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Under FAR Part 15 negotiated procurements, an agency must give notice and an opportunity to request a debriefing to offerors eliminated from the competitive range. But the notice requirement does not apply for task and delivery order procurements under FAR Part 16 where FAR Part 15 is inapplicable.
A recent GAO decision highlights this distinction.
The Department of Education issued multiple solicitations to meet IT requirements. One RFQ, the PIVOT H solicitation, was for hosting of applications, data, and IT systems services. The PIVOT H solicitation was issued for a task order pursuant to a multiple-award, IDIQ contract program.
Under PIVOT H, NTT DATA Services Federal Government, Inc. protested issuance of a task order to IBM, and GAO considered this protest in NTT DATA Services Federal Government, Inc., B-416123 (Comp. Gen. 2018). The RFQ was a best-value tradeoff, considering price and several non-price evaluation factors. The evaluation factors, in descending order of importance, were: technical approach, past performance, and price and subcontracting goals.
NTT argued that the agency engaged in improper additional rounds of discussions with IBM and Offeror A, but not with it. The agency erred, according to NTT, because it never made a formal competitive range announcement.
GAO rejected this argument, noting that the requirement to notify firms of the competitive range is a FAR Part 15 requirement, which was inapplicable to this RFQ because it was conducted under FAR Part 16. The RFQ stated:
Vendors are hereby instructed that, regardless of any language that may be used in this solicitation, the Department is NOT conducting this procurement under FAR [Federal Acquisition Regulation] Part 15. This procurement is being conducted under the “fair opportunity” requirements of FAR subpart 16.505.
Furthermore, “FAR § 16.505(b) states, among other things, that the requirements of FAR subpart 15.3 are inapplicable to task order competitions such as the instant acquisition.” GAO noted that “the record shows that the agency effectively established a competitive range comprised of the firms the agency determined had a reasonable chance for award.” The agency’s documentation stated that
The Department encouraged all vendors to revisit their pricing after evaluating their initial proposal and requested that they apply further discounts. Therefore, there was no reason to believe that, based on NDSFG’s and [Offeror B]’s total evaluated pricing, that either vendor could have reasonably provided more competitive pricing as they would have had to significantly reduce their proposals by approximately $21 million (21%) to be competitive with IBM and $35 million (35%) to be competitive with [Offeror A]. It should be noted that the [subsequent] negotiations with IBM and [Offeror A] did not address the technical solutions and only focused on price and past performance.
Given these facts, and that all interested parties were afforded fair opportunity twice (initial solution submission and first round of negotiations), the Department only entered into [further] negotiations with IBM and [Offeror A].
Based on this evaluation, GAO determined that eliminating NTT from the competitive range was reasonable. The notice requirements for the competitive range were inapplicable:
The protester is correct that the agency did not perform the other two elements required under FAR § 15.306 in connection with the establishment of a competitive range. Specifically, the agency did not provide DSFG with contemporaneous notice of its elimination from further consideration, or afford the firm an opportunity to request a debriefing at that time. However, since those procedural requirements are not found in FAR § 16.505, there was no need for the agency to have provided DSFG such notice and opportunity, and DSFG has not alleged or demonstrated that the agency’s failure in this regard caused it competitive prejudice. We therefore deny this aspect of DSFG’s protest.
Under FAR 16.505, then, an agency can effectively establish a competitive range without notifying an offeror or allowing the opportunity for a debriefing, because those are requirements found only under FAR Part 15. As task and delivery order procurements become increasingly popular, offerors should remember that their notification and debriefing rights may be different than expected.
By Wayne Simpson, CFCM, CSCM
In 2017 when the new administration entered office, and with both houses of Congress controlled by the same party in the 115th Congress, the Congressional Review Act of 1996 was used dozens of times in the first session of the 115th Congress to rescind Executive Orders, regulations, rules and policies issued by the previous administration. As of June 2018, 17 public laws were enacted using this authority.
Fast forward to the 116th Congress convening at Noon Eastern Time January 3, 2019. With both houses of Congress being controlled by different parties in the new Congress, and the Senate controlled by the same party as the Executive Branch, will the newly elected Congress seek to use the Congressional Review Act to attempt to undo changes made during the first two years of President Trump’s Administration? More importantly, will they be successful? Probably not, but it will be interesting to watch. Any attempts will certainly show the opposition’s displeasure with targeted Executive Orders and regulations.
Since this law took effect long after many of us had completed seventh grade Civics Class, here’s a quick primer. The Congressional Review Act of 1996 was passed as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA), signed by President Clinton on March 12, 1996. SBREFA provides additional avenues for small businesses to participate in and have access to the Federal regulatory arena. SBREFA gives small businesses more influence over the development of regulations; additional compliance assistance for Federal rules; and new mechanisms for addressing enforcement actions by agencies.
The Congressional Review Act is an oversight tool used by Congress to overturn rules issued by an executive agency or executive orders issued by the President. It is most commonly used to address actions of a previous administration. Federal agencies must submit a report to each house of Congress and the Government Accountability Office (GAO) containing a copy of rules issued. The submission to Congress and GAO must include a concise statement of the rule, whether the rule is a “Major Rule” and the rule’s proposed effective date.
Members of Congress then have specified time periods to submit/take corrective action using a joint resolution of disapproval. The joint resolution must be approved by both houses of Congress. The joint resolution is then sent to the President for signature. If the President vetoes the joint resolution, Congress can override the President’s veto.
If signed by the President, the Congressional Review Act states the “Rule shall not take effect or continue.” The rule may not be reissued in “substantially the same form” as the disapproved rule. Also, provisions that had become effective would be retroactively negated.
The Congressional Review Act also prohibits judicial review of any “determination, finding, action or omission” thereunder. The act does not define what would constitute a rule that is “substantially the same” as the nullified rule. But one very recent and excellent example of the Act’s effect on government procurement is the case of E.O. 13673 “Fair Pay and Safe Workplaces” which is no more.
Perhaps this is why it is often said “Live by the Executive Order/Die by the Executive Order—Here today/gone tomorrow.” It may also be why the late German author Otto von Bismarck once said: Laws are like sausages, it is better not to see them being made. President Kennedy later communicated this to Americans as well.
America has survived 115 Congresses—it will undoubtedly survive the next.
About the Author:
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.
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Question In your discussion of intellectual property in government contracts, you talked about government purpose rights and how you negotiated with the government for your client to keep the background technology but allow the government to own the form factor. Where both the contractor and the government contribute funding, the parties are left to negotiate…
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Agency professionals who write contracts sometimes fail to include the basic and necessary elements of a contract. Whether an agency omits necessary elements of the contract deliberately or (more likely) by accident, it’s often the contractor who suffers. This was the case in a recent procurement by FEMA (Federal Emergency Management Agency), which neglected to include several critical parts in an IDIQ contract with Pros Cleaners. When Pros Cleaners never received a task order for any work under the contract, they took the case to the CBCA (Civilian Board of Contract Appeals) claiming breach of contract. Read the full article to learn why the Court sided with the agency and what you can do to make sure your Government contracts are enforceable.
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ASHBURN, Virginia (September 19, 2018) The National Contract Management Association (NCMA)
President Charlie Williams Announces the New NCMA Chief Executive Officer
On behalf of the National Contract Management Association (NCMA) Board of Directors, I am pleased to announce the appointment of Kraig Conrad, CAE, CTP, as the new NCMA Chief Executive Officer. Kraig will formally take his position on November 1, 2018. Kraig joins NCMA with 20 years of association leadership experience. He most recently served as Chief Executive Officer of the Professional Risk Managers’ International Association (PRMIA), where he guided the PRMIA Board of Directors and its global network of more than 50,000 risk professionals to craft an enhanced vision for the group that includes a long-range strategic plan; new advocacy, certification, and training efforts; promoting the PRMIA brand; and enhancing membership benefits.
Prior to PRMIA, he held many roles at the National Investor Relations Institute, including Acting Co-Chief Executive Office and Vice President for Programs and Development. Kraig has also served as Research Lead for Strategy Practice at Corporate Executive Board, Director of Corporate Finance and Risk Management and Director of Strategic Alliances at the Association for Financial Professionals. He started his career as a Financial Analyst at Credit Suisse.
Kraig earned a Bachelor of Arts in Economics from the University of Southern California and a Master of Business Administration from the University of Illinois at Chicago. He is a Certified Association Executive and member of the American Society of Association Executives, and a Certified Treasury Professional and member of the Association for Financial Professionals.
“We are excited to have Kraig join our team. Kraig has demonstrated time and time again exemplary leadership skills and thoughtful approaches to the business of association management,” says NCMA President Charlie Williams. “We are confident that Kraig is the right person at the right time for NCMA as we continue the NCMA journey that was begun over 59 years ago. As our new CEO, Kraig’s association leadership skills will be critical to the Board of Directors as it charts the association’s strategic path forward and seeks to further elevate the association’s relevance to the profession it serves.”
The selection of Kraig concludes a national search supported by Staffing Advisors, a Washington, DC-based executive search firm. Kraig shares the NCMA dedication to professional growth and the educational advancement of acquisition and contracting professionals worldwide. Please join us in congratulating Kraig as we welcome him to the organization.
Founded in 1959, the National Contract Management Association (NCMA) is the world's leading professional resource for those in the field of contract management. The organization, which has over 18,000 members, is dedicated to the professional growth and educational advancement of procurement and acquisition personnel worldwide. NCMA strives to serve and inform the profession it represents and to offer opportunities for the open exchange of ideas in neutral forums. For more information on the association, please visit www.ncmahq.org.
Contact: Amanda Gillespie, Marketing & Communications Director email@example.com (571) 382-1127
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To answer the title question--most likely yes, for DoD. A recent DFARS final rule, Procurement of Commercial Items (DFARS Case 2016-D006), added the following definition at DFARS 202.101:Quote
“Nontraditional defense contractor” means an entity that is not currently performing and has not performed any contract or subcontract for DoD that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the regulations implementing such section, for at least the 1-year period preceding the solicitation of sources by DoD for the procurement (10 U.S.C. 2302(9)).
Since small business concerns are exempt from CAS, most small business concerns would fall within the definition. This has significant consequences because the final rule also added the following at DFARS 212.102(a)(iii):Quote
Nontraditional defense contractors. In accordance with 10 U.S.C. 2380a, contracting officers may treat supplies and services provided by nontraditional defense contractors as commercial items. This permissive authority is intended to enhance defense innovation and investment, enable DoD to acquire items that otherwise might not have been available, and create incentives for nontraditional defense contractors to do business with DoD. It is not intended to recategorize current noncommercial items, however, when appropriate, contracting officers may consider applying commercial item procedures to the procurement of supplies and services from business segments that meet the definition of “nontraditional defense contractor” even though they have been established under traditional defense contractors. The decision to apply commercial item procedures to the procurement of supplies and services from nontraditional defense contractors does not require a commercial item determination and does not mean the item is commercial.
So, DoD contracting officers can use FAR part 12 procedures to buy both commercial and noncommercial items from most small business concerns. I admit that I did not appreciate the scope of this rule when I first read it. I would have expected more dancing in the streets by both small business concerns and DoD contracting officers. Maybe there was and I missed it.
In 1972, the Commission on Government Procurement wrote that Congress should limit its acquisition legislation to fundamental acquisition matters and let the Executive Branch implement Congress's policies through specific acquisition regulation. If Congress had listened, it would be passing less acquisition legislation, doing a better jub of fulfilling its oversight responsibility of acquisition activities, and the FAR Councils would be performing their regulatory duty to implement Congress's acquisition policies.
Unfortunately, Congress didn't listen--to its own creation. Today, Congress doesn't deal with fundamental acquisition matters, it deals with acquisition minutiae and esoteric details--especially when it comes to the Department of Defense (DoD). Someone has an idea and before you know Congress is passing another section of acquisition legislation. No idea is too small for Congress to more on its acquisition legislation dump-truck. For the most part, Congress meddles in the acquisition process through the House and Senate Armed Services Committees. These committees propose acquisition legislation in their annual National Defense Authorization Acts (NDAA) with much of it in Title VIII of the NDAAs. Title VIII is usually labeled: Acquisition Policy, Acquisition Management, and Related Matters. You can run from it, you can stall it, but you cannot hide from it.
In the past 17 NDAAs, Congress has passed 725 sections of legislation in Title VIII of the NDAAs. Another 166 sections of acquisition legislation are included in other Titles of the 17 NDAAs. That's at least 891 sections of acquisition legislation in the past 17 NDAAs. What is worse, Congress is picking up its legislative pace and has passed more sections of acquisition legislation in the past 3 years than ever before.
If you have been a follower of Wifcon.com for the past 17 years, you would be familiar with the 17 NDAAs by viewing them here. Take a look at the National Defense Authorization Act for Fiscal Year 2018 sections for Title VIII. Do you see coherent acquisition policy? No, you do not! Its a lot of junk legislation patched onto a growing body of junk legislation that is called Title 10 of the U. S. Code.
Don't think you are safe if you are in a civilian agency. Remember, the NDAA is an annual event and during debate on the Senate or House NDAA versions, any stray piece of legislation may attach itself to the NDAA. It's kind of like a tick or leech latching onto you. Take another look at the sticky bomb idea on another of my blog entries. If you throw an amendment at the NDAA during the debate process, it might stick to the NDAA and become law. See if you can identify the source of TITLE XVII that is included in this year's NDAA.
I'm getting angry again just thinking about this so I better end here. However, you should get angry too. Your the ones who have to deal with it on a daily basis. If you need some incentive to get angry, there are about 250 sections from the last 3 NDAAs waiting for the FAR Councils to deal with them.
I've posted an article with tables to the Analysis Page with the same name as this blog entry. You can probably see my anger growing with sarcasm as I progress towards the end of that article--see the part on zombie legislation.
Some of you are too young to remember the movie Network. However, there is a part of the movie where the character Howard Beale decides he has had enough. I looked at it again this morning.
In the 1973 futuristic mystery thriller Soylent Green there’s an exchange between Detective Thorn (Charlton Heston) and Hatcher (Brock Peters):
Det. Thorn: Ocean's dying, plankton's dying . . . it's people. Soylent Green is made out of people. They're making our food out of people. Next thing they'll be breeding us like cattle for food. You've gotta tell them. You've gotta tell them!
Hatcher: I promise, Tiger. I promise. I'll tell the Exchange.
Det. Thorn: You tell everybody. Listen to me, Hatcher. You've gotta tell them! Soylent Green is people! We've gotta stop them somehow!
Acquisition Reform is like Soylent Green, it’s people. I don’t mean the Congresscritters, like Representative Thornberry and Senator McCain, and their Committees. I don’t mean the Administrator of the Office of Federal Procurement Policy, whoever he or she may turn out to be. I don’t mean the acquisition and procurement policy wonks in the Pentagon and elsewhere.
This past week (i.e., 14 – 20 May 2017) was a big week for the professional acquisition reformers:
The Advisory Panel on Streamlining and Codifying Acquisition Regulations issued the “Section 809 Panel Interim Report” (May 2017). Read the 60 page report, and formulate your own opinion if it will fix the problems in Government acquisition. Frankly, I think it will take more than getting rid of the $1 coin requirement, but I could be wrong.
Representative William McClellan "Mac" Thornberry introduced H.R. 2511 “To amend Title 10, United States Code, to streamline the acquisition system, invest early in acquisition programs, improve the acquisition workforce, and improve transparency in the acquisition system.” The short title on that would be ‘‘Defense Acquisition Streamlining and Transparency Act’’. (sic) Read the 80 page resolution, and formulate your own opinion if it will fix the problems in Government acquisition. [If we have Representative Thornberry, can Senator McCain be far behind? (Or, is that FAR behind?)]
A (moderately) reliable source has told me that the Department of Defense will be leaving Better Buying Power behind, now that Mssrs. Carter and Kendall are gone. But, wait, acquisition reform has not been abandoned. Apparently, it will go on, but now as “Continued Acquisition Reform.” Presumably that will be abbreviated as “CAR.” Continued Acquisition Reform should not be confused with Continuous Acquisition Reform nor Continued Acquisition Reform, nor Continuous Process Improvement, for that matter, those would all be bygone days.
The professional acquisition reformers have time and again passed legislation and issued regulations to “fix” the acquisition process. This fiscal year (2017) Title VIII (i.e., Acquisition Policy, Acquisition Management, and Related Matters) of the National Defense Authorization Act (NDAA) had 88 sections. The year before, 77 items. And, yet, Representative Thornberry and Senator McCain believe there is a need for a lot more acquisition reform legislation this year. Title VIII has included over 500 sections over the last ten years, but we still need more. What we have at issue here is what is referred to as the Law of the Instrument. Although he was not the first to recognize the Law, Abraham Maslow is probably the one best remembered for articulating it, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." For those of us on the receiving end of the Congressional output that would be, “I suppose it is tempting, if the only tool you have is a legislation, to treat everything as if it were a bill." I suspect, although I cannot be positive, that most, if not all, of the folks doing the legislating have never had to use the Federal Acquisition Regulation (FAR) to buy anything. If they had, they would not be nearly so cavalier in tossing around statements about how bad the acquisition process is, and how more legislation is the answer.
Will such legislation solve the acquisition problem? According to the Honorable Frank Kendall the answer is a resounding “NO.”Quote
Frank Kendall, then undersecretary of defense for acquisition, technology and logistics (USD(AT&L)), condemned, or “slammed,” or “blasted,” such legislation.
Frank Kendall, who has served as the Pentagon's top weapons buyer since October 2011, blasted Congress's acquisition reform efforts, which he said almost inevitably create more bureaucracy and regulation.
Kendall called legislative action “an imperfect tool to improve acquisition results.”
“It is not a good instrument to achieve the results that I think the Hill is after, but they keep trying,” he said. “To be honest, I believe that as often as not, what they do does not help. In some cases, it has the opposite effect.”
Bloomberg Federal Contracts Report, “Outgoing DOD Weapons Buyer Slams Congress’ Acquisition
But, in all fairness, it’s not just them. Since we last had a reissuance of the FAR in March 2005, the FAR Council has brought us 95 Federal Acquisition Circulars (FACs) to update and expand the FAR. Since we last has a reissuance of the Defense Federal Acquisition Regulation Supplement (DFARS) in January 2008, the Defense Acquisition Regulations Council has brought us 211 Defense FAR Supplement Publication Notices (DPNs). With all of that, there are still dozens of open FAR and DFARS cases yet to be heaped on our plate. Although legislation may have been a major root cause of much that change activity, we can probably offer some of our “thanks” to the President, OMB, OFPP, GAO, Boards of Contract Appeals and Courts. Admittedly, now and again, a good idea actually gets slipped into the regulations. [Note: The number of FACs and DPNs issued in 2017 was artificially suppressed as a result of Executive Order 13771 – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. The two councils (i.e., FAR Council, Defense Acquisition Regulations Council (DAR Council) and the Civilian Agency Acquisition Council (CAA Council)) withheld publication of a large number of cases while policies and procedures were “sorted out.”]
[Note: Refer to Augustine’s Laws, Law Number XLIX: Regulations grow at the same rate as weeds.]
And, if that were not enough, we have institutional acquisition reform (e.g., policy letters, memoranda, directives, instructions, guidebooks, handbooks, manuals). Everyone seems to want to get into the act in one way or another. It is interesting to note, however, that the “perpetrators” of this institutional acquisition reform do not see it in the same light as acquisition reform legislation.
But, I recognize the lesson that King Canute was trying to teach when, in the apocryphal anecdote, he had his throne taken to the sea and ordered the tides not to come in. They did anyway. Legislators will legislate, it’s what they do. Regulators will regulate, it’s what they do. Policy makers will policymake, it’s what they do. None of them will willingly give up their rice bowls.
Let’s get back to Soylent Green.Quote
“Acquisition improvement is going to have to come from within. It is not going to be engineered by Hill staffers writing laws for us,” Kendall said. “It's going to be done by people in the trenches every day, dealing with industry, trying to get incentives right, trying to get the performance right, trying to set up business deals and enforce them, set reasonable requirements in our contracts.”
Bloomberg Federal Contracts Report, “Outgoing DOD Weapons Buyer Slams Congress’ Acquisition Fixes,” Andrew Clevenger, January 17, 2017
Better Buying Power (BBP)? The Honorable Mssrs. Carter and Kendall were responsible for BBBP, in all its iterations. Did that rise up from the trenches? Or, was it handed (or pushed) down from above? Isn’t this a bit like the pot calling the kettle black? If you will permit the adding of a single letter to a line of Hamlet by William Shakespeare, "The laddy doth protest too much, methinks."
[Note: Refer to Augustine’s Laws, Law Number L: The average regulation has a life span one-fifth as long as a chimpanzee's and one-tenth as long as a human's, but four times as long as the official's who created it.]
Well, whichever way you look at it (i.e., upside, downside, sidewise) it is all more work for the acquisition professionals that must do the daily work of buying supplies and services for the Government. If you want to have an idea of how all of this acquisition reform weighs us down, then take a look at William Blake’s illustration “Christian Reading in His Book” for John Bunyan’s The Pilgrim's Progress. It will depend on how many pixels the image you find has, but it looks to me that he is reading the FAR.
Who are the Soylent Green? Not the policymakers, but the people in the trenches, doing the hard work of acquisition on a daily basis, day in and day out, week in and week out, month in and month out, year in and year out. The contract specialist, contract negotiator, contract administrator, cost or price analyst, purchasing agent or procurement analyst just trying to get the job done. These are, for the most, part the unsung heroes and heroines of acquisition reform. These are the ones who, through innovation and personal initiative reform that acquisition process, one acquisition at a time. And, if we are lucky, or clever, are able to pass successes along to others.
As acquisition professionals, we must pass on our successes, and failures, to others, so that they may join in the fruits of success, and avoid the pitfalls of failure. You cannot count on “Lessons Learned,” alone. How often do lessons learned go unread and unlearned? You cannot count on “Best Practices,” alone. How often do best practices, go unread and unpracticed? Share with others. Share quickly. Share often. Share wherever you can.
A final thought.Quote
So what is to be done? By and large the answer to that question is well understood—in fact, many friends of mine such as former Deputy Secretary of Defense David Packard; the head of the Skunk Works Kelly Johnson; Air Force General Bennie Schriever; Admiral Wayne Meyer and Army General Bob Baer, among others, were providing the answer decades ago. What is required is simply Management 101. That is, decide what is needed; create a plan to provide it, including assigning authority and responsibility; supply commensurate resources in the form of people, money, technology, time and infrastructure; provide qualified leadership; execute the plan; and monitor results and strenuously enforce accountability. Ironically, little of this requires legislation—but it does require massive amounts of will . . . from all levels of government. Unfortunately, many of the problems are cultural—and it is difficult to legislate culture. But there is much that could be done.
Views from the Honorable Norman R. Augustine
The Acquisition Conundrum
DEFENSE ACQUISITION REFORM: WHERE DO WE GO FROM HERE? A Compendium of Views by Leading Experts, STAFF REPORT PERMANENT SUBCOMMITTEE ON INVESTIGATIONS UNITED STATES SENATE (October 2, 2014)
The absolute final thought. I’m sorry, I can’t help myself. I don’t care about King Canute: Don’t legislate. Don’t regulate. Just leave us alone to do our work as best we can.
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The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor. Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 N&CR ¶ 22), I expressed the fear that the reasoning would be subsequently applied to procurement contracts.
My fear was realized in a construction contract case, Metcalf Construction Co. v. U. S., 102 Fed. Cl. 334 (2011). In that decision, the judge described eggregious conduct on the part of the government officials that would have been held to be a breach of the implied duty of good faith and fair dealing under many earlier cases. However, the judge held that under the Precision Pine standard, the contractor had not proved that the actions were specifically targeted at the contractor. In the February 2012 Nash & Cibinic Report (26 N&CR ¶ 9), I criticized this decision but stated that I believed that even if the decision was affirmed on appeal, most contracting officers would not take this as a signal that the proper way to administer contracts was to abuse the contractor.
Fortunately, a panel of the Federal Circuit has reversed the decision, Metcalf Construction Co. v. U. S., 2014 WL 519596, 2014 U.S. App. LEXIS 2515 (Fed. Cir. Feb. 11, 2014). The court held that the lower court had read Precision Pine too narrowly and that “specific targeting” was only one example of the type of conduct that could constitute a breach of the implied duty of good faith and fair dealing. Importantly, the court also rejected the government’s argument that this “implied duty” only could be found when it was footed in some express provision of the contract. The court concluded that the correct rule was only that the express provisions of a contract had to be examined to ensure that they had not dealt with the conduct of the government; for if they had, they would override the implied duty.
This leaves us in a tenuous position with regard to the views of the Federal Circuit. We have one panel in Precision Pine stating a narrow rule, another panel in Metcalf Construction stating the traditional rule, and a third panel in Bell/Heery A Joint Venture v. U.S., 739 F.3d 1324 (Fed. Cir. 2014), ruling in favor of the government because the contractor had not alleged facts showing that the government had “engaged in conduct that reappropriated benefits promised under the contract” (which is part of the Precision Pine reasoning). Thus, it is difficult to state where the judges of the Federal Circuit stand. Hopefully, the court will agree to take either Metcalf Construction or Bell/Heery to the full court for an en banc review of the issue.
I’ve never been sure why the Department of Justice has so vigorously argued that the government should not be held to the same standards of conduct as a commercial buyer. Of course, persuading the courts and boards that a narrower standard should be applied to the government is a way to win litigated cases. But, in my view, encouraging abusive or non-cooperative conduct hurts the government as much as it hurts its contractors. I have taught for many years that in the long run the government benefits from actions that show industry that it is a fair contracting partner. A line of published judicial decisions that demonstrates that the government is not such a partner is one more of the many messages that tell companies they should sell to the government only when they can find no other customer. Surely, this is not the message that government agencies in need of products and services on the commercial marketplace want to convey to companies that can provide those products and services.
Many years ago when I came to Washington to work in the field of government contracting, I concluded that there was one major advantage to being on the government side of the negotiating table. That advantage was that I was under no pressure to extract money from the contractor by unfair bargaining or unfair contract administration. To me fairness was an integral part of the job of a government employee. I still believe it and teach it. Thus, no matter what the outcome of the good faith and fair dealing litigation, I will continue to urge government employees that fair treatment of contractors is the only way to go.
Ralph C. Nash
When I get older, losing my hair
Many years from now . . . .
When I'm Sixty-Four
John Lennon, Paul McCartney
Shortly after we celebrate our country's independence on July 4, 2013, Wifcon.com will end its 15th year on the internet. With much help from the Wifcon.com community, I've raised a growing teenager. When I started, I was 49 and my hair was so thick that I often shouted ouch or some obscenity when I combed it. Wifcon.com has existed in 3 decades and parts of 2 centuries. During that period, I've updated this site for every work day--except for the week or so when I called it quits. I remember the feeling of relief. I thought it was over. However, many of you convinced me to bring it back. Yes, just when I thought I was out, many of you pulled me back in.
As I mentioned in an earlier post, someone once told me that Wifcon.com was my legacy. I once had great hopes for a legacy. Perhaps, a great saxophone player belting out a solo in front of thousands of fans and seeing them enjoying themselves. Instead, here I sit in my solitude looking for news, decisions, etc., to post to the home page. For many years, my dog Ambrose kept me company. Now, my dogs Blue Jay and Lily stare at me and look for attention. With my sights now set realistically, I accept that Wifcon.com is my legacy. It's the best I could do.
Every now and then, I receive an e-mail from someone thanking me for Wifcon.com. They tell me how it helped their careers. These e-mails keep me and Wifcon.com going.
Send me a postcard, drop me a line,
Stating point of view
Indicate precisely what you mean to say
Yours sincerely, wasting away
Give me your answer, fill in a form
When I'm Sixty-Four
John Lennon, Paul McCartney
The thoughts in these e-mails won't let me quit. I still search each night for something to add to the site in hopes that it will increase your knowledge. If I find something new, I still get excited. Often, it feels like a self-imposed weight around my neck. What started as a release for my imagination has evolved into a continuing and daily addition to the contracting community. In the evenings, it is as if I'm Maillardet's automaton. I head over to my office, sit before the computer, and update. Then I send the updated pages to Virginia where it is accessed from around the world. Maybe I'm addicted to Wifcon.com; maybe I was born with the Wifcon.com gene.
If you haven't added the numbers, I'm 64 now. Wifcon.com and I are showing our age. I can comb the top of my head with my fingers. The ouches and other obscenities caused by my once thick hair are gone. A recent upgrade to the discussion forum requires that I turn the "compatibility mode" off on my browser. In that mode, I realized that Wifcon.com is ugly. I have current software for the needed future redo of this site.
I am Wifcon.com; Wifcon.com is me. It is my legacy and my albatross. As always, thank you for your support.
You'll be older too,
And if you say the word,
I could stay with you.
When I'm Sixty-Four
John Lennon, Paul McCartney