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I'm just sharing a professional opinion.  So, in such a case, you are thinking the board or court will indicate the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.?

If you're trying to piss on me because my ability or interest in quoting case law is less than yours, go ahead.  But my thought is an honest one, and a credible one -- the board or court likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

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18 minutes ago, ji20874 said:

I'm just sharing a professional opinion.  So, in such a case, you are thinking the board or court will indicate the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.?

I am not thinking anything except that your assertion that a board or court is "likely" to decide in a certain way must be based on something. I asked what. If you didn't mean what you said, then say so. If you meant it, then what's the point in posting here if you don't want to explain yourself and discuss the matter. This is a FORUM, "A place , meeting , or medium where ideas and views on a particular issue can be exchanged." The Chambers Dictionary, 13th ed.

I have no idea how a board or court would decide in such a case, because I have not RESEARCHED the question.

I don't think your ability to research cases is less than mine. You're probably smarter than me. I'm not all that smart. I just work hard to make up. I think your willingness to do the work is less.

I don't categorize thoughts as honest or dishonest. I categorize them as sound or unsound. I'd rather have a sound thought from a liar than an unsound thought from a saint.

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I meant what I said.  I do not think anyone can reasonably assert that a contracting officer's faithfully negotiating a bilateral modification to include the clause we are talking about can be compared with other situations where an employee should have disobeyed an unlawful order.  I do not need to do research to justify holding or sharing such an opinion.  Thus, I am fine with saying the board or court likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.  The contrary of my opinion, for which you seem to be arguing, is absurd -- and it is wholly proper to treat it as absurd. 

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2 hours ago, Vern Edwards said:

Ethics in contracting is an important matter, but it is one in which most acquisition personnel receive only superficial education and training, and that training is mainly practical, not philosophical. Few of us have studied ethics, and most of us have not read any formal treatises on ethics.

This reminds me of when I used to teach contracting newbies at DAU. As they learned more about the FAR/DFARS, sometimes the more thoughtful students would come to the realization that their organizations didn't always follow the rules. They wouldn't know what to do with that information, because they had assumed that people knew what they were doing where they worked. We ended up adding the following to the course material:

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24.  What do I do if I am a contract specialist and my contracting officer is not complying with the regulations?

            It’s quite common for contract specialists to discover, by training or independent research, that acquisitions they are working on may not be fully compliant with the regulations.  Given the sheer volume of the applicable regulations and how often they are changed, it is understandable that contracting officers fall out of compliance due to a lack of knowledge.  If this is the case, it is your duty as a contract specialist to bring this to the attention of your contracting officer.  This will give the contracting officer the opportunity to correct the noncompliance. 

            A more difficult situation occurs when the contracting officer takes no action to correct the noncompliance or you find that the noncompliance is by design.  This presents an ethical dilemma.  Is it ethical to process acquisitions that you know are noncompliant with the regulations as long as you are not signing anything?  While some may find comfort in believing the answer to this question is “yes”, being a party to the evasion of legal regulations is contrary to the Standards of Conduct for the Executive Branch.[1]  In fact, the Standards of Conduct state that “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

            You primarily have two options for reporting intentional violations of the regulations.  The first is reporting the noncompliance up the contracting officer’s chain of command.  If the contracting officer is abusing the authority given to him/her, then those who granted that authority should be informed so that the appropriate remedial action can be taken.  The second option is to report the noncompliance to the DoD Office of the Inspector General (DoD IG).  The DoD IG has a “Defense Hotline” to report fraud, waste, abuse, or mismanagement regarding programs and personnel under the purview of the DoD.  No matter which option you choose to report a violation, you will be protected under Whistleblower statutes and you have the option to remain anonymous.  If you choose to remain anonymous, then you should provide enough information in your complaint so that an investigation, if necessary, can be effectively conducted.

 

[1] See http://www.oge.gov/Laws-and-Regulations/Employee-Standards-of-Conduct/Employee-Standards-of-Conduct/

 

Admittedly, this hardly scratches the surface of what training acquisition professionals need. Most training is of the "don't take bribes" variety.

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6 minutes ago, ji20874 said:

I meant what I said. 

So did Ptolemy when he said the Sun orbits the Earth.

6 minutes ago, ji20874 said:

The contrary of my opinion, for which you seem to be arguing, is absurd -- and it is wholly proper to treat it as absurd. 

Don't be a fool, or an ass. I didn't make any such assertion or "seem" to be. I have no idea what a court or board would decide, and I'm not inclined to hazard a fool's prediction. I would do some homework before making any such assertion, and then state my grounds.

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1 hour ago, ji20874 said:

If boards or courts make the clause improper or unenforceable, they will likely say the President or the Executive Branch or the agency overstepped.  They likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

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I'm just sharing a professional opinion.

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I do not need to do research to justify holding or sharing such an opinion.

Dunning-Kruger Effect

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On 11/18/2021 at 8:09 AM, ji20874 said:

 I am not seeing that contracting officers, as employees, need to be deciding the legality of the E.O. as a prerequisite to following instructions to implement the E.O.

The President issues an XO that states "In order to increase wealth among socially and economically disadvantaged businesses, all contracts issued after the date of this XO shall be awarded to such businesses as defined in regulations issued by the SBA."  Do you salute smartly and move out or stand fast?

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Here are some fun facts.

In 1984, FAR Subchapter D, Socio-economic programs, Parts 19 - 25, took up 75 pages in the official CFR booklet.

In 2020, FAR Subchapter D, Parts 19 - 26, took up 219 pages. It has grown even more in the last year.

The clauses that implement the socio-economic programs are generally the most convoluted and difficult to interpret in FAR. Each program has a special constituency and was enacted as a sop to them. They complain to Congress when COs don't aggressively enforce the clauses, and the GAO and IGs issue reports about inadequate enforcement. Then Congress enacts more laws.

Many of the clauses are based on executive orders and regulations promulgated by agencies such as the Department of Labor, the Small Business Administration, and the Environmental Protection Agency, which means that implementation of E.O.s and statutes tends to take a long time, going through the publication and comment process twice.

COs must be familiar with both the FAR coverage and the regulations published by the program agencies.

Congress does not fund additional contract administration personnel, and agencies don't provide enough training about all the various programs. 

The president has recently issued an E.O. on climate change that the FAR councils must implement, and they have asked for public input before drafting a proposed rule. FAR Case 2021-016.

And I'll bet you thought that acquisition is about getting the right supplies and services, of the right quality, in the right quantity, to the right place, at the right time, for a fair and reasonable price.

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20 hours ago, Fara Fasat said:

I think you will find that statement in every proposed rule. It's probably on a macro. 😄

I think the "economy and efficiency" reference relates to the fact that the FAR and DFARS deviations are intended to implement an Executive Order, and the president's authority to "prescribe policies and directives" (40 U.S.C. 121(a)) under the Federal Property and Administrative Services Act is grounded on that Act's goal of "to provide the Federal Government with an economical and efficient system."  40 U.S.C. 101.  See generally, Congressional Research Service, Presidential Authority to Impose Requirements on Federal Contractors, June 14, 2011 (R41866).

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20 hours ago, Vern Edwards said:

The clauses that implement the socio-economic programs are generally the most convoluted and difficult to interpret in FAR

Vern, don't forget the VA's regs concerning contracting with VOSB's and SDVOSB's and the interaction between those regs and the SBA concerning eligibility to participate in the program.

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21 hours ago, Jacques said:

I think the "economy and efficiency" reference relates to the fact that the FAR and DFARS deviations are intended to implement an Executive Order, and the president's authority to "prescribe policies and directives" (40 U.S.C. 121(a)) under the Federal Property and Administrative Services Act is grounded on that Act's goal of "to provide the Federal Government with an economical and efficient system."  40 U.S.C. 101.  See generally, Congressional Research Service, Presidential Authority to Impose Requirements on Federal Contractors, June 14, 2011 (R41866).

See also https://www.federalregister.gov/documents/2021/09/28/2021-21184/determination-of-the-promotion-of-economy-and-efficiency-in-federal-contracting-pursuant-to

i didn’t see any offsetting consideration of disruption impacts if employees quit or are fired for non-compliance with mandatory vaccination. 

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  • 2 weeks later...

Two interesting (to me) points from the opinion:

(1) While the court enjoined the vaccine mandate, the injunction stated that the OMB Determination and FAR Council Guidance likely complied with the APA and 41 U.S.C. § 1707, stating "Although the procedural path taken by the agencies was, at times, inartful and a bit clumsy, the Court finds based on the record before it that the Defendants likely followed the procedures required by statute."

 

(2) The court found the EO exceeded the president's authority under the FPASA stating, "FPASA’s goal is to create an 'economical and efficient system for…procurement and supply.' Kahn, 618 F.2d at 788 (emphasis added). While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination."

It also states, "neither OSHA nor the  executive branch is permitted to exercise statutory authority it does not have.... In this case, the FPASA was enacted to promote an economical and efficient procurement system, and the Defendants cannot point to a single instance when the statute has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors."

In other words, FPASA is a statute aimed at promoting economical and efficient procurement system, and the E.O.'s vaccine mandate is a "public health regulation" that exceeds the scope and purpose of the statute.

However, later in the opinion, the court rejected the plaintiff's argument that improving procurement efficiency was pretextual and stated, "the subsequent OMB Determination provided ample support for the premise that a vaccine mandate will improve procurement efficiency."

 

Putting these two points together, the Court seems to be saying that the the government has offered ample support that a vaccine mandate will improve procurement efficiency (which meets the intent and scope of FPASA) and that the government likely followed the administrative procedures required by statute to implement the mandate.  However, because the mandate ALSO involves implementing public health measures, the mandate exceeds the government's authority under the FPASA.

I think the Court's statement that "Defendants cannot point to a single instance when [FPASA] has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors," is a red herring.  FPASA was passed in 1949.  How many global pandemics have we faced since that time? The lack of examples has less to do with the scope and authority of FPASA and more to do with the lack of a public health emergency that could even rise to the level of potentially impacting procurement efficiency.

I make no prediction as to the final outcome. But I am interested to see if an appellate court will find that an E.O. issued under and facially compliant with FPASA exceeds the scope of FPASA because it also involves matters of public health.

 

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