Vern Edwards

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.

Oh, b.s. The question is at what point if ever should a government official, a contracting officer, refuse to comply with a directive from a superior. It's a good question. Is it okay to comply with a minor illegality but not a major illegality, or is any degree of illegality sufficient to prompt refusal? What is the duty of the government official, and to whom does the official owe it? There have been many points in 20th and 21st century history at which bureaucrats have faced choices in that regard. Think about the last five years. Referring to the Nazis simply casts the issue in stark relief. I'm sorry that I rattled you by mentioning Nazis. But you can find such considerations and comparisons in any number of books and articles on bureaucracy, morals, and ethics, not to mention in the news and opinion media over the course of the last five years. I thought you might find discussions of such things much more satisfying than giving short shrift answers ("I dunno--what do you think?") to beginners' questions. My mistake. Another thing you haven't heard of? https://www.rollcall.com/2021/11/05/federal-contractors-see-risks-in-unclear-vaccine-mandate/ https://federalsoup.com/articles/2021/11/02/report-some-feds-contractors-resist-vaccine-orders.aspx https://www.ehstoday.com/covid19/article/21179990/reasons-for-federal-contractor-vaccine-delays-laid-out https://www.bassberrygovcontrade.com/covid19-vaccine-mandate-government-contractors/ https://thehill.com/opinion/national-security/582047-vaccine-mandate-already-causing-problems-for-defense-contractors https://www.defensenews.com/congress/2021/10/28/defense-firms-face-worker-losses-as-companies-impose-federal-vaccine-mandate/

Have you done much reading in the law of duress? I just did some checking and found more than 10,000 articles on the law of "economic duress". You might want to give that some thought. From Williston on Contracts, § 71.7, Types of duress—Economic or business duress An excerpt: I don't know much about this. I've only read a few things, enough to keep me from making firm pronouncements.

JTR Volume 2 (2014) https://www.defensetravel.dod.mil/Docs/perdiem/browse/Travel_Regulations/Regulations_Changes/Monthly/2014/JTR/579_(01-01-14).pdf JTR Volume 2 (2011) https://www.defensetravel.dod.mil/Docs/perdiem/browse/Travel_Regulations/Regulations_Changes/Monthly/2011/JTR/Change-551(09-01-11).pdf

See FAR 31.205-46(a)(2)(ii): Emphasis added. See also the Dept. of Energy Acquisition Regulation (DEAR) at FAR 970.3102-05-46(a)(2)(ii).

Let's be clear. We don't know that the mandate is illegal or otherwise wrong. We're not saying that anyone who processes the mods is killing anyone. This is just an exercise of thinking through a principle. We are thinking about the moral and ethical responsibilities of COs when told to follow directions. Do you think that the people who did the shooting, gassing and commanding of concentration camps were the only government personnel involved? The killers relied on low to mid-level bureaucrats to comply with orders that made no mention of such things, including procurement orders for certain, shall we say, materials. At some point during the war the people of Germany knew what was going on, more or less, and yet continued to process the seemingly harmless paperwork, like procurement orders for the pesticide named Zyklon B and orders for railroad cattle cars. But what if you or I were a purchasing agent in Nazi Germany and told to process an order for Zyklon B, the pesticide, in 1941, and suspected what is was to be used for? Would processing the order be moral? Would the person merely processing the order be innocent? What if we were told just to process a mod to change the delivery point to Oświęcim, in Poland? What would you do? I know who you are and think you're a good man, so I think I know the answer. John Stuart Mill, 1867 Some of our fellow citizens think it is very wrong, even immoral, to force them either to (a) let someone inject something into them that they think is dangerous and might make them ill or even kill them or (b) lose their jobs. https://www.reuters.com/world/us/eleven-states-sue-us-government-over-vaccine-mandate-federal-contractors-2021-10-30/ https://www.usnews.com/news/best-states/kentucky/articles/2021-11-04/states-sue-to-block-vaccine-mandate-for-federal-contractors https://www.npr.org/2021/11/05/1052633843/republican-states-sue-over-biden-vaccine-mandate Remember, this is just a thought exercise. It is a rhetorical test of a general principle.

I disagree. It's perfect apt. What the Nazis did required compliance with seemingly trivial orders by myriad low level bureaucrats. While they are an extreme case—the level and effect of possible illegality is not the same—they are a case. The underlying question is the same: Should government officials obey unlawful orders? Does the answer depend on the nature, degree, or possible consequences of the illegality? (Full disclosure—my maternal great grandparents were murdered by the Nazis in France in June 1940.) Quite a few of our citizens think it deeply wrong of the government to force them to either submit to measures that they fear or despise or give up their jobs. You raised the issue. I'll address it as I see fit. You don't have to agree with my approach to doing so, but my approach is my choice.

@VelThanks, Vel!

Interesting. As a CO, I doubt that I would have questioned the legality of an executive order in my official capacity. But maybe I would have been wrong not to so so. See: Chalef, "No, You Probably Shouldn’t Follow Every Order From Your Boss: Obedience is in the DNA of hierarchical organizations, but sometimes intelligent disobedience is the greatest act of loyalty," Government Executive, August 25, 2016, https://www.govexec.com/management/2016/08/no-you-probably-shouldnt-follow-every-order-your-boss/131050/. See also FAR 1.602-1(b). Even soldiers are expected to obey only lawful orders. See the Uniform Code of Military Justice, Article 91, Insubordination, para. (2), 10 USC § 891. That seems to presume that soldiers must ask themselves whether an order is lawful. Think My Lai. Think the Nuremberg trials.

@VelThat is an interesting question. How do you think the answer would affect the issue analysis, if at all?

@Don MansfieldAfter you read La Gloria, read Tesoro Hawaii Corp. v. U.S., 405 F.3d 1339 (Fed. Cir. 2005).

@ji20874 That's a good idea! The PIL has done and is doing good things. But written explanatory material is of enormous value, especially when widely disseminated. The power of ideation to drive innovation when combined with clear and targeted explanation is virtually limitless. One of the greatest examples of the 20th Century. Four pages. https://psychology.okstate.edu/faculty/jgrice/psyc3214/Stevens_FourScales_1946.pdf Every one of my source selection students gets a copy.

BTW, I didn't say I don't like the PIL Workbook. I said I'm not satisfied with it. Is it bad to want more?

"Why do you want to put that clause in our contract?" "Because the President says that I must." "But I don't want to agree to that." "Well, then, we will not place any more orders and will not renew your contract" "But you're a big part of my business. If you stop ordering from me I will take a big hit. I might not survive." "I feel for you, but there is no option. Take it or leave it." And you're only doing this because the President told you to." "Yep." "Okay. I guess I have no choice." "Correct. Sign here." The word I'm thinking about is duress. But I have no idea how it would turn out in court. I have already accepted the clause in my contracts.

I didn't know whether to laugh or cry when I read that comment. PIL did not provide "help" practitioners in doing comparative evaluations without assigning adjectival ratings. They just told them about the possibility of doing it in certain kinds of acquisitions. They did not describe the process or the pros and cons. Aside from one GAO protest decision cited on another page, they did not refer practitioners to a source of practical information, like Hammond, Keeney, and Raiffa, Smart Choices: A Practical Guide to Making Better Decisions, Harvard Business Review Press (1999), Chapter 5, or Goodwin and Wright, Decision Analysis for Management Judgment, 5th ed., Wiley (2014), p. 40, "Direct rating." Neither book teaches the use of adjectival ratings. In 1993, Ralph Nash and John Cibinic wrote this, in Competitive Negotiation: The Source Selection Process, p. 350, The George Washington University. See Development Associates, Inc., B-205380, July 12, 1982: (Use of adjectival ratings was first mandated by the Air Force in the early 1980s because there were too many foul-ups using numerical scores, and because they thought it would foster more subjectivity.) According to Westlaw I have written something like 50 published articles in which I discussed scoring or rating. Fifteen years ago, In 2006, I wrote an article entitled, Scoring or Rating in Source Selection: A Continuing Source of Confusion, which Bob will post at Wifcon as soon as the publisher grants permission. In that article I wrote this: I wrote this in 2009: In a lengthy analysis of a protest against agency proposal scoring, Prof. Nash wrote this in 2010: PIL did not invent the wheel. There is nothing new about evaluation by direct comparison without using ratings or scores. If you have never heard, then maybe you should review your reading program.

The PIL Workbook discussion of comparative evaluation is not proof of anything. That's not to say that it's wrong about anything, but that it is short on explanation. That's my main complaint about it. It is incomplete. Look at page 22, which presents "Innovation Technique 5, Comparative Evaluation." WHY is comparative evaluation "Not recommended for use under FAR Part 15"? That's a natural question, which the Workbook should answer. It should explain. In what way does comparative evaluation provide "ultimate subjectivity/flexibility"? Explain. Is subjectivity better than objectivity? More fundamentally, what the heck is comparative evaluation and how does it work? The workbook says it's "comparing offers to each other." Don't we always compare offers to each other when making a source selection decision? Isn't that the very essence of competition? What I think they mean is compare offerors to each other, not against a standard or rating scale. They could have explained that in a few sentences. Maybe they could have used some of the space they gave to the two big and not especially useful text boxes that take up three fourths of the page. It refers readers to the "GAO Guide," but when you get there the only reference to comparative evaluation is to a single protest decision about a task order competition. That 14-page decision does describe direct comparative evaluation in two short paragraphs on page 3. But some explanation in the PIL Workbook about what to look for in that decision and what to see would have helped. (The protest did not challenge evaluation by direct comparison.) Ideation without explanation is practically useless, unless the people you are communicating with already know and understand the underlying concepts and principles. The Procurement Innovation Lab is a good thing, and my objective in writing this is not to trash them. But they need to do better for a workforce whose leadership has failed to provide them with essential professional education and training and essential reference tools of their trade. The PIL Workbook is interesting and pretty, but it's not enough.

No, I don't, because they were not published in compliance with 41 USC 1707. However, see Tesoro Hawaii Corp. v. U.S., 405 F.3d 1339 (Fed. Cir. 2005).

@ji20874If you are not aware of "anything else" doing anything helpful, maybe you're not looking in the right places. I will see if I can arrange for Bob to be able to post some helpful things.