Vern Edwards

In order to avoid mundane and repetitive work, I changed jobs every two years. Like clockwork. That might be easier to do today than it was in my youth, thanks to changes in the workplace and worklife. I spoke with a Boeing engineer recently who changed his place of residence from the Atlantic Southeast to the Pacific Northwest, but kept his job in the same program. His boss said that he didn't care where he lived, since they were all tied together by IT. It's the terrifying business challenges that make worklife worthwhile.

Most contracting work is mundane and repetitive. That's just a fact of life. If you want interesting, challenging work, go to a place where the contract actions are sole source and large dollar value and where you'll work with program managers, scientists, engineers, and contractors who respect people who are interested in what they do, can figure things out, and can get things done quickly and with a minimum of hassle. Show program managers, scientists, and engineers that you understand their work, can write their sole source justifications or statements of work or fix their drafts, negotiate complex deals without excessive delay, and have the respect of the various legal and administrative review staffs, and they'll love you and treat you well. That's just my opinion, which is based on personal experience and preference. I wouldn't want to spend a career lifetime buying nuts and bolts or processing FSS orders for mundane service requirements. I would want to be a team problem-solver in a complex system.

It's not evidence of anything except that contracts and orders must be modified. How you do that is a practical matter. I feel like I must give a course in basic contracting. There are IDIQ contracts and there are IDIQ contracts. Under a single-agency, single-award contract there would be nothing wrong with cutting a single bilateral mod covering both the contract and specified orders under that contract in order to incorporate the clause in both. Under a single-agency, multiple-award contract you would need a mod for each contractor, but you could still mod each contract and specified orders in a single bilateral mod. Under a multi-agency contract the managing CO would mod the contract, but each ordering agency should modify its orders. The above will work, even if REAs or claims result, unless your contracting or legal staff are boneheaded and stupid.

Maybe, but don't underestimate the ability of our legal system to turn "knee jerk" into costly litigation. One person's "knee jerk" is another's "bread and butter". Ever read H.G. Wells' novel "The War of the Worlds"? Well, "intellects vast and cool and unsympathetic" may be standing by and "slowly and surely [drawing] their plans against us." Americans are among the most litigious people in the known universe. Someone gets sick at work and files suit against their employer for not complying with the mandate. Better, perhaps, to think and discuss now than to wait for a legal onslaught. Maybe the best offense is a good defense.

If you are a contractor, ambiguity about this matter is a good thing, because it may raise a defense against accusations about false claims. If you are a CO, the ambiguity is easily avoided by expressly addressing the matter in the bilateral mod, stating that the contractor agrees not only to adding the clause to the underlying IDIQ contract, but also to all ongoing task orders. Any CO who adds the clause to the contract and assumes that it applies to orders issued before the effective date of the mod is simply foolish.

I wonder if the DOD class deviation violates 41 USC 1707, Publication of Proposed Regulations. I have searched the Federal Register and have found no proposed, interim, or final rule implementing its provisions to date. The deviation memo makes no mention of a waiver pursuant to 41 USC 1707(d). Even if publication is waived, a notice must be published in accordance with 41 USC 1707(e)(1). If the deviation must be published and has been issued in violation of 41 USC 1707, the policy might not be enforceable. From a 2013 article:

@prestonmlNeither do I. Nor have I seen any express mention of contracts for commercial items in any of the policy documents issued thus far to implement the E.O. If I were in your place I would say that the rule in FAR 44.402 and the DFARS still applies, and I would not flow the clause down to commercial item subs until authoritatively instructed otherwise in writing.

This morning, Bloomberg Law published an article entitled, "Vax Rule’s ‘Gray’ Areas May Help Contractors Beat Fraud Claims." It opens as follows: The article is well worth reading if you have or can obtain access.

@REA'n MakerWhy are you worried if they're currently on contract to finish a job? Are you worried that they'll catch Covid?

Talked to an engineer from Boeing last night. He said, "No worries." Boeing had instituted mandatory vaccinations on the government (NASA) program that he works on some time ago. He said it didn't cause any problems or loss of workers.

@LeighHarI'm going to say to you what others have been too kind to say. It's YOUR contract. Read it and do the necessary follow-up research. Figure it out. All the information you need is available online. Heard of Google? It's unreasonable for you to ask someone to educate you via back and forth online posting and incomplete communication. You should be doing professional research. Your question is not stupid, but your conduct of your inquiry is. Your question is incoherent. Do your homework! Think!

FAR 19.708: Performance is what must be entirely outside the U.S. and its outlying areas. Is it unreasonable to say that performance is what the contract statement of work or specification expressly requires the contractor to do—the performance that the government must accept or reject in accordance with FAR Part 46? Does the contract expressly require the contractor to buy brooms? Does the government receive and accept brooms? Does the contractor buy brooms for particular contracts or does it buy them for stock? Is a company that sells brooms to the contractor for stock—not for a particular contract—a subcontractor?

@ji20874I don't agree that we should not read, and should forget, the EO. It's the ultimate source document. The clause says it is implementing the EO, and the task force guidance refers to it. A court or board of contract appeals would almost certainly read the EO when trying to interpret the intent of the clause and the task force guidance. @NenaLenzMy answer is no. The stated goal of the EO is to safeguard contractors' workers, i.e., individual persons. The contract clause requires compliance with task force guidance in order to achieve that end. The task force guidance requires three things: The first requirement is what worries everyone. The task force guidance defines 10 terms on pages 3 and 4: community transmission contract and contract-like instrument contractor or subcontractor workplace location covered contract covered contractor covered contractor employee covered contractor workplace federal workplace fully vaccinated mask I think the guidance definitions that are key to its interpretation and application are probably covered contractor employee and covered contractor workplace: I think you have to start with covered contractor employee. I think a contractor employee who does anything that might affect covered contract performance, including work such as granting or approving settlements or waivers, cost accounting, approving or controlling contract-related policies or procedures, hiring or approving hires, providing information required for performance or reporting, etc., would be working "in connection with a covered contract." If that employee is working at the covered contractor's HQ, then that would make the HQ a covered contractor workplace and the employee a covered contractor employee. But I think that such an employee working exclusively from home probably would not be a covered contractor employee. According to the guidance: The very first safety protocol is as follows: Italics in the original. Thee guidance requires compliance by "individuals". Not everyone working at a covered contractor workplace is required to get vaccinated, only covered contractor employees. Remember, the EO is seeking to achieve its ultimate goal through government contracts. Contracts are the policy vehicle. I don't think a president can order covered contractors to require employees to get vaccinated if they are not working on or in connection with a covered contract. Ultimately, boards and courts will have to interpret the guidance. Some might interpret it broadly, others narrowly, and some might refer to the EO when deciding which way to go. Bottom line: I do not think you can hold an employee at an HQ to be out of reach of the clause just because they work at the HQ and not at the office that is working under the statement of work. But my opinion is based on nothing more than two or three reads of the guidance. I am open to others' interpretations.

I think here_2_help's quote is part of a message from Arnold Punaro, Chairman of the Board of the National Defense Industrial Association (NDIA).

I would say that the government does a good job of preparing plan documents. Whether the plans are any good I cannot say. But since you say they don't do a good job adhering to their plans, how would we know? What I do know, and can document, is that with every new administration and new appointee we get a rash of "initiatives," and priorities, especially in DOD. They don't seem to last much beyond the office-holder's tenure. Sometimes they don't even last until the office holder leaves.

Thanks, H2H! Caitlin took off without getting an answer to her first question, which was: The question was muddled, but maybe Patrick interpreted it differently than I did. It appears to me that she thought there could be only one application of G&A to the direct travel costs. Maybe that's not what she meant. She took off, seemingly satisfied, and your response answered my question. Thanks again.

Thanks, Neil, but I knew that the sub's G&A rate applied to the sub's travel costs. The sub's travel costs include the direct costs of travel plus its G&A costs. What I want to know is whether the prime may apply its own G&A rate to the sub's costs, which include the sub's G&A. So that the prime submits a request as follows: Prime's request for payment = (Sub's direct travel costs + Sub's G&A) + (Prime's G&A). Patrick's response, with which here_2_help agreed, seems to indicate that the prime cannot add its own G&A in its request for payment from the government.

Has anyone answered those questions? Is the application of G&A a matter of either the sub's or the prime's? Couldn't the prime apply its G&A to the sub's costs, which include the sub's G&A? Isn't the prime's G&A part of its allowable costs? Patrick seems to say that only the sub's rate applies. Is that true? I'm asking, not arguing.

I think you have pointed in the direction of our big problems, maybe our biggest: Too many short-term presidential appointee "leaders". Lots of "initiatives," not enough long-term follow-through. A hoorah kickoff, followed by flatulence. The longest lasting effect? Organizational incompetence. Organizational incompetence in government is the real plague of our time. It's already made us sick. Let's hope it doesn't kill us off.

So, whistleblowers will file qui tam actions accusing companies of noncompliance and filing false claims for payment? Maybe so. But that will be years from now, don't you think?

Well, you're not being very philosophical. A philosophical person asks questions and proposes and debates answers. You're just grousing, which is okay, if you do it philosophically. "By the dog, Gorgias, there will be a great deal of discussion before we get at the truth of all this." Socrates in Gorgias by Plato, Jowett, trans.

See: What Is An Executive Order? American Bar Association (Jan. 25, 2021) https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/what-is-an-executive-order-/ See also: Congressional Research Service, Executive Orders An Introduction (March 29, 2021) https://crsreports.congress.gov/product/pdf/R/R46738 In 1957, Congress printed a very interesting study of executive orders. See: Executive Orders and Proclamations: A Study of A Use of Presidential Powers, House of Representatives, Committee on Government Operations (December 1957). Available online through Google Books: https://books.google.com/books?id=nnLRAAAAMAAJ&printsec=frontcover&dq=EXECUTIVE+ORDERS+AND+PROCLAMATIONS:+A+STUDY+OF+A+USE+OF+PRESIDENTIAL+POWERS&hl=en&newbks=1&newbks_redir=0&sa=X&ved=2ahUKEwiX8qeiuczzAhXEGTQIHcQyCjwQ6AF6BAgIEAI#v=onepage&q=EXECUTIVE ORDERS AND PROCLAMATIONS%3A A STUDY OF A USE OF PRESIDENTIAL POWERS&f=false And just to fan the flames, let me suggest: "Executive Orders, the Very Definition of Tyranny, and the Congressional Solution, the Separation of Powers Restoration Act," by Leanna M. Anderson, Hastings Constitutional Law Quarterly, Vol. 29 (2002), No. 3, p. 589. https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1733&context=hastings_constitutional_law_quaterly

Yes. I wonder if the DAR Council will revise DFARS 215.306 to get rid of the "should." Probably not. Unfortunately, the GAO's decades-long emphasis on the disclosure of deficiencies and significant weaknesses has turned "discussions" (which FAR 15.306(d) says are "negotiations") into a contractually meaningless exercise of telling an offeror what's wrong with its essay test (proposal), instead of a meaningful communication between prospective contracting parties. Discussions have been successfully protested so often that COs act as if they were a criminal suspect who has been read their rights. History shows that the protest system and poor training have perverted the source selection/contract formation process and discouraged truly meaningful discussions.

The following bullets are from the GSA briefing to which RF-SA provided a link, Chart 13: CO will enforce just like any other contractual requirement. Taskforce Guidance tells contractors that they may assume the subcontractor is complying with the clause absent credible evidence otherwise. If concerns arise about vaccination status of a particular employee, CO should ask the contractor to confirm the employee compliance with the vaccination requirement. COs should not be directly requesting employee vaccination information. Work through contract administration POCs. Now, as for that first bullet, we've had some serious arguments in this forum over the past few months about enforcing socio-economic clauses. Some of our most experienced members believe in proactive CO monitoring and enforcement. Some think they are moral imperatives. I'm sure that there are other contracting personnel who feel much the same, if not quite as ardently. So, ask yourself: What does that first bullet tell contractors about what to expect? I doubt that there will be much in the way of aggressive monitoring and enforcement at most agencies. But I don't know. There may be issues where contractor employees are performing on site and mixing with government employees.

FAR 15.306(a)(3) says: FAR 52.215-1(f)(4) says: DFARS 215.306(c)(1) says: FAR 2.101 says: Now see Oak Grove Technologies, LLC v. U.S., (Court of Federal Claims No. 21-775C, August 2, 2021), Section V.B., pp. 30 - 39. https://law.justia.com/cases/federal/district-courts/federal-claims/cofce/1:2021cv00775/43053/73/ The protester challenged the agency's decision to award without discussions, despite the fact that the solicitation included FAR 52.215-1(f)(4). The court held for the protester and granted an injunction against contract award. The court also ordered the government to explain why it should not be sanctioned for "its piecemeal and improper handling of the administrative record." The decision is an education. Among other things, you will learn about the significance of "should" and the meaning and limits of "discretion." According to Black's Law Dictionary, 11th ed. plenary means:/. The decision is by a relatively new judge, Matthew H. Solomson. You can read his resume at the Court's website. https://www.uscfc.uscourts.gov/matthew-h-solomson