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Compliance with new federal laws


govt2310

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I just noticed something.  I went back and re-read the Public Law and the OMB Memo.  The Public Law directs OMB to issue "standards and guidelines . . . requiring the removal" of TikTok from "information technology."  The OMB Memo says that the OMB Memo applies to "information technology" as that term is defined in 40 USC 11101(6).  The OMB Memo further states that "That definition [of IT] reaches not only IT owned or operated by agencies," but it also reaches IT "'used by a contractor under a contract with the executive agency that requires the use' of that IT, whether expressly or 'to a significant extent in the performance of a service or the furnishing of a product.'"  Hmm, the more I look at this, it sounds to me like OMB is saying that the Contract between the Agency and the Contractor has to "require" the "use" of TikTok.  I can't imagine any agency having a contract like that, except the military and intelligence agencies.  If an agency has no contracts with contractors that require the use of TikTok, then the 90 days to cease use of contracts "that contain requirements that may include use of TikTok in performance of the Contract" (or you can modify the contract) doesn't apply, right?  All the agency has to do is identify the use or presence of Tiktok on "information technology," and as far as contractors go, the agency just has to notify its contractors to confirm that they don't have TikTok on their "information technology" used in performance of the Contract, right?

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1 hour ago, govt2310 said:

The OMB Memo further states that "That definition [of IT] reaches not only IT owned or operated by agencies," but it also reaches IT "'used by a contractor under a contract with the executive agency that requires the use' of that IT, whether expressly or 'to a significant extent in the performance of a service or the furnishing of a product.'"  Hmm, the more I look at this, it sounds to me like OMB is saying that the Contract between the Agency and the Contractor has to "require" the "use" of TikTok.  I can't imagine any agency having a contract like that, except the military and intelligence agencies.  

Lots of agencies use TikTok and I assume their operational support contractors do as well.  It’s a highly popular form of social media to reach out to a wide spectrum of our population, especially younger people.  Just guessing but probably the military services use it for recruiting, HHS for informing about health issues, VA to communicate to Veterans, Education about the availability of financial assistance, Agriculture to provide safety information on fruits and vegetables, CPSC on dangerous products, and on and on.  Much of the public communication activities of the government are contracted out.

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27 minutes ago, formerfed said:

Hmm, the more I look at this, it sounds to me like OMB is saying that the Contract between the Agency and the Contractor has to "require" the "use" of TikTok.

I don’t read it that way. Are you saying that, if the Agency doesn’t specifically require the use of TikTok but the contractor uses it expressly or “to a significant extent in the performance of a service or the furnishing of a product", then it’s ok to continue using it?

That doesn’t make any sense to me.

Edit: Vern posted above while I was posting:

“@govt2310"Require" does not necessarily mean that the contract expressly requires use of TikTok. It can mean that the contractor needs certain information in order to perform and has found that TikTok is the best or only source of the information.”

i agree with Vern.

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7 hours ago, Vern Edwards said:

You are suffering from FAR paralysis. By your take, a CO cannot implement law and executive direction until the FAR addresses it. That is utter nonsense. It has no basis in statute or regulation. FAR 1.602 speaks plainly.

I'll address this and then we can agree to disagree. 

That's not my "take"--that is you resorting to a straw man argument.

The relevant parts of 41 U.S.C. 1707 are as follows:

Quote

§1707. Publication of proposed regulations

(a) Covered Policies, Regulations, Procedures, and Forms.-

(1) Required comment period.-Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it-

(A) relates to the expenditure of appropriated funds; and

(B)(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or

(ii) has a significant cost or administrative impact on contractors or offerors.

(2) Exception.-A policy, regulation, procedure, or form may take effect earlier than 60 days after the publication date when there are compelling circumstances for the earlier effective date, but the effective date may not be less than 30 days after the publication date.

(b) Publication in Federal Register and Comment Period.-Subject to subsection (c), the head of the agency shall have published in the Federal Register a notice of the proposed procurement policy, regulation, procedure, or form and provide for a public comment period for receiving and considering the views of all interested parties on the proposal. The length of the comment period may not be less than 30 days.

[...]

(d) Waiver.-The requirements of subsections (a) and (b) may be waived by the officer authorized to issue a procurement policy, regulation, procedure, or form if urgent and compelling circumstances make compliance with the requirements impracticable.

(e) Effectiveness of Policy, Regulation, Procedure, or Form.-

(1) Temporary basis.-A procurement policy, regulation, procedure, or form for which the requirements of subsections (a) and (b) are waived under subsection (d) is effective on a temporary basis if-

(A) a notice of the policy, regulation, procedure, or form is published in the Federal Register and includes a statement that the policy, regulation, procedure, or form is temporary; and

(B) provision is made for a public comment period of 30 days beginning on the date on which the notice is published.

(2) Final policy, regulation, procedure, or form.-After considering the comments received, the head of the agency waiving the requirements of subsections (a) and (b) under subsection (d) may issue the final procurement policy, regulation, procedure, or form.

Note that the statute contains a provision to account for exigent circumstances.

However, in practice, most agencies will instead issue a class deviation in the form of an internal memorandum authorizing or requiring contracting officers to comply with the new policy. The Director of Defense Pricing and Contracting website currently lists over 40 such class deviations. Similarly, the Civilian Agency Acquisition Council website contains a long list of CAAC Letters advising civilian agencies to issue class deviations as temporary measures to implement new policies. We should expect to see something soon for No TikTok on Government Devices.

If you think COs should publicize the new policy within their agencies and hold planning meetings, you'll get no argument from me. If you think COs should start developing and incorporating their own provisions and clauses in solicitations and contracts to implement the new policy based on just the OMB memo, then I disagree. 

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  • 2 weeks later...
6 hours ago, govt2310 said:

@joel hoffman Question: when you prepared the contract modifications for USACE for the Prompt Payment Act of 1989, were those unilateral modifications or bilateral modifications?  From what you posted, it sounds like they were bilateral, but I just want to be sure. 

I will have to check my PPA folder at home. Yes they were unilateral mods. The clauses were mandatory  by statute and regulation and were necessary to implement a significant public policy, etc. They were effective for new contracts issued on or after 1April 1990. HQUSACE issued a directive to issue them via Admin Mods as effective in those contracts by operation of law.

That’s my recollection but I will check my folder when I can to verify.

 

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@Don MansfieldI won't quote your comment because it's too long. I'll rest on this:

Congress enacted a statute requiring that agencies take a certain course of action and directing OMB to issue direction and guidance. It did not direct the FAR Council to promulgate a regulation.

OMB did not think it necessary to publish its direction and guidance in the Federal Register for public comment.

Public comment is irrelevant, because it cannot effect a change in the statute or in the statutorily-mandated guidance published by OMB.

I see nothing in 41 USC § 1707 saying that the FAR must be changed before a statute and statutorily-mandated guidance can be put into effect. I see nothing in the FAR saying that contracting officers cannot obey a statute until the FAR tells them how. Obeying a statute does not seem to be a FAR deviation as defined in 1.401.

As for a strawman argument, I am not above using one when it suits me, but my previous argument was not a strawman. I said, "By your take, a CO cannot implement law and executive direction until the FAR addresses it," and it seems to me that that's exactly what you are saying.

So we can disagree on two things.

Now, if the FAR Council intends to impose requirements that go beyond the statute and statutorily-mandated guidance, then it should publish a rule. But those people are unlikely to do anything more than turgidly restate what has already been stated.

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If Congress enacts a statute requiring agencies to take a certain course of action and directs OMB to issue direction/guidance, and this affects existing contracts, do the contractors whose contracts have to be unilaterally modified have a FAR changes clause argument?  For example, if removing Tik Tok from devices costs the contractor money, can the contractor file a REA or claim (citing the FAR changes clause)?  I get it that the contractor has to comply, but does it have to do so at no extra cost to the government?  In other words, is the new statute a Sovereign Act, so the contractor has to comply anyways, so it is not a "change" that gives the contractor a right to seek extra compensation for the cost of complying?

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@Vern EdwardsI thought we agreed to disagree. Remember I had FAR paralysis and was a moron for not understanding the crystal clear OMB memo? 

3 hours ago, Vern Edwards said:

Congress enacted a statute requiring that agencies take a certain course of action and directing OMB to issue direction and guidance. It did not direct the FAR Council to promulgate a regulation.

Again, so what?

3 hours ago, Vern Edwards said:

OMB did not think it necessary to publish its direction and guidance in the Federal Register for public comment.

So what?

 

3 hours ago, Vern Edwards said:

I see nothing in 41 USC § 1707 saying that the FAR must be changed before a statute and statutorily-mandated guidance can be put into effect. I see nothing in the FAR saying that contracting officers cannot obey a statute until the FAR tells them how.

So what?

3 hours ago, Vern Edwards said:

Obeying a statute does not seem to be a FAR deviation as defined in 1.401.

Maybe, maybe not. Depends on what the statute says.

 

3 hours ago, Vern Edwards said:

I said, "By your take, a CO cannot implement law and executive direction until the FAR addresses it," and it seems to me that that's exactly what you are saying.

Then you've misunderstood. Complying with law and executive direction may or may not require a deviation from the FAR. Depends what the law or executive direction says.

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4 hours ago, Vern Edwards said:

Public comment is irrelevant, because it cannot effect a change in the statute or in the statutorily-mandated guidance published by OMB.

On March 15, the FAR Councils opened FAR case 2023-010, "Use of Covered Application Services". According to the Open FAR Cases Report of March 17:

Quote

This rule implements OMB Memo M-23-13, “No TikTok on Government Devices” Implementation Guidance, and the No TikTok on Government Devices Act which prohibits software applications owned and operated by ByteDance Limited (covered applications) on Government Devices.

Under "Status" the report states:

Quote

03/15/2023 DARC Director tasked Acquisition Technology & Information (FAR) Team to draft interim FAR rule.  Report due 05/03/2023.

My "take" is the FAR Councils think that public comment is not only relevant but required.

 

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12 hours ago, govt2310 said:

is the new statute a Sovereign Act,

Not necessarily.  You have to read the statute and determine what the intent of congress was when it wrote the statute.  If the statute is one of general application, such as a tax law, the enactment of the law would probably be a Sovereign Act.  On the other hand, if the statute was primarily directed at government contractors, it might not be a Sovereign Act.  It all depends.

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15 hours ago, Vern Edwards said:

Congress enacted a statute requiring that agencies take a certain course of action and directing OMB to issue direction and guidance. It did not direct the FAR Council to promulgate a regulation.

Vern, I am curious as to how this statement applies to the situation where congress passes a law directing one agency to issue regulations but does not direct the FAR Council to do anything.  For example, congress passes a law directing the SBA to issue certain regulations, which SBA does.  The law is fully implemented when the SBA regulations take effect.  The law requires no action by the FAR Council.  Should contracting officers act in accordance with the SBA regulations even if they are inconsistent with what is in the FAR?  Don't take this as an attempt to pose a gotcha question.  This is something that contracting officers and contractors face from time to time and there does not seem to be a settled answer to it.

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@Retreadfed

3 hours ago, Retreadfed said:

Vern, I am curious as to how this statement applies to the situation where congress passes a law directing one agency to issue regulations but does not direct the FAR Council to do anything.  For example, congress passes a law directing the SBA to issue certain regulations, which SBA does.  The law is fully implemented when the SBA regulations take effect.  The law requires no action by the FAR Council.  Should contracting officers act in accordance with the SBA regulations even if they are inconsistent with what is in the FAR?  Don't take this as an attempt to pose a gotcha question.  This is something that contracting officers and contractors face from time to time and there does not seem to be a settled answer to it.

I have long argued that the FAR councils publish rules unnecessarily. 41 USC 1707 does not say when the FAR councils (small "c", plural) must write a rule. It says only that when they do they must publish it for public comment. If SBA or DOL, for example, is responsible for implementation of a statute and publishes a rule for public comment, why should the FAR councils then publish a version of their own?

If Congress enacts a law, and the responsible agency issues a proposed rule for public comment and then a final rule, why should the FAR councils do anything other than refer COs to that rule? Why not work with the agency as it develops its rule to make it as complete as possible? Why write a rule of their own, and then tussle with each other when there is a conflict? What a waste of time.

It's all because the FAR Council (big "C", singular) thinks they have a single, comprehensive acquisition regulation, which is something they don't have and haven't had since about 12 months after the FAR took effect on April Fool's Day in 1984. That's a truth they know, but will not face. In the age of electronic regulations and hyperlinks, and in the dawn age of AI, what's being done in terms of Federal procurement regulation is way beyond stupid and an indication of the quality of some of the thinking of some of the senior executives in some places in Federal service.

Quote

Should contracting officers act in accordance with the SBA regulations even if they are inconsistent with what is in the FAR?

I think they should. I think that as soon as SBA publishes a final rule the FAR councils should add a hyperlink to that rule to the FAR. I think that should be done as a technical amendment to the FAR, not a new rule. The FAR councils would not be making new policy. They would only be notifying COs of new policy issued by another agency pursuant to Congressional legislation. I see nothing in the law which prohibits that approach. But that is not current practice. Current practice is along the lines of what Don has argued. Of course that only thwarts the will of Congress, delays implementation by the Executive Branch, and stresses the FAR council brain trust, which can't even fix the problem with the late bid rule, much less implement small business policy.

The anti TikTok law is important. It reflects Congressional concern about national security and the security of personal information about American citizens. It is outrageous that its implementation might be delayed by a turgid and unnecessary paperwork process developed by unimaginative scribes. And they have the nerve to call for "innovation." The sad thing is that the turgidity and lack of imagination that infects senior executives has spread to the working level.

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2 hours ago, Retreadfed said:

Should contracting officers act in accordance with the SBA regulations even if they are inconsistent with what is in the FAR? 

A different example discussed in the Forum.  Replace SBA with DOL.   

Specific to SBA consider their regulations of fair market price and 8(a) delegation of authority to agencies via partnership agreements.  Are these vocered the same in the FAR?

No doubt there are other examples.

39 minutes ago, Vern Edwards said:

I think they should.

I agree as by example it is already done.

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