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I've added the draft 19th annual Wifcon.com analysis of the National Defense Authorization Act to the Home Page.  It is draft because I haven't proofed all the textual mistakes and haven't finished the LPNAs, etc.  Also, I haven't checked other parts of the law to see if there are other contracting perfections in the other titles of this wonderful piece of legislation.  

It's about 80 congressial perfections to defense contracting.  Some perfections have perfected other annual perfections, etc.  There is something for everone to love in it, I'm sure.  Look at the bright side, there are over 30 more near-perfections that didn't make the cut.  See the unfinished LPNAs.

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11 hours ago, bob7947 said:

I've added the draft 19th annual Wifcon.com analysis of the National Defense Authorization Act to the Home Page.  It is draft because I haven't proofed all the textual mistakes and haven't finished the LPNAs, etc.  Also, I haven't checked other parts of the law to see if there are other contracting perfections in the other titles of this wonderful piece of legislation.  

It's about 80 congressional perfections to defense contracting.  Some perfections have perfected other annual perfections, etc.  There is something for everyone to love in it, I'm sure.  Look at the bright side, there are over 30 more near-perfections that didn't make the cut.  See the unfinished LPNAs.

Thanks, as usual, Bob! 

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I thought I remembered one section requiring intellectual property--of some sort--as an evaluation factor.  I did a quick scan of the sections and the LPNAs and could not find it.  Maybe I was having a nightmare.  If you find something like that, please point it out.  That seemed an especially bad idea to me.

If I find it in the next few days when I do a 100% review, I'll point it out.  I do have the wrong title of the Law on one of the pages.

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Interesting that Comp Gen was directed to study how the USACE administers and enforces the DBA and related labor provisions in their construction contracts (re: listed non-enacted provision). Member(s) of Congress must have gotten some complaints by the labor unions on a non-union job(s).

 Strange why a member of Congress would have introduced legislation to require such a study when probably all they have to do is get the GAO to perform the study in response to a Congressional complaint. And the HQUSACE is normally very responsive to any Congressional complaint. There are HQUSACE wide policies and procedures in place to formally respond to and resolve Congressionally initiated complaints - including going through HQ to the Congress. 

Every one of the items identified in the directive to GAO was, in my experience, routinely performed and handled in the Stateside Districts and Divisions I worked in.

Don’t know if every stateside Division, District and Office is currently complying with USACE contract admin labor policy.

I often wonder whether NAVFAC, USAF or any other government agency performs those functions on their construction contracts.

...especially those agencies and contracting offices that primarily contract for services, where the DOL is primarily responsible for enforcement issues. My observation through this Forum over the years is that service contract administration is way more hands off than construction contract administration. If there are a few construction contracts sprinkled in, do they perform the contract admin and labor checks, payroll reviews,  investigate complaints of non-payment or underpayment by the labor force, etc.? 

These days, it is factual that many more USACE KO’s and higher level Contracting Officials, such as in the PARC offices, have come from non-construction backgrounds. And the 1102’s (as well as those in the technical career fields) are much more fluid in assignments, turnovers, switching agencies, moves back and forth between private and government employment, etc.

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5 hours ago, bob7947 said:

Joel:

Do you know the section?

It is Sec 899m. See the list of non-adopted “perfections”. 

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That is one of the legislative provisions not adopted (LPNAs).  I noticed there was a lot of verbage about a report.  However, it is not associated with a part of the law.  The LPNA also requires GAO to report within 6 months.  It takes GAO longer than 6 months to get started.  There are other late sections of the law that request GAO to report on labor laws.

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10 hours ago, bob7947 said:

That is one of the legislative provisions not adopted (LPNAs).  I noticed there was a lot of verbage about a report.  However, it is not associated with a part of the law.  The LPNA also requires GAO to report within 6 months.  It takes GAO longer than 6 months to get started.  There are other late sections of the law that request GAO to report on labor laws.

The directed study and report were in lieu of the legislative prosion not adopted.

  “The conferees direct the Comptroller General of the United States to conduct a study on the contracting practices of USACE, with a specific focus on how USACE complies with and enforces the requirement to pay prevailing wages on federally financed construction jobs, as required by subchapter IV of chapter 31 of title 40, United States Code (commonly referred to as the Davis-Bacon Act). The study should consider the 
following:

(1) Any programs or protocols USACE has in place for the purpose of carrying out its Davis-Bacon Act enforcement obligations as set forth in the Federal Acquisition Regulation.

(2) Any programs or protocols USACE has in place for the purpose of identifying and addressing independent contractor misclassification on projects subject to the Davis-Bacon Act.

(3) The frequency with which USACE conducts site visits on each covered project to monitor Davis-Bacon Act compliance.

(4) The frequency with which USACE monitors certified payroll reports submitted by contractors and subcontractors on each covered project.

(5) Whether USACE accepts and investigates complaints of Davis-Bacon Act violations submitted by third parties, such as contractors and workers' rights organizations.

(6) Whether USACE maintains a database listing all contractors and subcontractors who have, in one way or another, violated the Davis-Bacon Act and whether USACE consults this database as part of its contract award process.

(7) The frequency, over the last five years, with which USACE penalized, disqualified, terminated, or moved for debarment of a contractor for Davis-Bacon violations.

(8) How USACE verifies that the contractors it hires for its projects are properly licensed.? 

The conferees further direct the Comptroller General to submit a report that summarizes the results of the study, with recommendations for legislative or regulatory action that would improve the efforts of enforcing the requirement to pay prevailing wages on federally financed construction jobs, to the following committees not later than 1 year after the date of enactment of this Act to: the Committee on Education and Labor; the Committee on Armed Services; and the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Health, Education, Labor, and Pensions; the Committee on Armed Services; and the Committee on Commerce, Science, and Transportation of the 
Senate.”

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Joel:

You added:

The directed study and report were in lieu of the legislative prosion not adopted.

GAO hates to see mandates that are required by law because they take priority over everything else.  The more work required by law, the fewer people can be assigned to anything else.  There aren't enough GAO'ers to go around for all requests that arrive. 

GAO published an item called GAO’s Congressional Protocols.  In part, that is published for Congress to explain to individual members why their request will never get done.  On p. 8 of the pamphlet, GAO explains its priorities.  I quote it below.

Quote

1. Congressional mandates.

2. Senior congressional leader and committee leader requests.

3. Individual Member requests.

Congressional mandates include requirements directed by statutes, congressional resolutions, conference reports, and committee reports. Senior congressional leaders include the President Pro Tempore, Senate Majority Leader, Senate Minority Leader, Speaker of the House, House Majority Leader, and House Minority Leader. Committee leaders include the Chair and Ranking Member of a committee or subcommittee with jurisdiction over a program or activity.

An NDAA Conference report has precedence over senior congressional leaders.  Conference reports, as in the NDAA of 2020, may include mandates beyond what is included in the actual law.  They theoretically take priority over something requested by the senior congressional leaders.  Take a look at who they are.  Let's go back to the 1990s for a moment.  In that decade GAO's staff was cut by one-third because one political party took over the Congress from another political party and the winning political party was angry beause it thought that the previous controlling party was getting too much attention from GAO.  The current Comptroller General remembers that because he was there.  In reality, GAO walks a political tightrope.

OK, back to your issue.  I don't know how GAO would deal theoretically with a request that appears in a section of a conference report that explains a section of a bill that was defeated in conference.  However, to find out, I would send you before the Chairman and Vice Chairman of a powerful committee to explain why you are doing a request that never made it's way out of conference instead of their request which they both believe is of the utmost importance.  After you wash their spit and the heat of their breath off your face, you would probably have an answer.

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Bob thanks for this, once again. It's a very valuable resource that I will go to again and again

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1 hour ago, bob7947 said:

Congressional mandates include requirements directed by statutes, congressional resolutions, conference reports,

Bob, why does GAO consider directions from committee reports to be  mandates to GAO while it considers such directions to be non-binding on agencies?

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Thanks again, Bob. Great insight. 

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Retread:

That pamphlet deals only with GAO's relationship with its meal-provider, Congress.  It was first written in 2000 after GAO received its 1/3 cut in personnel.  During that time, GAO was being jerked to attention by Congress.  That pamphlet is one clear example of GAO trying to make amends with Congress and setting down on paper how it handled requests.  What  is in there deals only with Congress and GAO, no-one else.

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On 1/14/2020 at 8:56 PM, bob7947 said:

I thought I remembered one section requiring intellectual property--of some sort--as an evaluation factor.  I did a quick scan of the sections and the LPNAs and could not find it.  Maybe I was having a nightmare.  If you find something like that, please point it out.  That seemed an especially bad idea to me.

If I find it in the next few days when I do a 100% review, I'll point it out.  I do have the wrong title of the Law on one of the pages.

Bob,  I didn’t look through it but I remember seeing an article a couple weeks ago on intellectual property.  Apparently DoD must conduct a pilot to evaluate effective means of dealing with IP.  It covers issues like Agency program specific tech data deliverables and whether that’s cost effective versus commercial practices and licenses.  

 

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On 1/24/2020 at 8:20 AM, Ibn Battuta said:

I don't have a count, but I spoke with Dave Drabkin last month, the panel chair, and he said that not much 809 stuff got into this NDAA (FY 2020). Maybe in the next NDAA. 

That's my take, as well. I didn't see anything I could tie directly to the Section 809 Panel's recommendations. I was hoping I'd missing something.

I heard a senior SES type from DOD tell an industry group that the problem with the Panel's recommendations was that there were just too many of them. It was too hard to review and prioritize them. The phrase "boil the ocean" was used. Too bad, because I rather hoped some of them would have been acted upon.

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One of the conference report sections mentioned the 809 panel and then shrugged it off.  It is a long blurb that I looked for last night.  I didn't find it because I was tired of looking at all the sections.

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1 hour ago, Ibn Battuta said:

From Senate Report No. 116-48, p. 223:

The comments remind me of Carl Spackler's story about his gift from the Dalai Lama. "So I got that goin' for me, which is nice."

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