Vern Edwards

@DE13151719If I were a contractor and you came to me as a subcontractor seeking a higher "escalation rate" for your subcontract option year, and if you offered me the DOD "Green Book" economy wide rate from Table 5-1, I would laugh you out of the room. What is your subcontract for? Labor? What kind of labor? In what region? A product? What kind of product? What kind of materials? What is the source of cost escalation? The "Green Book" economy wide rate is too gross for subcontract pricing. There are many escalation rates for various parts of the economy. Choose an appropriate one. As a DOD contracting officer I never had a contractor seek an adjustment based on the DOD "Green Book" economy wide rate. I did a sanity check with a colleague at the Defense Acquisition University and he laughed out loud at your notion.

"Would seem to be"? Nonsense. I could make a respectable argument that it's within-scope in my sleep. In fact, ji20874 just made a darn good one. If the contractor could show that the change caused an increase or decrease in the cost or time of performance, then of course the contractor should get an equitable adjustment. So what?

Generally, so do I. But a change via supplemental agreement can take time, and if you believe that the vaccine mandate will save lives, then a change order followed by a definitizing supplemental agreement makes sense. Of course, it's a moot point in light of the injunctions, at least for now.

Project labor agreements (PLAs) are discussed in FAR 22.5. Here's a link to a 2012 Congressional Research Service report, which provides some of the history of project labor agreements, beginning with President Obama's executive order. https://www.everycrsreport.com/files/20120628_R41310_731846eb1c5bc373a7ea40ebd566f72ded8a8771.pdf Before the Obama EO, President Bush wrote an EO about them that ended up in court. Here's the 2002 decision by the DC Circuit Court of Appeals. https://law.resource.org/pub/us/case/reporter/F3/295/295.F3d.28.01-5436.html

So, tell us the history.

In service contracts, however, there is a possible way around that fact. Instead of adding a "clause" to the contract, make the vaccine mandate a "task" and add it to the statement of work via a change order pursuant to the Changes clause. I think it would be easy to make a case that the change is within scope. Whether you could convince a court or a board of contract appeals is a question.

@formerfedInteresting. I consider OTA's to be reflective of an unfortunate pattern and a signal failure of the system. We get laws and regulations ("rules") and bureaucracy in order to address what someone considers to be a problem. Consider the Truth in Negotiations Act (1962) and the Competition in Contracting Act (1984). After a while the rules become too complex and burdensome for the system and poorly trained people to bear, and so we get "innovation" and "reform"—exceptions to ordinary practice, like adequate price competition, award without discussions, commercial items, and OTAs. Reform implementation requires more rules and more bureaucracy. Poorly trained personnel and misguided "innovators" misuse and abuse the exceptions, and so we get yet more rules to reform the use of the exceptions. Just review the historical development of FAR 16.505(b), Orders under multiple award contracts. Go back and look at the original rules about "fair opportunity to be considered" written in 1997 and compare them to what they're like today. And so it goes. At a congressional hearing about the use of OTAs, a member of congress asked a DOD official about how OTAs were working. He said they were working fine, but that they were just an exception to standard practice and what we should really do is fix standard practice.

Bloomberg Law has reported that a federal district court in Louisiana has issued yet another (third) preliminary injunction against the vaccine mandate. It applies to Lousiana, Mississippi, and Indiana. https://www.constangy.com/assets/htmldocuments/Vax.Contractors.Louisiana v. Biden 12.16.21.pdf

The link that the OP has provided is to "NATIONAL DEFENSE BUDGET ESTIMATES FOR FY 2022." I have no idea what that has to do with an escalation rate for a subcontract for god knows what work.

There is no FAR contract clause that gives a contracting officer the authority to unilaterally add a new clause to a contract.

From whom do you want help? Call the BLS! Or do you just need help with arithmetic?

As many of you already know, on Nov. 18, 2021, President Biden signed Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts, 86 FR 66397. It requires contractors awarded successor contracts to existing service contracts, and their subcontractors, to offer the predecessor contractor's and subcontractor's employees right of first refusal to jobs under the new contract, with certain exceptions. What you may not know is the history of the "nondisplacement" policy. Five presidents have been involved. President Clinton The policy was first set by President Clinton in Executive Order 12933, Nondisplacement of Qualified Workers under Certain Contracts, Oct. 20, 1994, 59 FR 53559. The EO was implemented by the DOL and then by the FAR Council in Federal Acquisition Circular (FAC) 97-01 (an interim rule), 62 FR 44823, Aug. 22, 1997; FAC 97-11 (final rule), 64 FR 10545, March 4, 1999; and FAC 97-15 (technical amendment), 64 FR 72450, Dec. 27, 1999. The three FACs created FAR Subpart 22.12, Nondisplacement of Qualified Workers Under Certain Contracts, and FAR clause 52.222-50, Nondisplacement of Qualified Workers, adding about five and one-half pages to the FAR. The Clinton policy applied only to contracts for public building maintenance services. President Bush II On Feb. 17, 2001, within one month of taking office, President Bush revoked the Clinton nondisplacement policy. Executive Order 13204, Revocation of Executive Order on Nondisplacement of Qualified Workers Under Certain Contracts, 66 FR 11228. DOL deleted its regulations, and FAC 97-26 (interim rule), 66 FR 27406, May 6, 2001, finalized by FAC 2001-04, 67 FR 6116, Feb. 8, 2002, deleted FAR Subpart 22.12 and FAC clause 52.222-50. COs were told not to enforce the clause in any contracts that included it. President Obama On Jan. 30, 2009, the tenth day of his first administration, President Obama issued Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts, 74 FR 6103. However, he greatly expanded the policy's coverage to almost all service contracts value at more than the simplified acquisition threshold. After DOL wrote new regulations the FAR councils issued FAC 2005-64, 77 FR 75766, Dec. 21, 2012, resurrecting FAR Subpart 22.12 and the implementing contract clause. The coverage was more extensive than it had been for the Clinton policy. President Trump It took him a while to get to it, but on Oct. 31, 2019, President Trump revoked the Obama policy by issuing Executive Order 13897, wittily (or wickedly) entitled, Improving Federal Contract Operations by Revoking Executive Order 13495, (go ahead, you have to chuckle), 84 FR 59709. DOL deleted its regulations, and FAC 2020-06, 85 FR 27087, May 6, 2020, deleted FAR Subpart 22.12 and its implementing clause. President Biden But Subpart 22.12 and the clause will stay in the grave only until the Biden order is implemented. Biden gave the Department of Labor (DOL) 180 days to publish final implementing regulations, and gave the FAR Council 60 days thereafter to implement them in the FAR. How long the policy will live seems likely to depend on the outcome of the 2024 presidential election. And so it goes. You have to laugh. Our government is but mad, north-northwest. Jim Nagle, author of The History of Government Contracting, 2d ed., and co-author of Administration of Government Contracts, 5th ed., has written an article about this for the next issue of The Nash & Cibinic Report.

It is so! It is so!

More fun facts. No. 1. As of this morning, December 15, 2021, and FAC 2022-01, the FAR, in its pdf 8-½ x 11 inch format, is now 2,030 pages in length. A milestone. Formerly it was 1,992 pages. More pages are coming. As of 12-10-2021 there are 14 pages of open FAR cases. Among other things, FAR Subpart 22.12, Nondisplacement of Qualified Workers Under Certain Services Contracts, will return. It was based on a policy established by President Clinton, revoked by President Bush, reinstated and expanded upon by President Obama, revoked by President Trump, and has now been ordered reinstated by President Biden (E.O. 14055, Nov. 18, 2021), who has further expanded upon it. It will take a while for the next reinstatement, since the FAR councils have to wait for the Department of Labor to write its own implementing regulations. So far, President Biden has issued 73 executive orders, several of which affect acquisition policy and procedure. "Reform" and "streamlining" have been dismal failures. No. 2. FAR Parts 1 -51 now contain 994 official definitions. (The ones in Part 52 duplicate definitions in the other parts.) I hope that all of you who read this realize that the above are signs of insanity on the part of our elected and appointed officials. A system designed to ensure that the right supplies and services reach agencies at the right time and the right place in the right quantity and quality and at fair and reasonable prices is now so unwieldy that it borders on total breakdown. It cannot meet the needs of the citizens. In the not-so-far-off future, PALT will be measured in decades. Do you trust our government to detect and destroy the killer asteroid before it too late?

See NASA FAR Supplement 1817.70, Phased Acquisition, and 1852.217-71, Phased acquisition using down-selection procedures.

@LeighHarThe following is from your opening post: So the contract includes a "budget", and at some point you submitted "a more detailed budget." What you have invoiced exceeds the "budget". That appears to be the source of the issue. I don't know what the contract says, so I cannot advise you based on the information that you have provided, and I doubt that more information via this forum would make it any easier. I suggest that you sit down with the contracting officer and ask on what specific basis in the contract they have rejected your invoice. It is essential that you fully understand the basis for their rejection in no uncertain terms. Until you do, and can explain it clearly to others, going back and forth about it in this forum is likely to be fruitless. This forum can be helpful, but it is not an alternative to professional advice from someone who has read the contract and knows ALL of the potentially pertinent facts. I wish you well.

FAR Part 43 does not apply to contractual relations between a prime contractor and its subcontractors, unless the parties incorporated it into the subcontract. If not, then your rights and obligations are determined by the terms of your subcontract and applicable state law. Call a lawyer.

The author, a journalist for Bloomberg, tells an unsettling and upsetting story about business and government, and he names a lot of names. I want to take time to settle down and think it through before writing a review. All I will say now is that anyone who harbors idealistic notions about industry or government should read this book. If you work for the FAA you should read the chapter entitled, "The Forrest Gumps."

The people who have the most experience work for the Federal Emergency Management Agency (FEMA), within the Department of Homeland Security. I'm pretty sure that some of them relocate temporarily. Their website has posted the following notice: And see this: https://www.fema.gov/press-release/20211211/fema-responds-tornado-outbreaks They have two management assistance teams and others on the way to Kentucky. I'm sure it's difficult work under very difficult conditions.

I'm sorry, but the information provided about the requirement is too vague to be the basis for intelligent comment from me.

You have not provided enough information. Here are just a few questions: "Phased" suggests that you will progress from some beginning to some ending. Is that what you will be doing? Are you buying a service, such as R&D, or system development? If system development, will the acquisition involve production and delivery of prototypes, testing, and a production model? Will the phasing be competitive, as in a "down-select"? (Do you know what that is?) Will you have, say, three contractors in the first phase, two in the second, and take only one to the finish? Will the phases be contiguous with fiscal years or will they cross-fiscal years? How will the procurement be funded? Fully or incrementally? Do you envision using the same contract type in each phase or progressive risk reduction?

No clauses in the FAR that I can think of. However, there may be something in the agency's FAR supplement that's in the contract. FAR 52.216-7 would not support the interpretation that you have been given by the CO. If the contract is written in the Uniform Contract Format (see FAR 15.204), check Section G, "Contract administration data." Many agencies put payment instructions in there. Don't limit your review to just "clauses." They might have put something elsewhere. You never know. Check the statement of work. Sometimes agencies put such things in there. And ask the CO what in the contract supports what they've been telling you. Has the CO said that the amounts in excess of the budget are "unallowable" or just not payable at this time? Is the contract fully funded or incrementally funded? (See FAR Subpart 32.7) Does the contract include the clause at FAR 52.232-20 or 52.232-22?

I think that in matters of regulatory affairs official definitions are like the canary in the coal mine—they are indicators (but not measures) of policy activity and policy complexity, and such activity and complexity impact processes. In the official paperback volumes of the Code of Federal Regulations published in October 1984, FAR Part 2, Definitions of Words and Terms, contained 21 definitions and was only slightly more than two pages long. By 2000, FAR Part 2 was seven pages long and contained 58 definitions. In 2001, the FAR councils moved all definitions that applied to more than one FAR part to Part 2. FAC 97-22, January 10, 2001. By October 2002, the first paperback CFR volume after FAC 97-22 was 19 pages long and contained 183 definitions. By October 2020, the latest paperback CFR volume was 25 pages long and contained 250 definitions. Today, FAR Part 2, as it appears at acquisition.gov, contains 262 definitions. Those numbers indicate (but do not measure) the ever increasing complexity of the acquisition process over the course of time. References to FAR Part 2 have appeared in 268 board of contract appeals decisions, 212 Court of Federal Claims decisions, 71 federal district court decisions, 44 federal circuit courts of appeals decisions, one Supreme Court decision, 34 GAO decisions, and five state court decisions. References to FAR Part 2 have appeared in 328 law review and journal articles and 468 articles in legal newspapers and newsletters.

@LeighHarYour post is hard to respond to. I would need to see the contract in order to determine whether the CO has any contractual basis for rejecting your invoice. I acknowledge that what you have described seems inconsistent with the usual terms of a CPFF contract, but such contracts sometimes contain terms that justify the CO's course of action. If this is a serious problem for you, rather than just an annoyance or inconvenience, then your best course of action would be to seek the advice of attorney who specializes in government contracting.

Yes, I posted that when that's what I thought he might be asking about. Note that I said that I wasn't sure. Then he posted this: And then he and I communicated privately, I provided him with some information about the Mortenson decision and commentary about it, and he eventually said that the information I provided helped him and bid us goodbye. Going back to the beginning of the thread and quoting my first response to Vel is childish, especially in light of what came after. You have no reason to be talking to me about unabsorbed overhead. You're just trying to be relevant. Goodbye.