Vern Edwards

Mainly time and complications if you ultimately lose. Otherwise, no particular "disadvantage." See the following: Override of CICA Stays: A Guidebook, Version 3, June 2008 https://www.jagcnet.army.mil/Sites//contractandfiscallaw.nsf/0/9DE4D2C744ABFC3F85257B42004536AC/$File/CICA Override Guidebook _June 08_.pdf Ensuring CICA Stay Overrides Are Reasonable, Supportable, and Less Vulnerable to Attack: Practical Recommendations in Light of Recent COFC Cases, 2008 https://heinonline.org/HOL/LandingPage?handle=hein.journals/airfor60&div=5&id=&page= Army Contracting Agency: CICA Automatic Stay Override Guide, April 2004 http://federalconstruction.phslegal.com/wp-content/uploads/sites/116/2007/09/CICA_Override_Guidebook.pdf Google CICA Stay Override for more.

What you are talking about is similar to idea of a military table of organization and equipment (TOE). See https://history.army.mil/html/forcestruc/tda-ip.html When I started out in contracting in the 1970s, when we began contracting out military functions, it was called a "contract manning table." It was either prescribed in an RFP or offerors were required to propose it. It's what you do when you are hiring a contractor to perform a function over some period of time rather than to complete a fully specified task. Today, such things are inconsistent with the doctrine of performance based acquisition. When the government began awarding firm-fixed-price contracts for performance of functions instead of just well-specified jobs, agencies included "manning tables" in contracts that specified job categories and numbers. See e.g., To Rowley & Scott, Comp. Gen, Dec. B-169946, Oct. 15, 1970, about a contract for food services at an Air Force Base. They were a pain in the neck, what with the need for daily reports about who showed up for work and who didn't, and deducting for absences. Performance based acquisition discourages the use of such manning tables. But what else can you do when you have to contract for the performance of a function over the course of a year in which the work ebbs and flows and it's not easy to get workers quickly on an as needed basis? Basically, you're hiring a workforce and specifying who and how many you want in it. The government has never thought clearly about the specification and acquisition of services.

That's what I have been told. It shows in the oral argument.

@joel hoffmanI didn't use the word "competency." I spoke mainly about the responsibility of contracting officers and recommended listening to the oral argument at the Federal Circuit. The GSBCA was history in 2006 and, if I remember correctly, its authority to decide IT protests ended in 1995, 25 years ago. That is ancient history. You and I are ancient, too. If we're going to tell war stories we should tell ones that have some bearing on now. Otherwise, young people will think Wifcon is Geezerville.

You should start a GSBCA thread. Of course, it doesn't exist today and hasn't existed since 2006. Why not post something other than reminisces of the dead past—something informative, that would help people learn? Isn't that what people say we're supposed to do? https://www.cmaanet.org/sites/default/files/2018-04/THE NEW BOARDS OF CONTRACT APPEALS - ARE THEY STILL RELIABLE.pdf https://papers.ssrn.com/sol3/papers.cfm?abstract_id=521042 https://core.ac.uk/download/pdf/235402767.pdf https://www.wardberry.com/govcon/contract-disputes-act-forum-selection/ https://www.hklaw.com/en/insights/publications/2018/08/cbca-issues-new-rules-of-procedures

No.

@2FARGone Have you read 29 CFR 541.300, "General rule for professional employees"? Based on that and the OPM standard, do you think 1102s qualify as professionals. Look at the 1102 educational requirements.

People have to get themselves to that level. I did, and if I did, anyone can. Read and study and think and discuss and read and think some more. And reject all opinions from opinionators who cannot or will not justify their opinions on the basis of established facts and clear, sound reasoning. Apply Hitchens's razor.

@formerfedI have been told that the judges on the Federal Circuit are patent attorneys, not contract law attorneys. The following is from a very famous case: See G. L. Christian and Associates v. U.S., 320 F.2d 345, 351 (1963). I was taught that. I have believed that and taught it to others, but it is wrong. During the oral argument at the Federal Circuit one of the judges asked the plaintiff's attorney why, if the contract was not for commercial items and inclusion of FAR 52.212-4 was improper, his client did not object to the terms of the contract before signing. The lawyer was unable to answer. The answer is that his client didn't have a clue until it got into a dispute with the government and had to hire an attorney. The "published directives" today are so voluminous, so convoluted, and change so often that the government cannot reasonably expect to attract more companies to do business with it and hold them responsible to know and understand what its own employees don't know and understand. Congress should enact legislation if necessary to overrule that holding of the old Court of Claims, which was the predecessor to the Federal Circuit. The government's contracting officers must be held responsible to (1) comply with the rules and (2) be able to explain the rules to clueless prospective contractors. The idea that companies that are not traditional defense contractors like Boeing, Lockheed, Northrop Grumman, and others like them should know the rules and understand what they're getting themselves into is ridiculous, especially when the contracting officers who must comply (see FAR 1.602-1(b)) and the judges who must decide cases don't know. Just my two cents worth.

@2FARGoneThe 1983 standard is no longer applicable. See this: https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-standards/1100/contracting-series-1102/

I have long been told that many of the lawyers and most of the judges that handle these kinds of cases don't really understand government contracting. Over the course of time I have come to believe that what I have been told is true and I have seen it to be true many times. But I have never seen that truth demonstrated as dramatically as I did when I listened to the oral argument before the Federal Circuit in this case. Go here: https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/ In the search box type JKB Services and Solutions and download the mp3 file and listen. The argument lasts slightly longer than 50 minutes. The judges are Moore, Newman, and O'Malley. The volume is low and you may need earphones. Prepare to be shocked. Here at Wifcon we are used to beginners asking questions using the wrong terminology and being confused about concepts. We have seen people think that "commercial items" refers to things, not services, even after they've read the definition of commercial items and been reminded that commercial items include services. We have seen them confuse "clauses" and "provisions." We have had to explain how FAR definitions, policies, provision and clause prescriptions, and provisions and clauses are connected. But you might not be ready for what you're going to hear in that oral argument. The good news is that what I heard confirmed what I have long believed: The contracting system is a mess, so the government needs experts in contracting to protect its interests. Contracting officers must be those experts. COs must not go to lawyers for explanations, they must go to lawyers to explain. And in order to be experts would-be contracting officers must read and study and think and discuss and read and think some more throughout their professional careers, in order become and remain expert. And given the importance of contracts and contracting to our contracted-out government, on which the security of our country and the well-being of our citizens depend, they must treat that necessity as a duty. We will make mistakes. But beyond understandable and forgivable mistakes, half-baked thought and work is dereliction of duty and cause for shame.

The 2022 NDAA, H.R. 4350, has passed the House. It is now under consideration in the Senate. Senators have thus far proposed 791 amendments to the House bill. That's right, 791. https://www.airforcemag.com/2022-ndaa-amendments-senate-starts-process/ If you want to read them, or just some of them, you can scan through the Congressional Record-Senate of Nov. 16, 2021, which you can obtain here: https://www.congress.gov/117/crec/2021/11/16/167/199/CREC-2021-11-16-senate.pdf As you will see, some of the proposed amendments are many pages in length. Most of them do not address contracting. Some of them are seemly unrelated to national defense. For information about the Senate amendment process see Congressional Research Service, The Amending Process in the Senate (2015). https://crsreports.congress.gov/product/pdf/RL/98-853 Title VIII of the House bill, "Acquisition Policy, Acquisition Management, and Related Matters," contains 71 sections. Stand by for more rules. Our Federal legislative process is wacky. When it comes to annual NDAAs it is absolutely bonkers.

What bothers some readers of the Federal Circuit's decision are two sentences: But, as explained below, FAR 52.212-4 governs the termination of commercial item contracts for the government’s convenience, and it does not apply to service contracts, such as the contract at issue in this case. As noted, FAR 52.212-4 applies only to contracts for the acquisition of commercial items; it has no effect on the service contract between JKB Solutions and the government. In order to understand the decision you have to understand the plaintiff-appellant's argument, which is set forth in its brief to the Federal Circuit. In referring to "service contract," the court meant a noncommercial service contract. They were not making a distinction between commercial items contracts and service contracts, but between commercial items contracts for services and contracts for noncommercial services. Why do I think that? The court said: "On appeal, JKB Solutions principally argues that the termination for convenience clause of FAR 52.212-4 does not apply to its service contract." So I read JKB's argument, which appears in its appellate brief. Here is the pertinent part that argument: Note the acknowledgement in the first paragraph that some kinds of services are commercial items and can be procured under FAR Part 12. In short, what JKB argued was that the contracting officer could not terminate the service contract for convenience because it did not include an applicable termination clause. FAR 52.212-4, which was in the contract and includes a T for C paragraph, was not applicable because the contract was not for a commercial service. The Court of Federal Claims said that the clause could be applied anyway, because the clause itself does not say that could not be applied to noncommercial service contracts. That was a dumb, even shameful argument by the government and a dumber decision by the court. See FAR 1.401(c) and 1.403. The Federal Circuit overruled the claims court because it erred, and sent remanded the case for reconsideration. In so doing the Federal Circuit did not say that there is a distinction between commercial items contracts and service contracts or that you cannot have a commercial items contract for services. It made a distinction between contracts for commercial services and contracts for noncommercial services and said that a clause for commercial services cannot be applied to a contract for noncommercial services. The courts don't write case reports to teach people, but to explain their decisions. They do not write for laypersons. They did not do good jobs of explaining themselves in this case.

I'll take smiles any time. 😃

I know, I know. It's a kind of madness.

Uhh, I'm not trying to sell my view. I just reported my conclusion, which is based on my reading of the decision and the plaintiff-appellant's brief. But in order to better inform you, let me refer you to the court's decision in CGI Federal, Inc. v. U.S., 779 F.3d 1346 (2015), a bid protest decision written by Judge Moore, now the chief judge and one of the judges on the JKB Solutions and Services decision at issue. The procurement in CGI was for services. In the decision she wrote: Emphasis added. So Judge Moore clearly believed in 2015 that a service can be procured as a commercial item under FAR Part 12. And we know that in JKB she read an appellate brief that quoted and discussed the definition of commercial items in FAR 2.101. Nothing in the language of the JKB decision states that services cannot be procured under FAR Part 12. It merely makes a distinction between a contract for commercial items and the particular service contract involved in the dispute. The phrase "service contract" appears in only seven sentences in the decision. Here they are, with emphasis added: Because that clause does not apply to JKB Solutions’ service contract, we vacate and remand for further proceedings. On appeal, JKB Solutions principally argues that the termination for convenience clause of FAR 52.212-4 does not apply to its service contract. But, as explained below, FAR 52.212-4 governs the termination of commercial item contracts for the government’s convenience, and it does not apply to service contracts, such as the contract at issue in this case. For purposes of its summary judgment motion, the government did not dispute JKB Solutions’ characterization of the contract as a service contract (and not a commercial item contract). The FAR’s own distinction between termination for convenience clauses based on types of contracts confirms that FAR 52.212-4’s termination for convenience clause does not apply to JKB Solutions’ service contract. In JKB Solutions’ opposition to the government’s motion for summary judgment, JKB Solutions argued that FAR 52.212-4’s termination for convenience clause “is inapplicable here because it concerns only Commercial Item contracts whereas the present dispute concerns a Service Contract.” As noted, FAR 52.212-4 applies only to contracts for the acquisition of commercial items; it has no effect on the service contract between JKB Solutions and the government. In each sentence the court makes a distinction between contracts for commercial items in general and the particular service contract involved in the dispute, which is exactly what the plaintiff-appellant asks it to do in its brief. That particular service contract did not buy a commercial item, and thus it should not have included the clause at 52.212-4. I want to be on record as saying that I'm not selling my view. I'm giving it away in an attempt to stop an incipient and unjustified freakout among the clueless. But I enjoy a good panic every once in a while. It's good for laughs. 😊

Okay, I read the plaintiff-appellant's brief to the Federal Circuit, and it light of its contents it is clear to me that the Federal Circuit's holding is not what it seems. The court did not make a distinction between commercial items contracts and service contracts. The court made a distinction between commercial items contracts and non-commercial service contracts. The court decided that the contract in question, which did include FAR 52.212-4, was not, in fact, a commercial items contract and that the clause thus did not apply. Think of the decision as applying the Christian Doctrine in reverse. The government acknowledged that the contract was not, in fact, a commercial items contract, but argued that the court should apply the termination provision of 52.212-4 anyway, because by its own terms the clause was not restricted in its application to contracts for commercial items. The Court of Federal Claims bought the government's argument, but the Federal Circuit did not. Sometimes court decisions are badly written. JKB Solutions and Services v. U.S. is badly written, but I think it's a good decision.

Either there is something about this case that we do not know or all of the lawyers involved were idiots, including the judges.

Here are some fun facts. In 1984, FAR Subchapter D, Socio-economic programs, Parts 19 - 25, took up 75 pages in the official CFR booklet. In 2020, FAR Subchapter D, Parts 19 - 26, took up 219 pages. It has grown even more in the last year. The clauses that implement the socio-economic programs are generally the most convoluted and difficult to interpret in FAR. Each program has a special constituency and was enacted as a sop to them. They complain to Congress when COs don't aggressively enforce the clauses, and the GAO and IGs issue reports about inadequate enforcement. Then Congress enacts more laws. Many of the clauses are based on executive orders and regulations promulgated by agencies such as the Department of Labor, the Small Business Administration, and the Environmental Protection Agency, which means that implementation of E.O.s and statutes tends to take a long time, going through the publication and comment process twice. COs must be familiar with both the FAR coverage and the regulations published by the program agencies. Congress does not fund additional contract administration personnel, and agencies don't provide enough training about all the various programs. The president has recently issued an E.O. on climate change that the FAR councils must implement, and they have asked for public input before drafting a proposed rule. FAR Case 2021-016. And I'll bet you thought that acquisition is about getting the right supplies and services, of the right quality, in the right quantity, to the right place, at the right time, for a fair and reasonable price.

So did Ptolemy when he said the Sun orbits the Earth. Don't be a fool, or an ass. I didn't make any such assertion or "seem" to be. I have no idea what a court or board would decide, and I'm not inclined to hazard a fool's prediction. I would do some homework before making any such assertion, and then state my grounds.

I am not thinking anything except that your assertion that a board or court is "likely" to decide in a certain way must be based on something. I asked what. If you didn't mean what you said, then say so. If you meant it, then what's the point in posting here if you don't want to explain yourself and discuss the matter. This is a FORUM, "A place , meeting , or medium where ideas and views on a particular issue can be exchanged." The Chambers Dictionary, 13th ed. I have no idea how a board or court would decide in such a case, because I have not RESEARCHED the question. I don't think your ability to research cases is less than mine. You're probably smarter than me. I'm not all that smart. I just work hard to make up. I think your willingness to do the work is less. I don't categorize thoughts as honest or dishonest. I categorize them as sound or unsound. I'd rather have a sound thought from a liar than an unsound thought from a saint.

Emphasis added. Sigh. @2FARGoneHave you bothered to read the Office of Personnel Management Position Classification Standard for Contracting Series, GS-1102? Do you need me to tell you how to find it?

Emphasis added. "Likely" was an interesting word choice. On what is that prediction based? In how many cases has a board or court found a challenged contract action to be lawful and binding that was grounded on an unlawful rule? Have you seen such a decision? If the authority for a mod was unlawful ex ante, what authority did the contracting officer have to sign the mod requiring the contractor to require its employees to be vaccinated or wear masks and be tested? Do COs have the inherent authority to impose such a requirement on their own initiative?

Ethics in contracting is an important matter, but it is one in which most acquisition personnel receive only superficial education and training, and that training is mainly practical, not philosophical. Few of us have studied ethics, and most of us have not read any formal treatises on ethics. (The 64-page, recently revised, entry on "Business Ethics" at the Stanford Encyclopedia of Philosophy https://plato.stanford.edu/entries/ethics-business/ is an interesting read.) I know that I made some ethical compromises when I was a contracting officer "in order to get the job done," which is why I wonder if there is a scale of ethical compliance and compromise on which some such compromises would be considered permissible. I know that according to the "textbook" there are no such permissible compromises. But, as a practical matter... ? Are tradeoffs permitted? As for "legal" and "illegal" I have been warned against saying that something or other is "illegal," warnings that I have not always heeded. I think lawyers like to hedge their bets in that regard. I don't think legal is the best term in the context of this thread. A better term would be lawful. Here are the Black's Law Dictionary 11th ed. definitions: legal adj. (15c) 1. Of, relating to, or involving law generally; falling within the province of law <pro bono legal services>. 2. Established, required, or permitted by law; LAWFUL <it is legal to carry a concealed handgun in some states>. 3. Of, relating to, or involving law as opposed to equity. illegal adj. (17c) Forbidden by law; unlawful <illegal dumping> <an illegal drug>. lawful adj. (13c) Not contrary to law; permitted or recognized by law; rightful <the police officer conducted a lawful search of the premises>. See LEGAL. — lawfulness, n. unlawful adj. (14c) 1. Not authorized by law; illegal <in some cities, jaywalking is unlawful>. 2. Criminally punishable <unlawful entry>. 3. Involving moral turpitude <the preacher spoke to the congregation about the unlawful activities of gambling and drinking>. — unlawfully, adv. See Bryan Garner's entries on legal and illegal in Garner's Dictionary of Legal Usage 3d ed. Would the bilateral mods discussed in this thread be unlawful and void if a court of competent jurisdiction were to declare the President's executive order unlawful? Would the fact that contractors agreed to them make them lawful and enforceable despite the unlawfulness of the E.O.? If the E.O. were to be found lawful, could the way in which a particular contractor was "persuaded" to sign the mod make it unlawful and void; for instance, if the CO threatened to give the contractor a poor past performance rating if it didn't sign?

See Harley, "Economic Duress and Unconscionability: How Fair Must the Government Be?" Public Contract Law Journal, October 1988, 86-87: Footnotes omitted. My research has persuaded me to believe that a claim of duress in this matter would not succeed.