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bob7947

NDAA for FY 2018

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Bob,

Thank you for this analysis. You provide a very important service, one that I rely on.

H2H

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Vern:

I believe that may be the longest contracting NDAA yet.  It also seemed the most explanation by "conferees."  Even though there were many sections not adopted, the conferees had direction to give in those sections and I italicized it.  I also noticed that some sections that passed, specifically directed DoD to change the DFARS and not just stating regulation. There is a lot to think about in the NDAA sections.  That was my weekend.

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2 hours ago, bob7947 said:

I also noticed that some sections that passed, specifically directed DoD to change the DFARS and not just stating regulation.

Maybe Congress noticed that the DAR Council isn't implementing prior NDAA statutory directions with the alacrity that they may have expected.

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Imagine if Congress directed a change to the DFARS and the DFARS was changed to meet that requirement.  Future FAR Councils open a case to add the same change to the FAR because it also was applicable to civilian agencies.  The FAR is changed to add the DFARS rule.  Since the DFARS change is now in the FAR, the DARC tries to delete the duplicate section from the DFARS.  However, they realize that it is required in the DFARS by the NDAA of 2018.  What do they do?

There is an answer but should future Councils have to regulate in this manner?

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2 hours ago, bob7947 said:

 

There is an answer but should future Councils have to regulate in this manner?

Bob,

I suspect you are asking the wrong question.

A better question could be: "Should FAR and agency supplement rule-making be subject to the whims of lifetime bureaucrats who have allegiance to their immediate bosses rather than to the acquisition workforce?"

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H2H, maybe times have changed since I worked for DoD, but during my time, I served on three DAR committees.  Each of the "lifetime bureaucrats" on those committees was a working member of the acquisition workforce.  Thus, they would have to live and operate under each DFARS rule they passed.   Sometimes our discretion was limited by the statutes or FAR rules that needed to be implemented.  Also, our work needed to be reviewed and approved by political creatures at OMB who did not always agree with our results.

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 "Should FAR and agency supplement rule-making be subject to the whims of lifetime bureaucrats who have allegiance to their immediate bosses rather than to the acquisition workforce?"

We have to start with the NDAA Acts since that starts the process.  Should an ignorant committee staffer draft the Intent of Congress that causes actions--even when a bill's section is intentionally not adopted?  Should a bunch of ignorant politicians pass hundreds of legislative provsions, in a handful of years, that the FAR Councils must implement within a finite timeframe?  Should the Office of Management and Budget intentionally fail to issue regulations required by law?  Should the CAAC have to deviate from the FAR to implement a law because the Office of Management and Budget has a freeze on regulations that are required by law--even when that Office wants the law implemented?  

Vern has said this before - - we need to go back to the ASPR and FPR.  I now agree.  It is a waste of time and money having an intentionally "maimed-at-birth" OFPP together with FAR Councils hanging from hooks.  If anyone goes back and reads the first few Recommendations of the Commission on Government Procurement they will agree that we have a bigger regulatory mess now than ever before.  It is beyond fixing.  

If someone wants to get disgusted, go through the NDAA sections appearing at this site, create a table, and show how many NDAA sections change a prior NDAA's section.  Do it for the past 17 years--all the NDAAs that I have analyzed are on this site. 

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46 minutes ago, Retreadfed said:

H2H, maybe times have changed since I worked for DoD, but during my time, I served on three DAR committees.  Each of the "lifetime bureaucrats" on those committees was a working member of the acquisition workforce.  Thus, they would have to live and operate under each DFARS rule they passed.   Sometimes our discretion was limited by the statutes or FAR rules that needed to be implemented.  Also, our work needed to be reviewed and approved by political creatures at OMB who did not always agree with our results.

I meant no offense. The process seems opaque to me. The responses to public comments received seem to be perfunctory if not misleading. The priorities seem to be set by others and not be the Committee(s). The rule-making seems to be driven by an agenda that does not have the best interest of the acquisition workforce at its center.

Further, what you describe sounds like a process ripe for streamlining.

Again, no offense meant. Perhaps things have changed since you worked there.

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37 minutes ago, here_2_help said:

Further, what you describe sounds like a process ripe for streamlining.

There are multiple people sitting on FAR and DFARS revision teams who are functionally illiterate, and are not equipped to make complex decisions that affect thousands of people and billions of dollars. It's absurd.

PepeTheFrog thinks that some of this subset are dumped into this extremely important role only because their larger office doesn't think it's important and wants to save their best brains for operational contracting work. None of this subset would have a high paying federal job, let alone a seat on these councils or teams, if America re-instituted the civil service exam.

Hundreds of years ago, the Chinese introduced a revolutionary idea for civil service competency, meritocracy, and inclusiveness: use the "imperial exam" (the first civil service exam) to screen and select future Mandarins. The poorest rice farmer, with no political connections, from a backwater province, could eventually advise the highest levels of leadership-- if he was gifted and could prove his intelligence, knowledge, and skills in an objective test. A major step forward for civilization and government.

What does America do? Gets rid of this test, ironically, in the spirit of "inclusiveness." Where is Orwell?

https://en.wikipedia.org/wiki/Imperial_examination

Edited to add Chinese history.

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1 hour ago, bob7947 said:

It is beyond fixing.   

And yet we keep trying, Commission after Commission. Study after study.

Don Quixote ain't got nothin' on the acquisition reformers.

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As of this morning, the NDAA bill sections that you looked at the most in descending order:

  1. Increased simplified acquisition threshold (sec. 805)
  2. Requirements related to the micro-purchase threshold (sec. 806)
  3. Use of lowest price technically acceptable source selection process (sec. 822)
  4. Modifications to cost or pricing data and reporting requirements (sec. 811)
  5. Enhanced post-award debriefing rights (sec. 818)
  6. Applicability of cost and pricing data certification requirements (sec. 812)
  7. Performance of incurred cost audits (sec. 803)
  8. Statements of purpose for Department of Defense acquisition (sec. 801)
  9. Repeal of certain auditing requirements (sec. 804)
  10. Expansion of definition of competitive procedures to include competitive selection for award of science and technology proposals (sec. 221)

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On 11/19/2017 at 7:10 PM, bob7947 said:

It awaits signature at the White House to become law.  However, it will probably be signed.

According to congress.gov, the bill has not yet been sent to the president.

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It takes a few days after the bill passes Congress, gets prettied up, and is sent to the White House.  After that, it sits in the White House for a political signing opportunity to develop.  In Congress it's:  we passed it before a holiday, let the staff clean it up and send it down the street,  we have sucking-up to do with the voters and we have to raise funds, from just about anyone, to get reelected.  In the White House it's:  send invitations for the signing to members that won't hurt us, write a signing speech, find the most politically opportune time to sign the thing, make sure the pens work, tell the signer what he's signing, make sure everyone's teeth are clean, etc.  Washington works at its own pace.

While the above is going on it's:  find someone that we don't like, and who can't hurt us politically, to blame in case anything goes wrong.  Same thing every year.  Washington works at its own pace.

Years ago, the Federal Register rarely came out on time near the holidays.  It's not hard to guess why.  I complained and complained and complained and complained and now I take partial credit for straightening that out.  It's almost flawless at this time.  Of course now, for political reasons, it doesn't contain much in our field.  That will end some day.  Washington works at its own pace.

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All of my prior post applies but here is some more.  Congress.gov has, as A. Lincoln would call it, "the slows."  After it went through the last "upgrade" it got slower to post new items.  I've noted on this site's legislation page that it may take a week for Congress.gov to update.  To make up for its version of "the slows," I try to find press releases from those members or senators who introduce bills.  The last update for H. R. 2810 on Congress.gov is November 16, 2017 for the Senate agreeing to the conference report.  That is 12 days ago.  Of course we had a holiday and Congress was away.  Who knows what the staffers were doing during that period.

At the White House, it lists no pending legislation and the last signed legislation (public laws) in September 2017.  However, Congress.gov, which has the slows itself, shows that there have been 20 Public Laws signed after September 2017.  Frankly, the White House web site is somewhat south of pathetic.

The best bet to learn of the signing of H. R. 2810 may be on twitter.  I use twitter myself.  Washington works at its own pace and we have to roll with the times.

(In Washington, there is no precision.  We, who are dependent on its institutions, develop workarounds.)

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So when would a contractor or contracting officer be able to recognize the increased micro-purchase and simplified acquisition thresholds?    Does one have to await an update to the FAR which would not occur until October?   I'm aware that the DoD issues a class deviation (2017-O0006) increasing the MPT for their procurements to $5k ($10k for basic research and STRL).

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Z-Mil:

That sort of question has been asked for many years: What should a CO do when a regulation is based on a statute and the statute changes? Should the CO act in accordance with the statute or continue to act in accordance with the regulation, regardless of the statute, until the regulation is changed?

I think that within the bureaucracy most senior officials would say that the CO must continue to comply with the regulation until issuance of a deviation or publication of a new rule in the Federal Register, because letting COs use their personal judgment would likely result in inconsistencies. That makes senses when the statute requires development of implementation procedures and instructions. But when a regulation just announces the law without imposing special implementation procedures, as is the case of the SAT and the micropurchase threshold, which are merely definitions, it seems silly to continue to apply the old thresholds pending issuance of a "deviation" or an interim or final change to the FAR.

My own inclination in this case would be to act in accordance with the statute as soon as the statute takes effect, regardless of the regulation, but management would probably shut me down.

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I suspect a deviation will be approved Federal-wide to implement the new thresholds unless they plan on issuing a FAC shortly, which I doubt.  I would not apply the new thresholds until the FAR was updated or a deviation approved.  That is why DoD had to get a deviation approved to implement the revised micropurchase threshold that only applied to it in the 2017 NDAA.

Here is a link to a Wifcon discussion from last year regarding whether to follow a new statute or the FAR.

 

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