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Everything posted by bob7947

  1. This Executive Order may have been issued late in the day because I haven't seen much on it. It is on the Home Page and here: Executive Order on Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency.
  2. The New Limitations on Subcontracting: New Rules, New Uncertainties. By Vernon J. Edwards.
  3. This is Vern's article about the case. COMMERCIAL ITEMS: Confusion In Court.
  4. These items will be posted on the Home Page for tomorrow. So Tonight I'm posting it here too. Government Contractor Agrees to Pay Record $48.5 Million to Resolve Claims Related to Fraudulent Procurement of Small Business Contracts Intended for Service-Disabled Veterans. Read the DOJ wording for the one below. Texas company convicted for supplying potentially tainted rocket fuel to NASA. I don't know if I'll find anything else but I'm not done with my review yet.
  5. I found the COFC opinion that was appealed to the Federal Circuit. it is JKB Solutions and Services, LLC. v. U. S., No. 19-1390C, October 16, 2020. Does anyone believe that the COFC read the clause?
  6. This is from NPR. It is from the author of Flying Blind and is about 36 minutes. 'Flying Blind' author says Boeing put profit ahead of safety.
  7. There are around 500 max planes flying now. To my knowledge, none crashed since they were allowed to fly again. However, the damage is done in consumers' minds. Boeing decided on development of a software program that took the controls of the Max out of the pilots' hands and sent the pilots--and passengers--on a series of 10-second roller coaster rides until the pilots were unable to compensate for the faulty progam and crashed into the ground at over 500 mph. Boeing was at fault. The FAA approved the MAX and MCAS as it was originally set up. The FAA is at fault and someone needs to evaluate how FAA conducts tests. No crash test dummies need apply. The European Union Aviation Safety Agency put the Max with the larger engines through its paces even without MCAS on and it was stable during the tests. Boeing and FAA failed all of us because they gave Communist China the opportunity to be the first country to ground the Max after the two crashes. They didn't enjoy that much, I'm sure.
  8. Thank you Mathew. I watched Downfall: The Case Against Boeing. Boeing made a business decision. Instead of building a new design, Boeing, like EUROplane, decided to modify an earlier platform. Read Air Current's Boeing's MCAS on the 737 Max may not have been needed at all.
  9. I found a new report that is hot off the press. It is called: DoD: State of Competition within the Defense Industrial Base. It was announced at the White House today in a Fact Sheet entitled: Department of Defense Releases New Report on Safeguarding our National Security by Promoting Competition in the Defense Industrial Base. In the report something called a Procurement Business Intelligence Service Competition Analysis Scorecard may exist somewhere in DoD. I found it mentioned at p. 3 of the DoD report. I found this toolbox (I'm sure you know how much I love the term scorecards and toolboxes.) The first contracting law that I found was in 1792. Since then there have been many perfections to the process by law, regulation, etc. What we have is Procurement Process Perfection Proliferation or pee-pees for short. (If I say pee-pees out loud my dogs will want to go outside and do something.)
  10. One of my colleagues wouldn't walk off the paved roadway at Rocky Flats because he feared it was contaminated and we weren't wearing dosimeters. I was strolling around Oak Ridge after work once and ran into a creek with the radioactive sign. That was it for that stroll.
  11. This is my third and last post on this subject. I'll try and make this one short. Again this was during the 1990s and my first involvement with M&O contracts. The first thing I did was order a computer run showing DOE's contracts that included, among other things, all the obligations by date to all contracts. Nothing extraordinary except that DOE was dumping funds in its M&O contracts at the end of the fiscal year. Of course, unobligated amounts is what Congress looks at. I've hightlighted the "commonly recognized indicators for" M&O use. Let me expand on those a bit: broad statement of work. The statement of work tells one next to nothing because actual work is sent to the M&Os by task. requirement is continuing with no foreseeable end. At least one M&O contract had an award date in the 1940s and others were not much younger. The contractor’s workforce is large, remaining at the site despite change of contractors. The contractor must link its accounting system with the Department’s, and integrate its budget process with the Department’s. They don't mention another feature. M&O's are funded with no-year funds. Now, sit back and think about this. Are we really talking about contractors or government regional offices? That is one thing that always bothered me. Then we were invited to a meeting where DOE explained its accounting system that included the integration of M&O contracts. It was great. One could see everything. The M&O work was coded by task numbers and a new feature that went beyond obligated and unobligated funds. This was costed obligations (spent funds) and uncosted obligations (unspent funds). Everything fell into place. By the end of the DOE meeting, I was squirming in my seat because the uncosted obligations totaled about 80% of DOE's annual budget or about $12 billion. That was when a billion dollars was a lot of money. Of course, I orderd one of those computer runs and all the task order codes. Then the fun began. DOE could hide appropriated no-year funds from Congress by obligating it to M&O contracts since they can last for decades. Once with an M&O, the funds disappeared from Congress's view but was still visible in DOE's financial system. All that was left for us was proving that DOE could give some of that $12 biillion back to the Treasury. What to do? Simple, look for dead programs that continue to be funded and have uncosted obligations. We found some of those and it was time for a field trip. One M&O accountant explained that the M&O didn't need the DOE funds because the program was dead but held the funds in reserve. Another M&O program manager pointed to an empty field and explained that was where the building would have been before the program was killed but the funds remained as uncosted abligations. When we talked to a DOE Area Office Manager, he said something like "We were wondering when GAO would finally find out about uncosted obligations." Congress reduced DOE's budget by about $4 billion the next fiscal year. Now, DOE must submit bith its regular budget request a report on its uncosted obligations. That was the end of my work with M&O contracts. I moved on to the IRS and annoyed them about task order contracts. From there I retired.
  12. Since several of you read my earlier post about management and operating contracts (M&O), I decided to add two more posts. I worked with these contracts in the 1990s and found them fascinating--can you tell? Here is more than a starting point from part of DOE's Acquisition Guide. (Match the number to the FAR) It is the DISCUSSION OF THE ORIGIN, CHARACTERISTICS, AND SIGNIFICANCE OF THE DEPARTMENT OF ENERGY’s MANAGEMENT AND OPERATING (M&O) FORM OF CONTRACT. At the end on p, 12 and all of p. 13 it provides key aspects of DOE's M&O contracts. Read #5 "contractor’s workforce is large, remaining at the site despite change of contractors" Whoa, what's that. That is where my colleague got the idea of M&O contractors as "boarding parties." Usually, these contracts encompass the functions of a small city. Think of the M&O as the election of a new mayor and city coumcil for a small city. The populace remains in the city. When you build a nuke you develop a lot of science as a by-product: DOE's Office of Science and its M&Os, of course the bomb: DOE's National Nuclear Security Administration and its M&Os, a nasty mess around the country: DOE's Office of Environmental Management and its M&Os. Sometimes, I look at the M&O National Laboratories on google maps. Here's a game I sometimes play called Where's the Accelerator. There are at least 2 types--circular and linear with experimental stations attached. Using google maps, can you spot them at Fermilab? (circular) Argonne? (circular) Thomas Jefferson National Lab? (linear) Hint: These are user facilities where members of educational institutions and corporations can run experiments. You will probably find housing facilities for the users. Of course, managed by the M&Os. There may be more than one accelerator at a site. I will add the 3rd post at a later date.
  13. I posted a link to the Department of Energy/National Nuclear Security Administration management & operating contracts on nuclear related work mentioned above on the Home Page. They are performance reviews but the contracts are there. These contracts are somewhat different than typical FAR contracts and they include DEAR clauses. I haven't worked with them in about 25 years. When I first looked at them, I couldn't figure out what they were. Then I read about how they were developed from the Manhattan Project during WWII. It took some time for me to figure them out. I'm posting this because most of you probably have not seen one. This can be part of your education. I don't know how much they've changed over the years. I hope they have for the better. One of my colleagues came up with the term "boarding party" for the actual contractors. I always liked that. Maybe you can figure out why.
  14. I'll add it so we know what is being discussed. The excerpt is on p. 30 of Golden IT, LLC v. U. S. and Spatial Front, Inc., No. 21-1966C, February 4, 2022.  (February 7, 2022) It is in footnote 38 on p. 30 and runs on further. ******** here_2_help: I appreciate you mentioning that bid protests are posted on the Home Page so that others may use them too.
  15. Why not add in a bogus RFP requirement from 1973. From the RFP. Add the 12, 108, and 770 together and you have 890 solid rocket motors for 444 Space Shuttle flights over the Shuttles planned 11 years. From 1981 through 2011 there were 135 Space Shuttle flights that required 270 solid rocket motors. I'll stop here
  16. Last month, I saw another DoD-IG report on TransDigm Group and I thought I ignored it. I didn't and it is on the Home Page. That report is Audit of the Business Model for TransDigm Group Inc. and Its Impact on Department of Defense Spare Parts Pricing (DODIG-2021-043). It went public on 12/13/21. The DoD-IG report that Vern posted was from 2/25/2019 and appears to be part 1 of this effort. I decided to see what TransDigm Group had to say about the latest DoD-IG report and it is: TransDigm Comments on DOD IG Report. dated 12/13/2021. The draft bill that Vern posted is labeled the Second Session of the current Congress. In short, if that bill is/has been introduced it will be in 2022. If it goes nowhere over the next 6 or 7 months watch the next House version of the NDAA for 2023.
  17. This year, I started doing this annual analysis around Christmas. Here is a short recap of what happened with the NDAA. The House passed H. R. 4350 on 9/23/2021 - the House version of the NDAA. The Senate Armed Services Committee introduced S. 2792 on 9/22/2021 in the Senate with a written report. However, the Senate never passed S. 2792. The Senate considered H. R. 4350 from 11/19/2021 unti December 2, 2022 without any further action. Members of the Senate and House Armed Services Committee worked together on their own to come up with an NDAA for FY 2022. S. 1605 was adrift in the Senate and amended with the "agreed to" NDAA for FY 2022. It quickly passed both the House and the Senate. A "Joint Explanatory Statement to Accompany the National Defense Authorization Act for Fiscal Year 2022" was written and S. 1605 states that it has the same force as a "Conference Report." In the 21 years I've been doing this it is only the second time that happened. That's the official story. This is what I think happened--and probably did--after # 3 above. Members of the Senate Armed Services Committee realized that they were unable to amend H. R. 4350, hold a conference with the House to discuss differences between H. R. 4350 and a Senate bill, and pass a conference report in both houses in a couple of weeks. The Senate did collect 945 amendments and dropped them into another amendment called S. Amdt. 3867. S. Amdt 3867 is an unworkable mess. The Senate tried to close the Senator's ability to add amendments on December 2, 2022 --something called cloture--but couldn't get cloture passed in the Senate. They had no bill in the Senate because S. 2792 never passed the Senate, there were already 945 amendments to H. R. 4350, they could'nt end the amendment process and they wanted to get home for the holidays. That is when members of the Armed Services Committees went off the grid and used H. R. 4350 and S.2792 as their starting point and picked and chose amendments they could agree to and added them to the 2 bills. When this was going on some staff were preparing the Joint Explanatory Statement I mentioned above. It is on the House Armed Services web site. At that time, S. 1605 was picked and amended with the "agreement" struck by the members who were off grid. It was agreed by procedure that S. 1605 would pass the House and Senate quickly and it did in time for the holidays. I think that was about December 15, 2021. Since there were things being done concurrently, the Joint Explanatory Agreement appears to have errors by stating that S. Amdt 3867 is the referred to as the Senate "amendment" for legislative history purposes. However, in reality, the S. Rpt. that accompanied S. 2792 was used together with the report that accompanied H. R. 4350 to explain the legislative history. When you look at the individual sections of P. L. 117 - 81 in the left coumn and the legislative history in the right column you will see that S. 2792 and its report is referred to as the Senate Amendment--not S. Amdt 3867. In the end S. 1605--however it was decided to use it as the vehicle for the NDAA--passed the Senate and the House and was signed at the White House to becaome P. L. 117 - 81, the NDAA for FY 2022 . I thought about what part of the legislate history I would use if I argued a point. Since S. 2792 and its report never passed the Senate, I wouldn't use that. I would stick to what is referred to as the "agreement" and stop there. National Defense Authorization Act for Fiscal Year 2022.
  18. “Men must turn square corners when they deal with the Government.” Rock Island A. & L.R. Co. v. United States, 254 U.S. 141, 143 (1920) (Holmes, J.). In this case, the Court is presented with whether Lodge Construction, Inc. (“Lodge”) fraudulently submitted cost claims to the United States." "This case should serve as a cautionary tale to government contractors." Quotes are from the opinion. Lodge Construction, Inc., No. 13-499; 13-800, January 10, 2022
  19. S. 1605, The NDAA Act for FY 2022. I looked at Congress.gov and found that it is still referring users to an outdated bill as the NDAA Act for FY 2022. In fact, the outdated bill is the most viewed by users. As of 12/23/21, S 1605, The NDAA for FY 2022 is now at the White House ready for signing. When you look at S. 1605, it does not look like what it is because of the way it was passed in Congress. It will be signed into law within the next several days. -------------------------- PS: I'm beginning to do the Wifcon analysis now and will be done by New Years Day. Read my past several posts if you are wondering what is current.
  20. Apparently, the House and Senate Armed Services Committee members (and their staffs) realized they would be unable to complete consideration of the 2 House and Senate versions of the NDAA Act of 2022, hold a conference to iron out difference between the 2 bills, and agree on the conference report. They had less than a month to do that before they left for the calendar year. Instead, some members of the 2 Armed Services Committees and their staffs negotiated the differences between the 2 bills and reached agreement on what the NDAA would look like. Just think of it as a "truce." In one year with a similar situation, a document was written to explain what the committee members agreed to in their truce. That document was called a "Joint Explanatory Statement" Once again the Armed Services members used the JOINT EXPLANATORY STATEMENT TO ACCOMPANY THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2022. Now the explanatory document was completed on December 5, 2021 before the House and Senate even considered a bill on which to vote. To do it, they found a bill to amend with a substitute, in this case the NDAA for 2022. Agreement had to be reached not to amend the new NDAA as it floated through both houses. The selected bill was S. 1605, to designate the National Pulse Memorial located at 1912 South Orange Avenue in Orlando, Florida, and for other purposes. That explains the S. 1605 bill number. Both Houses agreed to the NDAA for 2022 as explained in my earlier post and the effective legislative history is the Joint Explanatory Statement. I found a nice explanation of this process in an earlier effort and I wil post it later if I find it again. I assume that the White House has agreed to all of this to make the actual signing of the NDAA of 2022 a Public Law, without a veto, soon
  21. To get the NDAA approved quickly, S. 1605 was used as a vehicle. S. 1605 was a bill to designate the National Pulse Memorial located at 1912 South Orange Avenue in Orlando, Florida, and for other purposes For our purpose, it is the National Pulse Memorial bill. On December 7, 2021, the National Pulse Memorial bill was considered and amended by the House with the National Defense Authorization Act for Fiscal Year 2022 as a substitute. S. 1605 was passed on December 7, 2021. On December 15, 2021, S. 1605 passed the Senate without amendment. Since the House and the Senate both approved S. 1605 without any disagreement there will not be a conference report. I expect an explanation for the various provisions to come soon.
  22. This week, I noticed that GAO had published its FY 2021 annual report on its bid protests. So, I planned to update Wifcon's information. Then I realized, Wifcon's data had 2 years missing--2020 and 2006. I updated those last night. Just now, I found a few formatting issue I need to correct. However, we are talking about 25 years of information-- 3 decades. The fiscal year numbers at the top of each column are links to GAO's annual reports so you can read them, if you want. FY 2002 through 1997 do not have links. Back then, GAO's annual reports provided limited data that did not include annual statistics. I remember contacting GAO's Bid Protest Unit in the late 1990s to obtain the early year's statistics from one of the attorneys. In short, to my knowledge, there is no other place you can find 25 years of data. I've tried to include footnotes explaining key points about the statistics. Here is a warning. Do not look at one year's data, look for trends. Another thing. GAO counts protests as B-numbers. As a result, a published decision may include several B-numbers. Footnote 1 explains that. Here you go: Comptroller General Bid Protest Statistics - 25 Years of Fiscal Year Data. There are 2 pages of data: 1 for 2021 through 2010 and another from 2009 to 1997. To get to the 2009 through 1997 data you need to click Go To Statistics for FYs 2006 through 1997.
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