Vern Edwards

So be it. I'm glad you got that off your chest, because you seem stressed. I'm also glad that everyone reading this thread can assess my argument and proposal in light of your rants. I'm glad you took up the cudgel. Strikeout added. A movement machine, yes, but not unassailable. My proposal would allow an unsuccessful offeror to "assail" an agency via a claim rather than a protest. A claim need not be costly, and claims would give claimants a chance to negotiate an acceptable resolution with an agency and a chance to recover some costs if the agency did not act property, which most protesters cannot do via bid protest. And a well-written claim might persuade an agency to take corrective action to avoid criticism from IG's and Congress for having to pay costs. You don't seem very sophisticated about the protest system. Protesters succeed at the GAO in only about 20 percent of cases that go the distance, and then all the protester usually gets is another chance to spend more B&P money. Winning a protest does not mean that the protester will get the contract. An agency that loses a protest might take corrective action to clean up its act and then choose the same company it chose the first time. And protests to the GAO are not cheap. The chances of winning a protest without professional legal representation are not good. The protest system has been very costly to businesses who want to sell to the government, even winners, because agencies' fears of protests have given rise to a very costly and time-consuming source selection process. And a century of protests has not done much if anything to improve the way agencies conduct source selections. They're as bad as they've ever been. The protest system really has got to go, but, trust me, it won't. The politicians will never get rid of it.

I don't know to whom ("you") that comment was addressed or whether it concerned my article or someone's comment about it. But since this thread was about my the article I will assume that AllGray has addressed me, and I respond by saying that AllGray may not have read it carefully, or thought it through. @AllGray As explained in the article, I would replace the current protest system with a claims/disputes system. Agency source selection decisions would still be subject to investigation, and agencies would also be subject to having to provide monetary compensation for breach of implied contract. Thus, under that system, incompetence would still be subject to discovery, assessment, discipline, and correction. Criminality would be subject to discovery and prosecution. Grossly improper contract awards could even be terminated. That is not a scheme to "hide" anything or prevent investigation into how a decision was made.

@dsmith101abn Thanks!

The best way for you to get an answer to your question, which is complicated, is to go to the GAO publication, Principles of Federal Appropriations Law (known popularly as the "Red Book") and read Chapter 5, Availability of Appropriations: Time, Section B, The Bona Fide Needs Rule. You must read carefully and thoughtfully. The Red Book is available for free on line. It's worth your time.

FAR Subpart 23.1 , Sustainable Products and Services FAR 23.104, Policy, paragraph (a): On a scale of 0 to 5: 0 = none at all, 1 = slight, 2 = low, 3 = moderate, 4 = high, 5 = very high what is that policy's administrative hassle value? Should small businesses be exempt?

The rule is really quite simple, except for the question of "common control". In that regard, see my citation of Government Contract Costs & Pricing in my first post for the source of the following quote: We haven't heard back from the OP, so, presumably, inquiry resolved.

Have you read FAR 31.205-36, Rental Costs, paragraph (b)(3)? Also, see Government Contract Costs and Pricing, § 43:4, Case law interpretation—Leases between organizations under common control.

I spoke with Bob this morning. He has been very ill and spent a few days in the hospital. He's back home now and resting. Keep him in your thoughts.

Please clarify. If the task orders are FFP, then what does the program office want to know? Does it want the contractor to report their actual costs as opposed the amount invoiced? If so, does it want that information in order to judge the reasonableness of the contractor's prices?

That's from the OP's (WifWaf's) second post, and it's the key to understanding what this thread was supposed to be about. The attention to "immortality" and Davis-Bacon has been misleading. FAR 1.602-1(b): Is that possible? The theoretical answer is yes. But as a practical matter the answer is no. There are too many rules (laws, executive orders, regulations, and other applicable procedures). The worst rules (in number and complexity) are in FAR Subchapter D, Socioeconomic Programs, which encompasses FAR Parts 19 through 26. Do you remember my post about the Army RFQ for mowing less than two acres of lawn 18 times a year and doing other grounds maintenance? It was a simplified acquisition for commercial services set aside for small businesses. The RFQ was 90 pages long and incorporated 105 solicitation provisions and contract clauses, and a 525-page Army regulation for grounds maintenance as the quality standard. I wrote a critical Nash & Cibinic Report article about that, which Bob published. I just completed an "audit" of that RFQ and concluded that when you print the full text of all the provisions and clauses, the Army regulation, and the full text of the Code of Federal Regulations rules incorporated into the contract by just two clauses𑁋 52.222-41 and 52.222-26𑁋the contract is more than 1,500 pages in length. Just for mowing, trimming, edging, and pruning less than two acres 18 times per year, for one year and four one-year options. If all provisions and clauses were considered the contract would be much lengthier. Although Joel has kept us focused on Davis-Bacon, it is one of the least administratively burdensome of the socioeconomic programs. FAR 52.222-6, Construction Wage Rate Requirements, is much less complex and demanding than FAR 52.222-41, Service Contract Labor Standards. FAR 52.223-20, Aerosols, is a very short clause, slightly more than ½ pate in length. But paragraph (c) states: 40 CFR part 82, subpart G, prints out to 100 pages at ecfr.gov. I call such pages "hidden" contract pages. According to Justice Gorsuch in his new book, the 2021 Code of Federal Regulations spanned 200 volumes and 188,000 pages. Thousands of those pages are incorporated into government contracts by reference in provisions and clauses. Most COs, and overwhelmingly most contractors, are unaware of this and are not skilled in finding, reading, and interpreting those pages. And the socioeconomic rules are the most complex and demanding of all. THAT is the problem with complying with FAR 1.602-1(b). It's not how long a given rule is in place, it's how many rules we have. The government is choking its procurement system to death. Think about it.

We're a democratic republic, and that's how it's supposed to work. We can change things only through rational appeal and persuasion (seasoned with political contributions). But we can argue that (1) the coming years will confront us with serious challenges both foreign and domestic, (2) that the government depends on the procurement system to supply it with the goods and services that it will need to meet those challenges, and (3) that policies which render the procurement system less efficient, timely, and effective should be reviewed, reconsidered, and revised, suspended, or terminated as appropriate. We can then present documented facts in support or our assertions. We can also argue that too much law, policy, and regulation undermines support, and even compliance, with all. (Or so says Justice Gorsuch in his new book.)

@joel hoffman That's wrong. There is political common sense at work, and it is more potent than bureaucratic common sense. Much more.

@joel hoffman and other interested persons: See the September 26, 1980 memo from GAO to OFPP, subject: Should Small Purchases Be Exempt from Complying with Social and Economic Program Requirements. Follow this link: https://gao.justia.com/general-services-administration/1980/9/should-small-purchases-be-exempt-from-complying-with-social-and-economic-program-requirements-psad-80-77/PSAD-80-77-full-report.pdf I think you'll find it interesting, especially the discussion of raising applicability of Davis-Bacon from $2,000 to $10,000. Note the discussion of arguments pro and con. I address the memo in my N&CR article.

@joel hoffman I did ask for specifics. Sorry. You'll like the article I just signed off on for N&CR. Bob will post it at Wifcon. Bye.

@joel hoffman The Davis-Bacon and Service Contract Act dollar thresholds are not going to change in the foreseeable future. You don't have an argument that will convince Congress and the President to change them. I understand what you're saying, and I agree with you, but it doesn't matter. They don't care what we think. You know that. Why go on? The only way you could increase those thresholds or repeal those laws would be if you had an overwhelming Republican majority in both houses of Congress and a Republican president. Do you see any signs of that happening any time soon? Even then it would be no sure thing. The socioeconomic programs are political rules, and only politics can change them. I am not going to discuss this further. All that's going on here now is whining. I'm have written something somewhat along these lines, only taking a broader approach, for an upcoming issue of The Nash & Cibninc Report. That won't matter, either, but at least I get paid for it. Signing off the thread.

"What is truth? said jesting Pilate, and would not stay for an answer."

@WifWaf What are you trying to prove about Davis-Bacon? What is your assertion? What are your facts?

"Unnecessary" depends on your point of view. But please provide a specific example of the "wasteful complexity" of Davis-Bacon. What's so hard about paying a specified minimum wage and maintaining payroll records? What is complex and what is the waste? I'm not disagreeing with you. I'm just asking for specifics that will explain your point of view. D-B seems like more of a problem for big contracts than for small ones. Remember, I once ran the construction shop for the Bonneville Power Administration.

Are those supposed to be arguments that might persuade Congress to repeal or revise a law that is actually or symbolically important to a politically powerful constituency like labor? Is that all you've got? Bureaucratic inconvenience and confusion? Surely, Joel, you can do better. (I'm not sure about WifWaf.) Why don't you stop posting and think about it? How is the present dollar threshold for Davis-Bacon bad for the system and the country? What's your argument? 😂

I think the SCA and D-B thresholds should be raised, but it's a political question, not an administrative one, and it (arguably) affects the interests and well-being of workers, who outrank bureaucrats, now and in the foreseeable future.

Thanks for the info, Joel.

@joel hoffman That sounds interessting. Can you cite that BCA case? Was it the GSBCA? You have to be careful about kicking a person off an evaluation board and how you do it. Such an action might be considered an adverse (personnel) action under OPM rules. See the OPM Glossary of Terms Used in Processing Personnel Actions:

@REA'n Maker To say that I am "certainly correct" in a "pedantic" way is laughable. And business school professors are never wrong. Right? (I'm sure that's axiomatic in business schools.) If you want to complain about the persistence of laws and regulations, try making an intelligent analysis instead of schoolyard complaints. And in doing so try not to say things like "Regulations are enacted through FAR clauses... " Did you learn that at the GWU Graduate School of Business? Immortal means "Not subject to death." American Heritage Dictionary, 5th ed. A "tendency to persist" and being long-lived are not the same as immortal. In this country, laws can be, and are, amended or repealed, and regulations can be, and are, revised and withdrawn. The gold standard for U.S. currency (1834) was abandoned in 1971. The Armed Services Procurement Regulation (1949) was canceled in 1984. The Service Contract Act of 1965 has been amended several times, as has the Davis Bacon Act. Executive orders, like the Chicken Tax, can be, and have been, revised or withdrawn. OMB Circular A-76 (1966) was revised many times and is now under a Congressional "moratorium". The graveyard of laws, regulations, and policies is huge. Remember when GSBCA had bid protest authority? Case law can be overturned, stare decisis notwithstanding, as many have recently learned to their shock. Roe v. Wade (1973) was long-lived. Chevron (1984) was long-lived, and its death is likely to produce many shocks. More long-standing case law is likely to be be overturned in the next session of the current Supreme Court. As long as there is a chance for change there is hope (and fear). Statutory repeal and deregulation have happened and will happen again.

Laws and regulations are enacted, published, revised, and repealed the time. They are not "immortal" and it's stupid to say so. Not even the Constitution is immortal. Are you done?

@WifWaf Here's your quote of Musk: Six sentences. From them I extracted the following statements asserted to be facts: America's core principles include promoting freedom to operate. The hand of government gets heavier every year. The laws and regulations accumulate every year. The laws and regulations are immortal. I take the following to be a reasonable interpretation of 1. Meaning, the least amount of government intervention possible. The following is purely rhetorical prediction, not a statement of fact: If you don't actively reduce the number of laws and regulations, everything will be illegal. I say that 1, 2, and 3 are true. For the truth of 1, see the Declaration of Independence, the Constitution, and any number of Supreme Court decisions. 2 and 3 say essentially the same thing, and 3 is demonstrably true. See Gorsuch's book for the facts. I say that 4 is demonstrably false.