Jump to content
The Wifcon Forums and Blogs

Recommended Posts

Have you seen Item VI of the new FAC 2005-46? COs must now include a contract clause "in all contracts" that encourages contractors to encourage their employees from texting while driving. The clause includes a definition of "driving." Contractors must flow the clause down to all subcontracts in excess of the micropurchase threshold. The new policy implements an executive order.

Our government has gone off the rails. Since this is a representative democracy, it means that we have all lost our minds.

Please don't come back and tell me that texting while driving is a serious problem. So is stupidity, and we don't have a clause for that. Yet.

Share this post


Link to post
Share on other sites
Have you seen Item VI of the new FAC 2005-46? COs must now include a contract clause "in all contracts" that encourages contractors to encourage their employees from texting while driving. The clause includes a definition of "driving." Contractors must flow the clause down to all subcontracts in excess of the micropurchase threshold. The new policy implements an executive order.

Our government has gone off the rails. Since this is a representative democracy, it means that we have all lost our minds.

Please don't come back and tell me that texting while driving is a serious problem. So is stupidity, and we don't have a clause for that. Yet.

Agreed. It isn't the dumbest thing to come down the pike, but it is really close.

Of course, maybe it is just my 'generation' speaking. I can barely text with both hands and full attention, let alone while driving. My grandkids are whizzes.

Share this post


Link to post
Share on other sites

I don't think it's the collective "We" that has lost it. It's "he" as in the President. This results from an executive order which starts out

By the authority vested in me as President by the Constitution and the

laws of the United States of America, including section 7902© of title

5, United States Code, and the Federal Property and Administrative Services

Act of 1949, as amended, 40 U.S.C. 101 et seq., and in order to demonstrate

Federal leadership in improving safety on our roads and highways and

to enhance the efficiency of Federal contracting, it is hereby ordered as

follows:

Others might disagree but of all the things going on in the world right now, it seems our President should have more pressing matters

Share this post


Link to post
Share on other sites

Looking on the bright side, it isn't as bad as the Franken Amendment (regarding mandatory arbitration of employment disputes), where even the inadvertant omission of the clause could result in an ADA violation. Pub. L. 111-118, sec. 8116. See DFARS 222.7401(a).

Share this post


Link to post
Share on other sites

What is worrisome is the tendency on the part of congresses and presidents to address various social issues and ills by putting clauses in government contracts. While this has its place (equal employment opportunity), if we are going to tell contractors and subcontractors to develop policies and programs about texting, where does it end? Why not clauses about guns, child abuse, treatment of animals, and who knows what other social issue or ill? Will the clauses change when there is a change in the political party in power? Moreover, such programs cost money to develop and maintain, and could have unforeseen legal implications for contractors and subcontractors. What if any contract administration obligations does the clause impose on COs, contractors, and subcontractors.

And what is a subcontract? The clause says that contractors "shall" insert the substance of the the clause in all subcontracts above the micro-purchase threshold. FAR does not contain a universally applicable definition of subcontract, and the new subpart 23.11 does not provide one. To which of of a contractor's business transactions with other firms does this apply?

Share this post


Link to post
Share on other sites
What if any contract administration obligations does the clause impose on COs, contractors, and subcontractors.

Doesn't look like the clause imposes any obligations on the contractor or its subs. It is not mandatory - yet. It is a waste of words and paper. It also adds yet more paper and thickness to government solicitations and contracts that actually publish full text of the clauses.

"... (c ) The Contractor should--

(1) Adopt and enforce policies that ban text messaging while driving--

(i) Company-owned or -rented vehicles or Government-owned vehicles; or

(ii) Privately-owned vehicles when on official Government

business or when performing any work for or on behalf of the Government.

(2) Conduct initiatives in a manner commensurate with the size of the business, such as--

(i) Establishment of new rules and programs or re-evaluation of existing programs to prohibit text messaging while driving; and

(ii) Education, awareness, and other outreach to employees about the safety risks associated with texting while driving.

(d) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (d), in all subcontracts that exceed the micro-purchase threshold."

Share this post


Link to post
Share on other sites
Joel:

Why do you say that it looks like the clause does not impose any obligation on the contractor?

That probably was too strong a statement. Per definition in FAR Part 2, "Should means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance."

However, the stated scope and purpose of the Interim rule - as repeated throughout the FAR Case 2009-028 is: "Encouraging [ or: "to encourage"] contractors to adopt and enforce policies that ban text messaging while driving."

It doesn't "require" the contractor do anything from what I read. Our organization's lawyers keep telling us that, if we want something to be mandatory, don't use the term "should" in our contract; use the Imperative.

I suppose that contractors "will be expected" to adopt anti-texting policies. However, what are we going to do if they don't? Terminate for Default? Not pay? Fire the program manager, project manager, supervisors, employees?

Share this post


Link to post
Share on other sites

It is interesting that it took one year to issue an interim rule without public comment a full year after the Executive Order, which had a required date for agency implementation of 90 days from the date of the order (October 1, 2009).

"Summary: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement Executive Order 13513, issued on October 1, 2009, entitled ``Federal Leadership on Reducing Text Messaging while Driving.'' This Executive Order was issued to demonstrate Federal leadership in improving safety on the nation's roads and highways, and to enhance the efficiency of Federal contracting. The purpose of this policy is to prevent the unsafe practice of text messaging by Federal contractors while driving in connection with Government business."

"D. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because this rule implements Executive Order 13513, ``Federal Leadership on Reducing Text Messaging While Driving,'' which had a required date for agency implementation of 90 days from the date of the order (October 1, 2009). An interim rule is necessary to improve safety on our roads and highways and to enhance the efficiency of Federal contracting. Specifically, this order requires agencies to encourage Federal contractors and subcontractors to adopt and enforce policies banning text messaging while driving company-owned or -rented vehicles or Government-owned vehicles, or while driving personally- owned vehicles when on official Government business or when performing any work for or on behalf of the Government. The Councils believe an interim rule in the FAR will provide the Contracting Officer the relevant regulatory guidance needed when addressing requirements outlined in the Executive Order. However, pursuant to 41 U.S.C. 418b

and FAR 1.501-3(B), the Councils will consider public comments received in response to this interim rule in the formation of the final rule."

Share this post


Link to post
Share on other sites
Have you seen Item VI of the new FAC 2005-46? COs must now include a contract clause "in all contracts" that encourages contractors to encourage their employees from texting while driving. The clause includes a definition of "driving." Contractors must flow the clause down to all subcontracts in excess of the micropurchase threshold. The new policy implements an executive order.

Our government has gone off the rails. Since this is a representative democracy, it means that we have all lost our minds.

Please don't come back and tell me that texting while driving is a serious problem. So is stupidity, and we don't have a clause for that. Yet.

Why just texting? I have a problem with shaving, putting on makup, eating, etc. We need a clause for these too! If it wasn't so sad I'd be laughing my butt off.

Share this post


Link to post
Share on other sites
Why just texting? I have a problem with shaving, putting on makup, eating, etc. We need a clause for these too! If it wasn't so sad I'd be laughing my butt off.

How about a clause that goes further saying contract employees must be good citizens - no texting, obeying the speed limits, paying taxes, always vote, and be president of the local PTA?

Share this post


Link to post
Share on other sites
Why just texting? I have a problem with shaving, putting on makup, eating, etc. We need a clause for these too! If it wasn't so sad I'd be laughing my butt off.

Nah we just need a law that requires everyone who drives to keep 2 hands on wheel at all times and makes it a primary offense so law enforcement can pull people over for it. Think of all the money from the tickets. No more texting, changing radio stations, flipping people off :D Oh wait - may have gone too far with that last one

Share this post


Link to post
Share on other sites
Why just texting? I have a problem with shaving, putting on makup, eating, etc. We need a clause for these too! If it wasn't so sad I'd be laughing my butt off.

Oh, Lean, please don't give people ideas. :D

Share this post


Link to post
Share on other sites

Vern, you mentioned child abuse. I remember a few years ago when the child trafficking clause came out. I was a DoD civilian and the required training for the new clause was this ridiculous simulation game in which you went on official busienss overseas and you were presented with the opportunity to buy drugs and hookers....strangest contracting training I ever had (and the most silly....if you need a class to tell you that you are not supposed to be engaging child prostitutes while on official duty, there is a probably a bigger issue).

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.

×