posted a key excerpt.  The opinion was CHE Consulting, Inc. v. U. S No. 15-1244C, March 2, 2016.  I meant to highlight the phrase below in my posted excerpt but I forgot. It is the

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proper inquiry [wa]s not whether the FAR authorizes the use of IDIQ contracts for a procurement of construction, but whether there [wa]s any statutory or regulatory provision that precludes such use.

The phrase in the COFC opinion was from an earlier decision of the Court of Appeals for the Federal Circuit (CAFC), Tyler Construction Group v. United States, 570 F.3d 1329 (Fed. Cir. 2009).

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Like the Court of Federal Claims, we conclude that the proper inquiry is not whether the FAR authorizes the use of IDIQ contracts for a procurement of construction, but whether there is any statutory or regulatory provision that precludes such use.

The CAFC went on to use the FAR itself to make its point.  Here is an excerpt from FAR 1.102

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(c) The Acquisition Team consists of all participants in Government acquisition including not only representatives of the technical, supply, and procurement communities but also the customers they serve, and the contractors who provide the products and services.

(d) The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.

Several of the senior members of Wifcon.com remember when that section was installed in the FAR.  It was years ago.  My questions to members of the acquisition team as defined in the FAR above

1.  Have you ever tried personal initiative but you were shot down by "higher ups" because the FAR did not authorize something?

2.  Have you ever used personal initiative and your idea was supported by "higher-ups?"

3.  In federal contracting, is it easier to be human or to be an automaton?

4.  If you answer automaton to #3, is it because of GAO protests, supervisors, etc?

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1. Yes, routinely.

2. Yes, occasionally. (Local "higher ups" routinely support)

3. Personally, it's easier to be human. It's easy to be me (curious human) and hard to be someone or something I'm not (automaton awaiting orders or set on a predetermined path).

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Guest Jason Lent

1. Yes.

2. Yes.

3. In one particular experience of mine, it was "easier" to be an automaton (so long as the automaton's "programming" includes "that's how we always have done it") since not thinking is usually easier than thinking. In one example, a colleague was facing extreme adversity from supervision in pitching design-bid-build as a way to fulfill requirements instead of design-build (the latter of which was failing to produce quality work at a reasonable price, regularly). We joked, "welcome to {organization}, where we take your latitude and replace it with longitude".

4. In the aforementioned experience, supervision drives the emphasis on the virtue of being mechanical, since being passionate about a personal initiative represents a risk to organizational credibility. Nobody wants to be the one standing around in the event that unforeseen consequences arise, and nobody wants to give the folks with contracting authority the opportunity to fall on their own sword.

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1. No, in my organization (Special Operations), we live in this world. Our Acquisition Executive preaches this stuff. If you are not coming up with new and innovative ways to get things to the warfighter faster, then you are not trying hard enough. We have many groups, not just one where innovation is not only welcomed but openly encouraged.

2. Yes, see above.

3. It is easier to be on automation, but in our organization, being human is encouraged. Obviously, there are numerous laws, statutes, regulations to comply with, and we do,  but it doesn't change our mindset to support the warfighter.

4. We go to great lengths to do auditable, repeatable, and defendable acquisitions, and do not fear protests. I never understand why companies do protest, but that is another thread. Before you think this place is contracting nirvana, we have our failures, but not from lacking of trying.  

 

  

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4 hours ago, bob7947 said:

 FAR 1.102

Several of the senior members of Wifcon.com remember when that section was installed in the FAR.  It was years ago.  My questions to members of the acquisition team as defined in the FAR above [ADDED: "(c) The Acquisition Team consists of all participants in Government acquisition including not only representatives of the technical, supply, and procurement communities but also the customers they serve, and the contractors who provide the products and services."]

 

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1.  Have you ever tried personal initiative but you were shot down by "higher ups" because the FAR did not authorize something?

1.  Yes, often,  when the FAR did not specifically address something or because the shooter was an automaton who literally read the FAR, without understanding the application or background and/or underlying limitations of the FAR coverage.  Primary Areas:

- Old and New FAR 15 (and some of the differences between them), competitively negotiated acquisition and negotiation procedures in general.

 - Design-Build Construction - general lack of understanding of the overall process and the fundamental differences between Design-Build and Design-Bid-Build delivery systems..

- The primary Culprits: 1102 series all the way to the HQ of the Organization and certain lawyers across the Organization who had little inclination to perform the necessary research. For D-B construction in particular, the entire organization.

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2.  Have you ever used personal initiative and your idea was supported by "higher-ups?"

2.  Yes, often - within my chain of command.   Also, often after first, second, third, fourth crashes - continuing to climb into yet another plane to take-off and fight, again.  Sometimes by my chain of command and myself or by my associates across the Organization and myself successfully outlasting the culprits.

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3.  In federal contracting, is it easier to be human or to be an automaton?

3.  Yes, apparently it is widespread in the government and I have witnessed it at the State and local levels, too. It's not limited to the Culprits identified above.

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4.  If you answer automaton to #3, is it because of GAO protests, supervisors, etc?

4.  Qualified Yes - It is often because the Culprits fear "POSSIBLE" protests, not because of actual protests or claims or other litigation concerning the ideas. 

4.  "Etc." - There are also other unrelated reasons - ignorance, laziness, "that's the way we've always done it" mentality, professional jealousy, "turf" protection/resentment,  etc.

4. No - With one short-period exception, not because of my supervisors.   With one other exception, a Cowardly Commander.  I waited him out and convinced the next one.

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I'm glad to hear CDS's answer -- I wish it were so everywhere!

I have been in a place like CDS -- but now, I'm in a place where a heavy, heavy review process stifles any innovation or even ingenuity, and any human excellence is discouraged.  When reviewers have no vested interest in the outcome, and no concern about whether the mission of the agency is achieved or not, well, that sometimes seems like my place. 

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1.  Have you ever tried personal initiative but you were shot down by "higher ups" because the FAR did not authorize something? No, not that I can remember - my contracting world is not that complicated that it falls outside the regulations/policies/EO... found elsewhere.

2.  Have you ever used personal initiative and your idea was supported by "higher-ups?"  See above

3.  In federal contracting, is it easier to be human or to be an automaton?  Have to agree with what's been said above (with the exception of CDS who apparently has found a utopian contracting office for which I am jealous).  In my experience, I see a huge push to homogenize the federal acquisition field - make all documents and contracts look alike.  That's best accomplished by automation.  Human thought wreaks havoc on automation. 

4.  If you answer automaton to #3, is it because of GAO protests, supervisors, etc?  To a degree, yes.  But it involves much more than that.

 

I have actually seen this FAR principle abused rather than properly used because the individual ignores the principle in its entirety and thinks that if the FAR doesn't prohibit it, it can be done,  but fails to take the additional step of researching whether the action violates other regulations, laws or policies.

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1.  Have you ever tried personal initiative but you were shot down by "higher ups" because the FAR did not authorize something?    Yes often, but primarily because they personally did not think it was the thing to do mainly because it was different from what they were familiar with.  Few were that astute to the content of the FAR and whether or not the FAR authorized it was a bridge too far to even discuss with uncommon exceptions.

 

2.  Have you ever used personal initiative and your idea was supported by "higher-ups?"  Yes, often, but too frequently in office wide matter, regardless of their tacit support, they tended to put on their Teflon coat by saying “Shinaku said…” which usually blew it and they became scarce.  But then again I have had many "go-ahead and do it'" on initiatives  on  onesey-twosey project levesl that only I was doing...that is if I felt I needed to ask in the first place.

 

3.  In federal contracting, is it easier to be human or to be an automaton?   For me, easier to be human, I get uncomfortable and self-conscious about automaton mode though it has its place and I can automaton with the best.

 

4.  If you answer automaton to #3, is it because of GAO protests, supervisors, etc?  N/A.

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Guest Jason Lent
On ‎3‎/‎3‎/‎2016 at 1:43 PM, ji20874 said:

I'm glad to hear CDS's answer -- I wish it were so everywhere!

I have been in a place like CDS -- but now, I'm in a place where a heavy, heavy review process stifles any innovation or even ingenuity, and any human excellence is discouraged.  When reviewers have no vested interest in the outcome, and no concern about whether the mission of the agency is achieved or not, well, that sometimes seems like my place. 

CDS's answer intrigued me, considering my experience with that organization.

In fact, the exact concern you listed - heavy review processes - were both the set-up and the punchline of a lot of memories there.

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1.  Yes

2.  Yes

3.  Depends on the Agency.  My agency is an active participant in "cookie-cutter" contracting, contracting-by-numbers (remember "paint-by-numbers?") -  i.e. mandatory templates, "this is the way the customer wants it done; "if it's not in the system, it isn't doable".

4.  Protests, supervisors, minimal experience of 1102s, lack of confidence in COs, moving of 1102s from one agency to another, not encouraging contracting officials to use their contracting acumen.

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