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SmallGovCon Week in Review: May 10-14, 2021
This week on the blog we continue to bring you coverage of federal government contracting news as government agencies search for solutions to cyber security challenges and, in response, contractors enhance their own cyber defenses.
Here are a several other happenings in federal government contracting news for this week, including an announcement from Administrator Isabella Casillas Guzman, head of the U.S. Small Business Administration, announcing the latest application data results for the $28.6 billion Restaurant Revitalization Fund (RRF), passed as part of the American Rescue Plan.
Have a great weekend.
- Recovery for the Smallest Restaurants and Bars: Administrator Guzman Announces Latest Application Data Results for the Restaurant Revitalization Fund [Whitehouse]
- Four recommendations for contractors in response to the president’s FY 2022 discretionary budget request [FedTimes]
- How Defense contractors are preparing for cybersecurity certification [FedNewsNet]
- GSA claims success of TDR pilot, but industry experts not sold [FedNewsNet]
- GSA leads rise in automation projects government-wide [FedScoop]
- Twin Brothers Sentenced For Major Fraud Against The Government [DOJ]
- Agencies on the clock to fix long-standing cyber challenges [FedNewsNet]
- Watchdog Suggests 112 New Actions to Enhance Government Savings and Efficiency [GovExec]
- Man Admits Committing Mail Fraud while Serving Federal Sentence for Previous Fraud [DOJ]
- JUST IN: Pentagon Officials ‘Doubling Down’ on Acquisition Reform [NatDefMag]
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America’s Fragile Cybersecurity Infrastructure
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America’s Fragile Cybersecurity
Infrastructure
How do I avoid being next?
By: Brandon Graves
Share on linkedinShare on twitterShare on facebookShare on emailShare on printKEY TOPICS
On May 8, 2021, Colonial Pipeline announced that it was the victim of a ransomware attack. According to the statement, Colonial’s response to the breach shut down all pipeline operations. Colonial is responsible for 45% of fuel consumed on the East Coast.
While this security incident is grabbing headlines, it is far from the worst case scenario. We should consider it another wake-up call in a long line of them.
Infrastructure Cybersecurity
Companies responsible for infrastructure typically run at least two types of networks. The first is a standard network for business operations, such as customer service, billing, and the like. The other is a supervisory control and data acquisition (SCADA) network, which is responsible for the actual infrastructure.
SCADA security has been a concern for years. In 2009, someone used vulnerabilities in Sieman computer systems to cause physical damage to Iran’s nuclear program. The Department of Homeland Security’s critical infrastructure work focuses in large part on SCADA systems.
Unfortunately, the desire for more functions has led to closer ties between SCADA systems and other network infrastructure. These functions include remote administration, data gathering, and financial tasks. In fact, as local utilities across the country have decreased staff, the need for remote administration has increased. This increase led to a dangerous attack on a water treatment plant in Florida earlier this year. Luckily, a worker saw the intrusion and was able to stop the attack before the attacker was able to add dangerous levels of sodium hydroxide to the water supply.
Other infrastructure attacks have led to extensive damage. For instance, intruders were able to damage a blast furnace in Germany through remote access. As more of these systems are connected to external networks, more attacks will occur.
What Comes Next?
President Biden’s infrastructure bill was already subject to widespread criticism for its lack of cybersecurity funding. We expect that to change. We also anticipate Executive Orders addressing this infrastructure security. Congress was already considering mandatory breach and vulnerability reporting, and it will likely move faster.
This breach highlights the need for resiliency in networks of all types. Colonial Pipeline had to shut down its pipeline operations to mitigate a ransomware attack. Incident response plans should integrate with disaster recovery/business continuity plans, all of which should be tested at least annually. Sensitive systems and data should be segmented, but network testing should assume that the segmentation will fail.About the Author
Brandon Graves is a Partner at Centre Law & Consulting focusing on cybersecurity practices. He helps clients manage everything from crises related to security breaches, regulatory investigations, and disputes, to helping companies operate more securely in their normal course of business. Recently, Brandon assisted companies develop information security programs, prepare for certifications under the DoD’s Cybersecurity Maturity Model, and manage their supply chain risk. Learn more
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America’s Fragile Cybersecurity Infrastructure
Read More »Learn how Centre’s Cybersecurity Maturity Model Certification (CMMC) Accreditation Board (AB) Registered Practitioner Organization (RPO) designation help contractors.
May 11, 2021
Navigating the Cybersecurity Maturity Model Certification (CMMC)
Read More »Learn how Centre’s Cybersecurity Maturity Model Certification (CMMC) Accreditation Board (AB) Registered Practitioner Organization (RPO) designation help contractors.
March 28, 2021
Virginia’s New Data Privacy Law
Read More »On March 2, 2020, Virginia’s governor signed into law the Consumer Data Protection Act. Who does this law apply to and what does it mean for consumers? Understand what else must controllers do and what is the path forward.
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The post America’s Fragile Cybersecurity Infrastructure appeared first on Centre Law & Consulting.
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Getting Cloud Smart with the NITAAC CIO-CS GWAC
Many federal agencies lack an understanding of the various types of cloud services available on Government-Wide Acquisition Contracts (GWACs). As a result, agencies are still purchasing cloud services as an add-on to other contracts, something that the Office of Management and Budget (OMB) worries could lead to security challenges. What’s more, many federal workers lack the skillsets to effectively transition to a cloud-first environment.
While the benefits of cloud computing may be obvious – economy, flexibility, and speed – the path to getting there is less so. There is no one-size-fits-all cloud solution, and with the speed of emerging technology, it can be hard to keep current. That's where NITAAC can help.
Our GWAC contract holders have deployed cloud solutions for agencies as diverse as the USDA, the DoD and the State Department and learned a few best practices along the way. The following tips will prove invaluable to any agency contemplating moving to the cloud, especially during COVID-19 where agency missions are being accomplished remotely and outside traditional networks.
Tips to Successfully Deploying Cloud Solutions
1. Provide workforce training: As federal agencies continue to learn more about the cloud, ensure that the workforce is properly trained so you can get maximum value from your cloud purchase.
2. Have a cloud strategy in place before you purchase: Don’t procure cloud for the sake of procuring cloud. It is pertinent to have a cloud strategy in place to ensure long-term success.
3. Ensure the right decision-makers are involved: Decide who inside and outside the agency should be engaged, to ensure your strategy is aligned with workforce demands.
4. Ask hard questions regarding cost savings: Conduct an ROI analysis to ensure the benefits of going completely to the cloud are worth it for your agency.
And, once you have asked the hard questions, developed a strategy and are ready to make a purchase, NITAAC recommends keeping in mind the Cloud Smart Buying Strategies recommended by the OMB:
OMB Cloud Smart Buying Strategies
· Agencies should leverage the bulk purchasing power of the federal government through common contract solutions
· Agencies should attach specific performance metrics and expectations to service-level agreements
· Agencies should pay special attention to how providers treat high-value assets
The NITAAC Difference
Built with cloud acquisition in mind, the NITAAC CIO-CS GWAC is a full suite of information technology commodities and solutions capable of meeting any of the latest government technology trends, from cloud computing to cybersecurity to mobility. The offerings are always current, with a technology refresh process that enables product updates to be added as soon as they become available, not in days or weeks, but hours.
The CIO-CS team is committed to assisting customers, whether it means walking them through how to issue a Request for Quotation using the NITAAC Electronic Government Ordering System (e-GOS) or advising them on the Federal Acquisition Regulations for Indefinite-Delivery Contracts ordering prescribed in FAR Subpart 16.505.
NITAAC is Here to Help
The promise of the cloud is great. Cloud can transform the way agencies do their work by making them more agile, effective and efficient, not to mention by yielding significant cost savings. When your agency is ready to move to the cloud, NITAAC is here to help.
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In this episode, the Acquivores share their thoughts on the Contract Management Standard (CMS) and its usefulness. They also discuss DoD's gaffe in interpreting the CMS when developing the new DoD Contracting Competency Model.
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QuoteThe blast of flame that sent the black, insect-shaped projectile hurtling across the tarmac made me duck instinctively. It was as if the Devil himself were blasting his way straight from Hell.
Richard Helms, Director of Central Intelligence, 1966 - 1973
Many years ago, as a teen, I noticed a magazine on a barbershop table with an incredible black airplane on the cover. Huge engines on each side of a delta wing and a long thin fuselage with a cockpit near the front. I never forgot that airplane, it was an SR-71 Blackbird. Fifty-five years later, I wrote a brief article about the first Blackbird -- the A-12. It's the fastest and highest flying jet airplane that was ever built. Everything about the A-12 was incredible. A requirement was developed to:
- make an airplane so fast that nothing could catch it,
- make it fly so high that nothing could reach it, and
- make it nearly invisible.
Add to that the fact that no one knew how to do it, the materials didn't exist and it had to be done quickly. Groom Lake and Area 51 were built for the U-2 and then used for the A-12, Clarence "Kelly" Johnson and his Skunk Works built the U-2 and then built the A-12. The A-12 was a Central Intelligence Agency (CIA) spy plane just as the U-2 was originally.
----------------------------------------------------
In September 2020, I finished this 20 page article on the A-12 and placed it on the Analysis Page. I never thought to post it to the Wifcon Blog. I'm doing that now. The article took a long time to write because the building of the A-12 was incredible. Much of the material used to write this article was from 60 years ago and many potential sources confused the SR-71 story with that of the A-12 story. Others were flat out wrong. I used sources from people who worked on or flew the A-12. Fortunately, the CIA finally declassified some documents on the A-12 sometime after 2000--maybe 2007 or 2013--and made it available to the public. There wasn't much of it but it filled in some of the missing pieces.
There are many facts and stories about the A-12 that are of interest. One is that, in the A-12, the engines produced only about 20 percent of the power at crusing speeds. Most of the power came from from the pointed cones sticking out of the nacelles. Also, the A-12 ran its afterburners continuously. Then there were the 2 Buick "nailhead" V-8s that were conected to each other to "spool-up" and start each A-12 engine.
At the end of the article, I list the places you can still see an A-12 and added links to Google Maps. If you look closely at the maps, you will find an image of an A-12. I also list where the only YF-12A, a derivative of the A-12, is at. Now, the YF-12A is another story.
Please read: Faster Than A Speeding Bullet, Three Times Higher Than The Tallest Mountain.
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The CARES Act and FFCRA provide multiple options of economic relief for government contractors. They also provide multiple opportunities for confusion and errors. The number one takeaway: NO DOUBLE DIPPING!…
The post PPP Loans for Government Contractors – No Double Dipping appeared first on Left Brain Professionals Inc.
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In the 2019 National Defense Authorization Act (NDAA), Congress placed serious limitations on the Government’s use of Lowest Price, Technically Acceptable (LPTA) procurements. As a result, we should be seeing the Government issue more RFPs in which technology and innovation outweigh price. In these instances, contractors can seek a higher price but are expected to show substantial technological advantages. Two recent protests cases out of GAO illustrate the principles of technical proposal evaluation when technical factors are more important than price, and demonstrate the potential cost/technical trade-offs under these circumstances.
Read the full article here.
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ASHBURN, Virginia (September 19, 2018) The National Contract Management Association (NCMA)
President Charlie Williams Announces the New NCMA Chief Executive Officer
On behalf of the National Contract Management Association (NCMA) Board of Directors, I am pleased to announce the appointment of Kraig Conrad, CAE, CTP, as the new NCMA Chief Executive Officer. Kraig will formally take his position on November 1, 2018. Kraig joins NCMA with 20 years of association leadership experience. He most recently served as Chief Executive Officer of the Professional Risk Managers’ International Association (PRMIA), where he guided the PRMIA Board of Directors and its global network of more than 50,000 risk professionals to craft an enhanced vision for the group that includes a long-range strategic plan; new advocacy, certification, and training efforts; promoting the PRMIA brand; and enhancing membership benefits.
Prior to PRMIA, he held many roles at the National Investor Relations Institute, including Acting Co-Chief Executive Office and Vice President for Programs and Development. Kraig has also served as Research Lead for Strategy Practice at Corporate Executive Board, Director of Corporate Finance and Risk Management and Director of Strategic Alliances at the Association for Financial Professionals. He started his career as a Financial Analyst at Credit Suisse.
Kraig earned a Bachelor of Arts in Economics from the University of Southern California and a Master of Business Administration from the University of Illinois at Chicago. He is a Certified Association Executive and member of the American Society of Association Executives, and a Certified Treasury Professional and member of the Association for Financial Professionals.
“We are excited to have Kraig join our team. Kraig has demonstrated time and time again exemplary leadership skills and thoughtful approaches to the business of association management,” says NCMA President Charlie Williams. “We are confident that Kraig is the right person at the right time for NCMA as we continue the NCMA journey that was begun over 59 years ago. As our new CEO, Kraig’s association leadership skills will be critical to the Board of Directors as it charts the association’s strategic path forward and seeks to further elevate the association’s relevance to the profession it serves.”
The selection of Kraig concludes a national search supported by Staffing Advisors, a Washington, DC-based executive search firm. Kraig shares the NCMA dedication to professional growth and the educational advancement of acquisition and contracting professionals worldwide. Please join us in congratulating Kraig as we welcome him to the organization.
Founded in 1959, the National Contract Management Association (NCMA) is the world's leading professional resource for those in the field of contract management. The organization, which has over 18,000 members, is dedicated to the professional growth and educational advancement of procurement and acquisition personnel worldwide. NCMA strives to serve and inform the profession it represents and to offer opportunities for the open exchange of ideas in neutral forums. For more information on the association, please visit www.ncmahq.org.
Contact: Amanda Gillespie, Marketing & Communications Director agillespie@ncmahq.org (571) 382-1127
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Acquisition Reform ― It’s Soylent Green!
In the 1973 futuristic mystery thriller Soylent Green there’s an exchange between Detective Thorn (Charlton Heston) and Hatcher (Brock Peters):
Det. Thorn: Ocean's dying, plankton's dying . . . it's people. Soylent Green is made out of people. They're making our food out of people. Next thing they'll be breeding us like cattle for food. You've gotta tell them. You've gotta tell them!
Hatcher: I promise, Tiger. I promise. I'll tell the Exchange.
Det. Thorn: You tell everybody. Listen to me, Hatcher. You've gotta tell them! Soylent Green is people! We've gotta stop them somehow!
Acquisition Reform is like Soylent Green, it’s people. I don’t mean the Congresscritters, like Representative Thornberry and Senator McCain, and their Committees. I don’t mean the Administrator of the Office of Federal Procurement Policy, whoever he or she may turn out to be. I don’t mean the acquisition and procurement policy wonks in the Pentagon and elsewhere.
This past week (i.e., 14 – 20 May 2017) was a big week for the professional acquisition reformers:
The Advisory Panel on Streamlining and Codifying Acquisition Regulations issued the “Section 809 Panel Interim Report” (May 2017). Read the 60 page report, and formulate your own opinion if it will fix the problems in Government acquisition. Frankly, I think it will take more than getting rid of the $1 coin requirement, but I could be wrong.
Representative William McClellan "Mac" Thornberry introduced H.R. 2511 “To amend Title 10, United States Code, to streamline the acquisition system, invest early in acquisition programs, improve the acquisition workforce, and improve transparency in the acquisition system.” The short title on that would be ‘‘Defense Acquisition Streamlining and Transparency Act’’. (sic) Read the 80 page resolution, and formulate your own opinion if it will fix the problems in Government acquisition. [If we have Representative Thornberry, can Senator McCain be far behind? (Or, is that FAR behind?)]
A (moderately) reliable source has told me that the Department of Defense will be leaving Better Buying Power behind, now that Mssrs. Carter and Kendall are gone. But, wait, acquisition reform has not been abandoned. Apparently, it will go on, but now as “Continued Acquisition Reform.” Presumably that will be abbreviated as “CAR.” Continued Acquisition Reform should not be confused with Continuous Acquisition Reform nor Continued Acquisition Reform, nor Continuous Process Improvement, for that matter, those would all be bygone days.
The professional acquisition reformers have time and again passed legislation and issued regulations to “fix” the acquisition process. This fiscal year (2017) Title VIII (i.e., Acquisition Policy, Acquisition Management, and Related Matters) of the National Defense Authorization Act (NDAA) had 88 sections. The year before, 77 items. And, yet, Representative Thornberry and Senator McCain believe there is a need for a lot more acquisition reform legislation this year. Title VIII has included over 500 sections over the last ten years, but we still need more. What we have at issue here is what is referred to as the Law of the Instrument. Although he was not the first to recognize the Law, Abraham Maslow is probably the one best remembered for articulating it, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." For those of us on the receiving end of the Congressional output that would be, “I suppose it is tempting, if the only tool you have is a legislation, to treat everything as if it were a bill." I suspect, although I cannot be positive, that most, if not all, of the folks doing the legislating have never had to use the Federal Acquisition Regulation (FAR) to buy anything. If they had, they would not be nearly so cavalier in tossing around statements about how bad the acquisition process is, and how more legislation is the answer.
Will such legislation solve the acquisition problem? According to the Honorable Frank Kendall the answer is a resounding “NO.”
QuoteFrank Kendall, then undersecretary of defense for acquisition, technology and logistics (USD(AT&L)), condemned, or “slammed,” or “blasted,” such legislation.
Frank Kendall, who has served as the Pentagon's top weapons buyer since October 2011, blasted Congress's acquisition reform efforts, which he said almost inevitably create more bureaucracy and regulation.
Kendall called legislative action “an imperfect tool to improve acquisition results.”
“It is not a good instrument to achieve the results that I think the Hill is after, but they keep trying,” he said. “To be honest, I believe that as often as not, what they do does not help. In some cases, it has the opposite effect.”
Bloomberg Federal Contracts Report, “Outgoing DOD Weapons Buyer Slams Congress’ Acquisition
But, in all fairness, it’s not just them. Since we last had a reissuance of the FAR in March 2005, the FAR Council has brought us 95 Federal Acquisition Circulars (FACs) to update and expand the FAR. Since we last has a reissuance of the Defense Federal Acquisition Regulation Supplement (DFARS) in January 2008, the Defense Acquisition Regulations Council has brought us 211 Defense FAR Supplement Publication Notices (DPNs). With all of that, there are still dozens of open FAR and DFARS cases yet to be heaped on our plate. Although legislation may have been a major root cause of much that change activity, we can probably offer some of our “thanks” to the President, OMB, OFPP, GAO, Boards of Contract Appeals and Courts. Admittedly, now and again, a good idea actually gets slipped into the regulations. [Note: The number of FACs and DPNs issued in 2017 was artificially suppressed as a result of Executive Order 13771 – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. The two councils (i.e., FAR Council, Defense Acquisition Regulations Council (DAR Council) and the Civilian Agency Acquisition Council (CAA Council)) withheld publication of a large number of cases while policies and procedures were “sorted out.”]
[Note: Refer to Augustine’s Laws, Law Number XLIX: Regulations grow at the same rate as weeds.]
And, if that were not enough, we have institutional acquisition reform (e.g., policy letters, memoranda, directives, instructions, guidebooks, handbooks, manuals). Everyone seems to want to get into the act in one way or another. It is interesting to note, however, that the “perpetrators” of this institutional acquisition reform do not see it in the same light as acquisition reform legislation.
But, I recognize the lesson that King Canute was trying to teach when, in the apocryphal anecdote, he had his throne taken to the sea and ordered the tides not to come in. They did anyway. Legislators will legislate, it’s what they do. Regulators will regulate, it’s what they do. Policy makers will policymake, it’s what they do. None of them will willingly give up their rice bowls.
Let’s get back to Soylent Green.
Quote“Acquisition improvement is going to have to come from within. It is not going to be engineered by Hill staffers writing laws for us,” Kendall said. “It's going to be done by people in the trenches every day, dealing with industry, trying to get incentives right, trying to get the performance right, trying to set up business deals and enforce them, set reasonable requirements in our contracts.”
Bloomberg Federal Contracts Report, “Outgoing DOD Weapons Buyer Slams Congress’ Acquisition Fixes,” Andrew Clevenger, January 17, 2017
Better Buying Power (BBP)? The Honorable Mssrs. Carter and Kendall were responsible for BBBP, in all its iterations. Did that rise up from the trenches? Or, was it handed (or pushed) down from above? Isn’t this a bit like the pot calling the kettle black? If you will permit the adding of a single letter to a line of Hamlet by William Shakespeare, "The laddy doth protest too much, methinks."
[Note: Refer to Augustine’s Laws, Law Number L: The average regulation has a life span one-fifth as long as a chimpanzee's and one-tenth as long as a human's, but four times as long as the official's who created it.]
Well, whichever way you look at it (i.e., upside, downside, sidewise) it is all more work for the acquisition professionals that must do the daily work of buying supplies and services for the Government. If you want to have an idea of how all of this acquisition reform weighs us down, then take a look at William Blake’s illustration “Christian Reading in His Book” for John Bunyan’s The Pilgrim's Progress. It will depend on how many pixels the image you find has, but it looks to me that he is reading the FAR.
Who are the Soylent Green? Not the policymakers, but the people in the trenches, doing the hard work of acquisition on a daily basis, day in and day out, week in and week out, month in and month out, year in and year out. The contract specialist, contract negotiator, contract administrator, cost or price analyst, purchasing agent or procurement analyst just trying to get the job done. These are, for the most, part the unsung heroes and heroines of acquisition reform. These are the ones who, through innovation and personal initiative reform that acquisition process, one acquisition at a time. And, if we are lucky, or clever, are able to pass successes along to others.
As acquisition professionals, we must pass on our successes, and failures, to others, so that they may join in the fruits of success, and avoid the pitfalls of failure. You cannot count on “Lessons Learned,” alone. How often do lessons learned go unread and unlearned? You cannot count on “Best Practices,” alone. How often do best practices, go unread and unpracticed? Share with others. Share quickly. Share often. Share wherever you can.
A final thought.
QuoteSo what is to be done? By and large the answer to that question is well understood—in fact, many friends of mine such as former Deputy Secretary of Defense David Packard; the head of the Skunk Works Kelly Johnson; Air Force General Bennie Schriever; Admiral Wayne Meyer and Army General Bob Baer, among others, were providing the answer decades ago. What is required is simply Management 101. That is, decide what is needed; create a plan to provide it, including assigning authority and responsibility; supply commensurate resources in the form of people, money, technology, time and infrastructure; provide qualified leadership; execute the plan; and monitor results and strenuously enforce accountability. Ironically, little of this requires legislation—but it does require massive amounts of will . . . from all levels of government. Unfortunately, many of the problems are cultural—and it is difficult to legislate culture. But there is much that could be done.
Views from the Honorable Norman R. Augustine
The Acquisition Conundrum
DEFENSE ACQUISITION REFORM: WHERE DO WE GO FROM HERE? A Compendium of Views by Leading Experts, STAFF REPORT PERMANENT SUBCOMMITTEE ON INVESTIGATIONS UNITED STATES SENATE (October 2, 2014)
The absolute final thought. I’m sorry, I can’t help myself. I don’t care about King Canute: Don’t legislate. Don’t regulate. Just leave us alone to do our work as best we can.
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The Government's Duty of Good Faith and Fair Dealing
The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor. Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 N&CR ¶ 22), I expressed the fear that the reasoning would be subsequently applied to procurement contracts.
My fear was realized in a construction contract case, Metcalf Construction Co. v. U. S., 102 Fed. Cl. 334 (2011). In that decision, the judge described eggregious conduct on the part of the government officials that would have been held to be a breach of the implied duty of good faith and fair dealing under many earlier cases. However, the judge held that under the Precision Pine standard, the contractor had not proved that the actions were specifically targeted at the contractor. In the February 2012 Nash & Cibinic Report (26 N&CR ¶ 9), I criticized this decision but stated that I believed that even if the decision was affirmed on appeal, most contracting officers would not take this as a signal that the proper way to administer contracts was to abuse the contractor.
Fortunately, a panel of the Federal Circuit has reversed the decision, Metcalf Construction Co. v. U. S., 2014 WL 519596, 2014 U.S. App. LEXIS 2515 (Fed. Cir. Feb. 11, 2014). The court held that the lower court had read Precision Pine too narrowly and that “specific targeting” was only one example of the type of conduct that could constitute a breach of the implied duty of good faith and fair dealing. Importantly, the court also rejected the government’s argument that this “implied duty” only could be found when it was footed in some express provision of the contract. The court concluded that the correct rule was only that the express provisions of a contract had to be examined to ensure that they had not dealt with the conduct of the government; for if they had, they would override the implied duty.
This leaves us in a tenuous position with regard to the views of the Federal Circuit. We have one panel in Precision Pine stating a narrow rule, another panel in Metcalf Construction stating the traditional rule, and a third panel in Bell/Heery A Joint Venture v. U.S., 739 F.3d 1324 (Fed. Cir. 2014), ruling in favor of the government because the contractor had not alleged facts showing that the government had “engaged in conduct that reappropriated benefits promised under the contract” (which is part of the Precision Pine reasoning). Thus, it is difficult to state where the judges of the Federal Circuit stand. Hopefully, the court will agree to take either Metcalf Construction or Bell/Heery to the full court for an en banc review of the issue.
I’ve never been sure why the Department of Justice has so vigorously argued that the government should not be held to the same standards of conduct as a commercial buyer. Of course, persuading the courts and boards that a narrower standard should be applied to the government is a way to win litigated cases. But, in my view, encouraging abusive or non-cooperative conduct hurts the government as much as it hurts its contractors. I have taught for many years that in the long run the government benefits from actions that show industry that it is a fair contracting partner. A line of published judicial decisions that demonstrates that the government is not such a partner is one more of the many messages that tell companies they should sell to the government only when they can find no other customer. Surely, this is not the message that government agencies in need of products and services on the commercial marketplace want to convey to companies that can provide those products and services.
Many years ago when I came to Washington to work in the field of government contracting, I concluded that there was one major advantage to being on the government side of the negotiating table. That advantage was that I was under no pressure to extract money from the contractor by unfair bargaining or unfair contract administration. To me fairness was an integral part of the job of a government employee. I still believe it and teach it. Thus, no matter what the outcome of the good faith and fair dealing litigation, I will continue to urge government employees that fair treatment of contractors is the only way to go.
Ralph C. Nash
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Wifcon.com: My Legacy; My Albatross
When I get older, losing my hair
Many years from now . . . .
When I'm Sixty-Four
John Lennon, Paul McCartney
Shortly after we celebrate our country's independence on July 4, 2013, Wifcon.com will end its 15th year on the internet. With much help from the Wifcon.com community, I've raised a growing teenager. When I started, I was 49 and my hair was so thick that I often shouted ouch or some obscenity when I combed it. Wifcon.com has existed in 3 decades and parts of 2 centuries. During that period, I've updated this site for every work day--except for the week or so when I called it quits. I remember the feeling of relief. I thought it was over. However, many of you convinced me to bring it back. Yes, just when I thought I was out, many of you pulled me back in.
As I mentioned in an earlier post, someone once told me that Wifcon.com was my legacy. I once had great hopes for a legacy. Perhaps, a great saxophone player belting out a solo in front of thousands of fans and seeing them enjoying themselves. Instead, here I sit in my solitude looking for news, decisions, etc., to post to the home page. For many years, my dog Ambrose kept me company. Now, my dogs Blue Jay and Lily stare at me and look for attention. With my sights now set realistically, I accept that Wifcon.com is my legacy. It's the best I could do.
Every now and then, I receive an e-mail from someone thanking me for Wifcon.com. They tell me how it helped their careers. These e-mails keep me and Wifcon.com going.
Send me a postcard, drop me a line,
Stating point of view
Indicate precisely what you mean to say
Yours sincerely, wasting away
Give me your answer, fill in a form
When I'm Sixty-Four
John Lennon, Paul McCartney
The thoughts in these e-mails won't let me quit. I still search each night for something to add to the site in hopes that it will increase your knowledge. If I find something new, I still get excited. Often, it feels like a self-imposed weight around my neck. What started as a release for my imagination has evolved into a continuing and daily addition to the contracting community. In the evenings, it is as if I'm Maillardet's automaton. I head over to my office, sit before the computer, and update. Then I send the updated pages to Virginia where it is accessed from around the world. Maybe I'm addicted to Wifcon.com; maybe I was born with the Wifcon.com gene.
If you haven't added the numbers, I'm 64 now. Wifcon.com and I are showing our age. I can comb the top of my head with my fingers. The ouches and other obscenities caused by my once thick hair are gone. A recent upgrade to the discussion forum requires that I turn the "compatibility mode" off on my browser. In that mode, I realized that Wifcon.com is ugly. I have current software for the needed future redo of this site.
I am Wifcon.com; Wifcon.com is me. It is my legacy and my albatross. As always, thank you for your support.
You'll be older too,
And if you say the word,
I could stay with you.
When I'm Sixty-Four
John Lennon, Paul McCartney
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