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Posts posted by Junius

  1. I think the judge probably overstepped his authority here in the name of government efficiency.  While I generally understand and admire creative attempts at improving Government efficiency, fundamentally broken processes should not be remedied by the bureaucracy or the judiciary.  The responsibility of the bureaucracy, as part of the executive branch, is to implement and follow the rules on the books.  The judiciary interprets those rules.  And although this is a principle largely ignored today, it is not the proper place for either branch to decide what laws they will follow and which they will ignore in the name of efficiency or good, practical policy.  This is Congress's responsibility to fix.  We have an incredibly outdated acquisition philosophy and process that Congress can't help itself but constantly tinker with, leading to what is now a lexicon of incomprehensible regulation.  Rather than greenlighting end-runs around the law, we need to fix the law.  

    And yes, there has been much discussion regarding the lack of professionalism within the bureaucracy.  I don't disagree with that general sentiment, but keep in mind that there are an awful lot of very smart people in the Government, and, by and large, the Government is reasonably decent at allocating those resources where they are most needed.  What I'm saying here is that the VA was putting forth the best of the best to solve this problem, and they have still failed.  This is a problem much bigger than the VA itself, and it's going to take a lot more change other than making it easier to fire some SES's.  

    Representative republics weren't created to be efficient.

  2. 15 hours ago, Vern Edwards said:

    So talk. Answer my question. Think you can sell the concept to Congress and a president?


    Right now I don't think anything that can be perceived as beneficial to federal employees can be sold to Congress and the President.  Some agencies (Education and Agriculture) pursued President Obama's Telework Enhancement Act by significantly expanding telework and subsequently reducing office space.  Now these agencies are significantly rolling back these policies.  Organizations don't have enough office space and have to scramble to either re-negotiate or find new leases. 

  3. You haven't specified what you read in the FAR before, so it's hard for me to suggest where you might locate that information.  If you're talking, generally, about a description of what a service contract is, I suggest starting at the "Service contract" definition in FAR 37.101.  


  4. 28 minutes ago, Tellmewhy said:

    In line with this conversation I have another question.   If you look at www.acquisition.gov and review the matrix it shows that 52.212-5 incorporate by reference (IBR) yes.

    If you look at http://farsite.hill.af.mil/vmfara.htm  matrix it states NO for IBR for 52.212-5. We are being told that the farsite will no longer be updated and to follow www.acquisition.gov .

    I agree with ContractingPeoplesHatred that provisions and clauses should be incorporated to the maximum practical extent. How would you incorporate 52.212-5 by reference?

    I would follow the procedures at FAR 52.104(b) and/or 52.104(d).  I would then include either one or both of FAR 52.252-1 and FAR 52.252-2 depending on if I'm incorporating provisions and/or clauses.

  5. On 3/13/2018 at 8:54 AM, Vern Edwards said:

    Oh. Sorry, Junius.

    No problem.  Your point is valid though; for the most part, based on my (limited) experience, senior leadership seems to really appreciate the work their employees do.  I just wish some of that appreciation could transfer to the general public.  The news media is more interested in highlighting failures than successes, but that's only natural.

  6. 3 hours ago, PepeTheFrog said:

    The federal employee workforce has turned into a work-for-welfare program, instead of a respectable civil service.

    Bring back the federal civil service exam and find a way to make federal employees at will employees (make it easy to fire them).

    Magically, intelligence and competency will increase.

    For me, probably the single worst thing about working for the federal government is the persistent perception within the public forum that, rather than being an asset to my country, I am instead a drain on it.  There is no distinction between a real professional and a loafer in that perception.  There is no distinction in pay, either.  

  7. 2 hours ago, Vern Edwards said:

    Or is it characteristic of all people who work in today's employment market? Anecdotally, I have an uncle now in his 80s who was hired by Rockwell as an electrical engineer right after his college graduation, and he stayed with that corporation until retirement 30 years later. During most of that time he worked on the Space Shuttle program. That kind of employment record simply is not going to happen very often if at all in today's global economy.

    Whose fault is that?

    I'd be interested to hear people's thoughts on that.  When I was getting my MBA ten years ago, the thought process was that the primary responsibility of a business is shareholder return.  Has that always been the case?

  8. On 2/15/2018 at 3:44 PM, Don Mansfield said:

    Would that be reasonable?

    The offeror provided information that indicated that most of their staff is composed of employees with a relatively low retention rate. I think it's reasonable for the agency to consider that a risk regardless of whether or not the concern is employees changing jobs or retiring.  

    This is just my viewpoint.  The Merriam-Webster defintion of ageism is: "prejudice or discrimination against a particular age-group and especially the elderly."  If ageism is a particular concern for the elderly, then I think it's possible what may be viewed as reasonable on the basis of a younger age may not be considered reasonable on the basis of an older age.  In addition, I think there tends to be a bias with respect to attributing certain characteristics to millennials as if those characteristics are unique and/or inherent to millennials.  For instance, is higher turnover a characteristic specific to their generation, or is it a characteristic of *any* generation that comprises the youngest portion of the workforce?  Anecdotally, I have a millennial co-worker who entered the workforce at age 24 and, by age 28, was already on her third job.  In that four year period she was caught up in two corporate mergers resulting in layoffs.

  9. Reasonable exercise of agency discretion.  For whatever reason the protester's proposal writer saw fit to include statistical information on an arbitrary and essentially meaningless demographic.  I don't see anything in the evaluation criteria that would have required them to provide information organized in that manner.  That said, I think the GAO may have viewed the agency's decision differently if the proposal/evaluation were based on retention and replacement of aging baby boomers instead of millennials.

  10. Based on my experience, contractors commonly assume that they should automatically receive a rating above Satisfactory because they've exceeded the performance standards in the contract.  The problem with this is that the justification for Very Good or Exceptional ratings require three things -- see Table 42-1 in the FAR:

    1.  Identification of a significant event (or multiple events)

    2. Statement of how that event was a benefit to the Government

    3. No identified significant weaknesses

    According to this standard under the Schedule rating area, for instance, a deliverable you provide X days early may not merit an above Satisfactory rating if the deliverable was not a significant event or, if it was a significant event, did not provide a benefit to the Government.  

    If you disagree with the Assessing Official's ratings, I don't think it's effective to assume that the Assessing Official just plain got it wrong because chances are they won't agree with you and neither will the Reviewing Official.  It's more effective to assert that either the information included in the narrative was not factual (if that is indeed the case) or there was supplementary information not considered.  In either of those cases, identify the significant event and state its benefit to the Government. 

  11. On Netflix I’ve been watching a show related to people allegedly providing false confessions.  Sometimes the false confessions are elicited because the subject has been so psychologically broken down that they begin to believe they actually committed the crime.  I think I’m having one of these moments as it relates to Government contracting.

    It’s about provisions and clauses.  My (admittedly journeyman) understanding of the FAR is that apparently unambiguous prescriptions that a provision or clause applies to “all solicitations and contracts” is frustrated by FAR 12.301(d) when acquiring commercial items.  For instance, I do not include FAR 52.243-1 (Alt III) in my solicitation for a fixed-price requirement for professional services because the service is commercial and “Changes” are already described in FAR 52.212-4(c), which is actually required in all commercial solicitations and contracts.  When the GS-14 Procurement Analyst returns my solicitation with a recommendation that I include FAR 52.243-1 (Alt III) in my solicitation, it’s a relatively simple task for me to explain my position once I have finished lamenting the fact that I am not a GS-14 Procurement Analyst.  I no longer think your average Frog (as Pepe would say) completely understands the meaning of the word “Notwithstanding.”

    Where it becomes trickier is with a provision or clause that does not necessarily have an “equivalent” commercial provision or clause.  Now, I understand this is a DFARS clause, but take 252.225-7048, Export-Controlled Items, for example.  My understanding of DFARS Case 2011-D056 is that DFARS 212.301(f) was implemented in its current form to represent a complete list of the DFARS provisions and clauses that are applicable to the acquisition of commercial items.  In other words, if a DFARS provision or clause is not listed in DFARS 212.301(f), it is not applicable to the acquisition of commercial items.

    Where I begin to question my sanity is whenever I go to award my commercial, firm-fixed-price services contract.  I send my contract award to be validated against the Procurement Data Standard (PDS) and, unfortunately, I receive an error that I have failed to include DFARS 252.225-7048 in my contract award.  According to its prescription, 252.225-7048 is required in “all solicitations and contracts” which the PDS error message also helpfully reminds me.  However, it’s not listed as applicable to the acquisition of commercial items in DFARS 212.301(f), nor does it include handy-dandy language in the prescription specifically referencing applicability to FAR part 12 as do most DFARS provisions and clauses listed in DFARS 212.301(f).  Therefore, I interpret that this clause does not, in fact, apply to my contract.  If I fail to include it, however, I will inevitably end up on a naughty list with a command from above to modify my contract to include the clause, and shame on me for willfully ignoring the PDS.

    As I understand it, PDS is implemented by DPAP.  Clearly, I think DPAP has it wrong on this one as well as with DFARS 252.203-7002, where I received the same error.  However, I’m so broken down by the unending tsunami of data calls, reports, reviews, requests, templates, instructions, validations, and audits that I’m not sure I can think anymore.  But maybe that’s the goal.

    Have I lost it? Is my approach to provisions and clauses relating to the acquisition of commercial items sound? J

  12. Is it just me, or is this scandal getting relatively little fanfare given its overall size and how many high-ranking civilians/military officers were ensnared by it?  I've talked to typically informed folks outside of the government who are apparently completely unaware of this scandal, yet they were able to tell me all about the GSA conference scandal from a few years back.

  13. Let me be more specific with my question.  I’ll preface with a statement:

    Logically, if a small business concern truly provides best value for a specific acquisition, they will receive the contract award regardless of whether or not the acquisition is set-aside for small business concerns.  Therefore, by setting aside acquisitions for small business, the Government, at best, only matches the value that it would receive under full and open competition, but there’s also the chance that the Government receives sub-optimal value.

    What evidence do we have that small business preference programs provide enough surplus benefit to overcome this issue,  or are taxpayers subsidizing small business concerns at the expense of the economy as a whole?

    I am specifically interested to know if there is a study that addresses this question or something similar to it.  I’m not interested in *any* study.  The relative tax burden of small businesses and corporations don’t tell me whether or not taxpayers, as a whole, derive a net-positive economic benefit from FAR 19.  I want data, not rhetoric.

  14. 15 hours ago, ItDepends3 said:

    I'm told that when software maintenance include bug-fixes, software updates, etc. then each push of that revised software is in essence an new contract and therefore requires a Brand Name J&A. 

    Step back and think about what you’re actually purchasing for a moment.  If this is a typical commercial software maintenance requirement, you’re not actually purchasing individual bug fixes, updates, etc directly.  What you’re actually purchasing is a subscription for a fixed period of time (typically one year) that provides access to the bug fixes, updates,  etc.  The contractor’s priced deliverable would be the subscription itself, usually priced per software license/user.  Again, this is assuming we’re talking about a typical commercial software maintenance requirement.

    What you’ve been told makes no sense.  You can have multiple deliverables under a single contract, all of which could be covered by a single brand name J&A.  Even if you had multiple contracts, you could potentially write a class J&A. 

    What would make sense to me is if what you were told relates specifically to the renewal of software maintenance subscriptions.  If you don’t include options on your software maintenance contract for future annual renewals, you’ll need to award a new contract each year to renew the subscription.  Each iteration of the contract would require its own brand name J&A.

  15. Basic question:  If a contractor employee, based in the United States, goes TDY to an overseas location during the course of performance of a DoD service contract, does the Defense Base Act  (DBA) apply?

    Background: Suppose you have a DoD service contract where performance occurs within the United States, with the exception of an annual TDY that requires a contractor employee to travel overseas.  The employee (a U.S. citizen) lives in the United States and, aside from this TDY, also works in the United States.  The DBA clause is not included in the contract.  Assume that, since the employee is a U.S. citizen, there is no applicable waiver from the Department of Labor.

    FAR 28.305(b) specifies, “The Defense Base Act (42 U.S.C. 1651, et seq.) extends the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. 901) to various classes of employees working outside the United States…” 

    In determining whether or not DBA applies, FAR 28.305(c) simply refers to 42 U.S.C. 1651.  The interpretation of 42 U.S.C. 1651 is very broad.  For instance, DPAP released a policy memo in 2003 titled “Inclusion of Defense Base Act Clause in DoD Overseas Contracts” which states, in part, “the Defense Base Act clause at FAR 52.228-3 should be included in all DoD service contracts to be performed (either entirely or in part) outside of the United States…”

    So, based on the above, I make the assumption that even a single TDY overseas could be considered performing, in part, a DoD service contract outside of the United States.  Therefore, the DBA applies and the clause needs to be included in the contract.  This would have pretty enormous implications because this situation is pretty common, and the DBA clause is rarely included (at least in my agency) in contracts unless contractor employees are actually living and working overseas in places like Afghanistan/Iraq/Pakistan.

    There’s really a dearth of information out there on the DBA specifically as it relates to its applicability in Gov’t contracting.  My relatively fruitless searches are crowded out by a mass of results originating from the DBA industry, which apparently must be pretty lucrative.

  16. So I wonder what happens if the priest receives that 11th emergency call; does he say it's not in his contract, or does he answer the call but later submit a claim to the Government?

    I also wonder how typical it is for a priest (or any individual, really) to be hired in the private sector on a lowest price technically acceptable basis. How often are individuals hired because they meet the minimum qualifications and are willing to accept the lowest salary?

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