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Avast ye, I'm submittin' an Acquisition Plan for a cost-type contract well over $50M for approval.  The 2017 NDAA Section 829 requirement "Use of Fixed-Price Contracts" requires Cost-Type contracts over $50M to be approved at different thresholds than previous years.  It calls for this change to go into affect on 1 OCT 2018.  Its currently still being vetted for approval in DFARS case number 2017-D024.  While awaitin' a response from Legal, me question to ye is whether I should be beholden to approval from the DAR council for inclusion in the DFARS or if the failure of the Gov. to include the NDAA change by the specified date in Section 829 does not excuse me from adhering to the NDAA requirement.

 

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PepeTheFrog's opinion is that you should follow the FAR/DFARS in this case and as a general rule when similar situations arise.

Contracting officers can barely read and follow the FAR, so it's unreasonable to expect them to interpret and implement legislation, especially when there exists a system to implement the legislation into standard procurement regulations.

Even more, in this case, the law only directs DOD to change the regulations: "the Defense Federal Acquisition Regulation Supplement shall be revised." 

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I agree with ji and Pepe except if your agency decides by deviation to implement the NDAA now you in turn would have to follow the deviation.   My reasoning the statute as noted directs the DoD to change the regulations.   DoD has not changed the regulations and a CO and even the authorities noted in the NDAA language do not have the authority to change the DFARS unless they follow the deviation route.  You may want to ask your question in the agency beyond legal counsel.

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Pepe and Carl:

Does the follwoing section of the law have meaning?

Quote

(b) Approval Requirement For Certain Cost-Type Contracts.—

(1) IN GENERAL.—A contracting officer of the Department of Defense may not enter into a cost-type contract described in paragraph (2) unless the contract is approved by the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition, Technology, and Logistics (as applicable).
(2) COVERED CONTRACTS.—A contract described in this paragraph is—

(A) a cost-type contract in excess of $50,000,000, in the case of a contract entered into on or after October 1, 2018, and before October 1, 2019; and
(B) a cost-type contract in excess of $25,000,000, in the case of a contract entered into on or after October 1, 2019.  (emphasis added)

 

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What else would sheep do?

Quote

Although legal were the ones originally raising this concern, they have since deferred to giving the DFARS precedence.  The Policy Team also agreed.  Common sense has won the day!

 

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32 minutes ago, bob7947 said:

What else would sheep do?

I don't think it has anything to do with being sheep (I am assuming sheep is meant to be an unflattering descriptor) -- staying with the DFARS for the time being is a prudent and entirely professional decision for a contracting officer.  If the Congress or the President are unhappy with DoD's process or compliance with the statute, they may raise that matter with the Department.

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4 hours ago, bob7947 said:

Pepe and Carl:

Does the follwoing section of the law have meaning?

Yes, it directs one agency in the Executive Branch, the Department of Defense, to change its procurement regulations and business practices. If there was no Defense Acquisition Regulations System or assortment of DFARS revision teams or Defense Pricing and Contracting or DFARS, then it would make sense for Congress to pass laws that directly, immediately control the behavior of DOD contracting officers. But that's not how the system has worked.

Congress delegated quite a bit of their legislative powers to the Executive Agencies in the form of rule-making, regulation, adjudication, and the rest of the Administrative Procedures Act smoke and mirrors. Similarly, Congress delegated quite a bit of their legislative powers to the Executive Agencies through the Office of Federal Procurement Policy Act. 

PepeTheFrog is pleased to see that bob7947 wants to eradicate the unconstitutional administrative state, neuter the oppressive federal regulatory agencies, and bring America back to the days of legislative accountability instead of the rise of the Deep State. For now, we will have to deal with unelected, tyrannical, elitist, and meddlesome Deep State bureaucrats. But don't worry, we are draining the swamp, slowly but surely.

In the meantime, contracting officers will wait for a deviation or for the FAR or DFARS to be revised.

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I don't want to speak for Bob, but I see two separate requirements in the statute.  Subsection (a) requires DoD to change the DFARS to establish a preference for fixed price contracts.  Subsection (b) imposes an independent obligation on contracting officers in regard to cost reimbursement contracts.  (b) does not mandate DoD to do anything but is specifically directed at contracting officers.

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Frog:

Quote

we are draining the swamp

There goes your habitat!

Here are my thoughts.

  1. As I have written, there are too many changes in Defense contracting law every year,
  2. Look at this page and read the Early Engagement Opportunity sections,
  3. The regulators are falling behind under the legislative onslaught,
  4. In these situations, to provide direction to the Defense contacting personnel, the USD's office must provide timely deviations to regulation.  It appears, this one slipped through the cracks.  You can search here to see if it was done and I missed it.

In Class Deviation 2018-00017 the USD's office wrote:

Quote

This class deviation remains in effect until it is incorporated in the DFARS

That, in the least, is what should have been done here.  Instead, the pirate encountered the problem.  As a result, the USD is violating the law, the pirate's advisors are violating the law, and the pirate is violating the law.  At least the pirate made sure his/her flak jacket is riding low.

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27 minutes ago, bob7947 said:

As a result, the USD is violating the law, the pirate's advisors are violating the law, and the pirate is violating the law. 

I might almost be convinced in a hard re-read of the language but are we (yep including myself now) sure?   

A full read says the CO can't do it "unless the contract is approved by the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition, Technology, and Logistics (as applicable)."   The OP has stated that the "DASN(AP)" said to go for it.   The DASN(AP) by my read is most likely the service acquisition executive of the military department (Navy?).  So if true in a full read the OP hasn't violated a law

Noting this what the DFAR will do is take the NDAA language and spider-web it into a most likely confusing and elongated approval process to do the contract.   The OP gets props from me in going to the right person, getting the ok, and moving on. 

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27 minutes ago, C Culham said:

The DASN(AP) by my read is most likely the service acquisition executive of the military department (Navy?).

Yarr, Deputy Assistant Secretary of the Navy (Acquisition and Procurement)

"The DASN AP serves as the Navy's Competition Advocate General, and advises the ASN on Federal Acquisition Regulation (FAR), Defense Acquisition Regulations System (DFARS) and Navy-specific acquisition regulations and policies."

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I also would not go so far as to say the contracting officer is breaking the law — maybe the statement was only intended as hyperbole?

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5 hours ago, Contracting Pirate said:

Also received confirmation from DASN(AP), stick to the DFARS.

What does this mean?  The DFARS does not currently address what is in the NDAA.  Does this mean that a Navy contracting officer can now award a cost reimbursement contract in excess of $50M without the approval called for by the NDAA?  If such approval is not obtained, is the contract subject to being challenged as invalid because the contracting officer did not have the statutory authority to award the contract?

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19 minutes ago, Retreadfed said:

What does this mean?  The DFARS does not currently address what is in the NDAA.  Does this mean that a Navy contracting officer can now award a cost reimbursement contract in excess of $50M without the approval called for by the NDAA?  If such approval is not obtained, is the contract subject to being challenged as invalid because the contracting officer did not have the statutory authority to award the contract?

Correct in yer first assumption.  Not sure about the rest of it.  I'm just a lowly scallywag followin' orders.

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3 hours ago, bob7947 said:
  • As I have written, there are too many changes in Defense contracting law every year,
  • Look at this page and read the Early Engagement Opportunity sections,
  • The regulators are falling behind under the legislative onslaught,
  • In these situations, to provide direction to the Defense contacting personnel, the USD's office must provide timely deviations to regulation.  It appears, this one slipped through the cracks.  You can search here to see if it was done and I missed it.

PepeTheFrogs agrees on all counts. PepeTheFrog's solution is different from empowering each and every brainlet contracting officer to implement the NDAA each year. Instead, stick with the current system, but administer severe beatings until morale and performance improves.

Congress should publicly horse-whip USD(A&S) and the Director of DPC for not being able to pencil-whip a deviation in time. It's bad enough that the FAR and DFARS cases take so long, but is it really that hard to pencil-whip a DOD Class Deviation memo? (As bob7947 pointed out, the deviations remain in effect until the actual DFARS case is finalized, so it can act as immediate relief.)

 

Can anyone tell PepeTheFrog why DPC cannot roll out a handful of DOD Class Deviation memos within one month of the day the NDAA is signed by President Trump? This seems inexcusable. What is the higher priority at DPC? How hard is it to stroll around the Pentagon and staff a memo up the chain?

Step 1. GS-13 procurement analyst drafts the memo.

2. Review by Director of DARS.

3. Review by the staff of the Director of DPC.

4. Review by the staff of USD(A&S).

5. Signature.

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I agree with the frog.  We shouldn't blame individual contracting officers for not implementing the NDAA.

By the way, I think all the procurement analysts up there are GS-15.

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Pirate:

You wrote:

Quote

Although legal were the ones originally raising this concern, they have since deferred to giving the DFARS precedence.  The Policy Team also agreed.  Common sense has won the day!

and

Quote

Also received confirmation from DASN(AP), stick to the DFARS.

Have any of them given you an electronic or paper document directing you to ignore the law and stick to the outdated DFARS?

--------------------------------------------

PS:  I think the provision in the law is stupid.

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Also consider that DoD, at least, has usually been involved during congressional drafting of acquisition related legislation that will affect DoD.  I doubt that anything of significance is much of a surprise by the time it gets to the President.

I know that the Congressional committees generally coordinate or at least ask for input and reaction from the USACE on military and civil works engineering and construction related matters, including acquisition methods , policy and procedures.

However, not all legislation can be implemented by simply issuing Class Deviations. 

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