DFARS 252.223-7999, Ensuring Adequate COVID Safety Protocols for Federal Contractors

Jamaal Valentine said:

Does DFARS 252.223-7999, Ensuring Adequate COVID Safety Protocols for Federal Contractors, apply to solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items (services)?

I find no language in the reference provided below that speaks to commercial item acquisition, either way.  There is a reference on where to pose a question such as yours.  I suspect a commercial item contract is a covered contract, noting any exception with regard to SAT threshold.

https://www.acq.osd.mil/dpap/policy/policyvault/USA001998-21-DPC.pdf

A follow-on question to the memorandum contact might be if it does apply  can it be tailored in or out based on market research of a particular commercial industry?

@C Culham

41 USC 1906 and 1907 limit what new laws (Executive Orders are not law, but have the force and effect of law).

“A provision of law described in subsection (d) that is enacted after October 13, 1994, shall be included on the list of inapplicable provisions of law required by paragraph (1) unless theCouncil makes a written determination that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of commercial products or commercial services from the applicability of the provision.” (41 USC 1906)

Also, DFARS 212.301 and the DFARS convention govern what clauses are applicable to commercial item acquisitions. For example, DFARS prescriptions usually say something like “Use the clause at 252.XXX-XXXX, Title, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items…”.

Jamaal Valentine said:

(Executive Orders are not law, but have the force and effect of law).

Not necessarily.

Generally, see Congressional Research Service, Executive Orders: An Introduction, March 29, 2021.

https://crsreports.congress.gov/product/pdf/R/R46738

See also Manheim and Watts, "Reviewing Presidential Orders," University of Chicago Law Review (Nov. 2019), 86 U. Chi. L. Rev. 1743:

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As a historical matter, presidents--seizing on their constitutional and statutory powers--have issued many different kinds of presidential orders to try to achieve many different aims. Some of these orders have been labeled as memoranda, others as proclamations, and still others as executive orders. Indeed, precisely because presidential orders can take so many different forms, it can be difficult to describe them in a general manner. At the risk of oversimplification, however, we believe that the discrete instructions contained within presidential orders can be grouped loosely into two largely distinct (though at times overlapping) categories.

The first category involves specific instructions found in presidential orders that carry the force and effect of law--much like how legislative rules issued by agencies carry the force and effect of law. We refer to these throughout this Article as “legally binding orders.” Often these sorts of orders directly regulate private actors outside of the executive branch and alter legal rights or obligations. As an example, in 1934, President Franklin D. Roosevelt issued a proclamation that made it unlawful for private actors in the United States to sell arms to Bolivia or Paraguay. The federal government later criminally indicted a company for violating this presidentially imposed prohibition. Another example can be found in President Richard Nixon's 1971 order attempting to stabilize the economy by, among other things, freezing prices and wages, including those of private businesses, across the country. This order made its legal effects clear, announcing that certain violations of the order could result in fines of up to $5,000 per violation. Presidents have issued these sorts of legally binding orders throughout the nation's history, generally by relying on some combination of their constitutional and statutory powers.117

The second category involves instructions embedded within orders that do not themselves alter legal rights or obligations, even though they may well prompt subsequent executive branch action that does have legal effect. We refer to these throughout this Article as “nonlegally binding orders.” Orders that fall into this second category often operate as a presidential communication tool, enabling the chief executive to tell executive-branch officers what to do, or not to do, as they carry out their duties and administer the nation's laws. For example, if a president wishes to raise the wages of low-paid workers, he lacks the power simply to increase the nation's statutorily set minimum wage. But he might seize on powers already granted to him by Congress and the Constitution to issue an order seeking to achieve a similar, albeit more limited end. For example, he might issue a written order, directed at federal agencies entering into new government contracts, that requires each such contract to include provisions ensuring contractors will pay their workers an increased minimum wage.

https://chicagounbound.uchicago.edu/uclrev/vol86/iss7/5/

For an in-depth discussion of executive orders and the force and effect of law, see Raven-Hansen, "Making Agencies Follow Orders: Judicial Review of Agency Violations of Executive Order 12,291," _Duke Law Journal (_April 1983), 1983 Duke L.J. 285. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2836&context=dlj

@Vern Edwards

Thank you for the resources and education.

Jamaal Valentine said:

Does DFARS 252.223-7999, Ensuring Adequate COVID Safety Protocols for Federal Contractors, apply to solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items (services)?

I would say no, because the underlying policy was not published for comment in accordance with 41 U.S.C. 1707.

Don Mansfield said:

I would say no, because the underlying policy was not published for comment in accordance with 41 U.S.C. 1707.

Is that the Administrative Procedure Act?

With respect to The original question, it applies to solicitations and contracts for services .  I didn’t see any distinction between commercial and non-commercial contracts for services in the prescribing documents or in the clause itself.

Jamaal Valentine said:

Is that the Administrative Procedure Act?

No. The Administrative Procedure Act (APA) is at 5 U.S.C. 551 et seq.

41 USC 1707, "Publication of proposed regulations," provides in part as follows:

Quote

(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.

The rule-making provisions of the APA do not apply to matters pertaining to contracts. See 5 USC 553(a)(2). However, 41 USC 1707 requires that agencies follow the public notice and comment requirements of those procedures under certain circumstances.

Jamaal Valentine said:

Does DFARS 252.223-7999, Ensuring Adequate COVID Safety Protocols for Federal Contractors, apply to solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items (services)?

According to an unofficial communication from DOD: "[T]here is no exclusion for commercial services."

NASA has expressly applied the E.O. to commercial services. See Procurement Class Deviation 21-03A, Oct. 1, 2021, Updated Nov. 8, 2021, CLASS DEVIATION FROM THE FEDERAL ACQUISITION REGULATION (FAR) FOR EXECUTIVE ORDER 14042, ENSURING ADEQUATE COVID SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS:

Quote

ACTION REQUIRED BY CONTRACTING OFFICERS: Effective immediately and no later than October 15, 2021, for commercial and non-commercial acquisitions that include requirements for services, supplies, research and development, construction, and end-items, insert the attached clause in the following:

• All new solicitations and resulting contracts, orders, and blanket purchase agreements (BPAs), and cooperative agreement notices and resulting cooperative agreements above the micro-purchase threshold (MPT) issued on or after the effective date of this PCD;

• All existing contracts, orders, and BPAs, and cooperative agreements, above the simplified acquisition threshold (SAT) via a bilateral modification; and

• All solicitations above the MPT issued prior to the effective date of the PCD.

Emphasis added.

The attached clause reads as follows:

Quote

[52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors. ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS (DEVIATION 21-03)

(a) Definition. As used in this clause - United States or its outlying areas means— (1) The fifty States; (2) The District of Columbia; (3) The commonwealths of Puerto Rico and the Northern Mariana Islands; (4) The territories of American Samoa, Guam, and the United States Virgin Islands; and (5) The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.

(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021 (published in the Federal Register on September 14, 2021, 86 FR 50985).

(c) Compliance. The Contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https://www.saferfederalworkforce.gov/contractors/.

(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the micro-purchase threshold, as defined in Federal Acquisition Regulation 2.101, performed in whole or in part within the United States or its outlying areas.

(End of clause)]

You can find the entire text of the class deviation at https://www.hq.nasa.gov/office/procurement/regs/pcd/pcd21-03A.pdf.

I do not know what other agencies are doing.

Vern Edwards said:

According to an unofficial communication from DOD: "[T]here is no exclusion for commercial services."

We have a new FAC forthcoming in 48 CFR and it will result in a specific definition for "commercial services".  The definition includes:

Quote

(2) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions.

Emphasis added.  I want to know if the statutory construction here interferes with any forthcoming Proposed Rule the regulatory councils plan to put in the Federal Register adding the Executive Order's resulting clauses to the FAR/DFARS and applying its prescription to "commercial services".  Because FAR 52.223-99 / DFARS 252.223-7999 is not a standard term and condition.

Lets assume the currently Interim Final Rule by OSHA stands, requiring vaccines if an employer has greater than 100 employees.  That makes it a standard commercial T&C, right?  Not for truckers.  Not for commercial firms with less than 100 employees.  There are 4000+ comments submitted to the Interim Rule already on day 5 of its publishing - we can assume the list of excepted firms will only grow with time.  How will the Contracting Officer know not to insert FAR 52.223-99 / DFARS 252.223-7999 in the commercial contracts awarded to these OSHA-excepted firms?

I worry this will become a nanny state scenario for COs.  And I am no Mrs. Doubtfire.

WifWaf said:

That makes it a standard commercial T&C, right?

No, it's a regulation that applies to the public--not by operation of a contract, correct?

@Don MansfieldLet's define "standard commercial term and condition".  In this case the Occupational Safety and Health Act of 1970 placed the responsibility for protection of virtually all private sector employees on the Department of Labor, through DOL's creation and enforcement of standards of safety and health in the workplace.  The DOL and other agencies had previously only used the Public Contracts Act of 1935 to enforce uranium mining health and safety standards, because that type of work was done entirely by government contract.  Now that OSHA was stood up, the Agency's standards had to be met by all employers or else its enforcement would cost business dearly.  Source: https://www.dol.gov/general/aboutdol/history/lbjsym98

Standard commercial T&Cs in this case are developed by a company's ownership and placed in those contracts where the OSHA standard applies, to ensure the consideration due from the buyer allows the seller to meet the health and safety standards OSHA plans to enforce.  Is that your understanding?  OSHA allow companies to search their standards here: www.osha.gov/laws-regs

I am interested in this but am not educated in this.

WifWaf said:

Standard commercial T&Cs in this case are developed by a company's ownership and placed in those contracts where the OSHA standard applies, to ensure the consideration due from the buyer allows the seller to meet the health and safety standards OSHA plans to enforce.

I don't understand that sentence, especially the part that begins "to ensure the consideration due from the buyer..." What do you mean by "the consideration due from the buyer"? Do you mean the price?

Are you saying there are commercial contracts that include standard clauses that refer to OSHA requirements and that apply to the seller's operations? For instance, are you saying that there are commercial contracts that include clauses that incorporate OSHA Standard 1910, Subpart D, Walking-Working Surfaces?

Why would a commercial buyer care about that?

Every requirement on a business has its own potential risk increase.  Risk is reflected in price.  In this case OSHA standards are probably tucked into overhead without their own contract clause but that’s not the buyer’s concern because it’s a commercial contract.  The buyer doesn’t need to care about that, but they buy it as a package deal nonetheless.  They buy a portion of the risk of their contractor’s employee getting hurt on the job, or, if the Interim Final Rule stands, getting caught lying about their vaccine status.

WifWaf said:

Every requirement on a business has its own potential risk increase.  Risk is reflected in price.  In this case OSHA standards are probably tucked into overhead without their own contract clause but that’s not the buyer’s concern because it’s a commercial contract.  The buyer doesn’t need to care about that, but they buy it as a package deal nonetheless.  They buy a portion of the risk of their contractor’s employee getting hurt on the job, or, if the Interim Final Rule stands, getting caught lying about their vaccine status.

@WifWafThat mishmash of sentences amounts to utter nonsense.

WifWaf said:

Standard commercial T&Cs in this case are developed by a company's ownership and placed in those contracts where the OSHA standard applies, to ensure the consideration due from the buyer allows the seller to meet the health and safety standards OSHA plans to enforce.  Is that your understanding?

No, it's not. I can't really tell what you're talking about.

If you don't understand something, you should ask questions. You shouldn't try to explain it like you understand, then ask if you're right.

On 11/10/2021 at 3:17 PM, Don Mansfield said:

No, it's a regulation that applies to the public--not by operation of a contract, correct?

I think we can safely say that is correct - I was out on a limb.

Is the statutory construction of the definition of “commercial service”, in any other way, a legal basis for a commercial service contract not to include DFARS 252.223-7999?

WifWaf said:

Is the statutory construction of the definition of “commercial service”, in any other way, a legal basis for a commercial service contract not to include DFARS 252.223-7999?

What's the legal basis for including the clause?

Don Mansfield said:

What's the legal basis for including the clause?

The DOD class deviation, which is based on the executive order, neither of which states an exception for commercial items.

In my view, this thread of posts does not belong under the Forum topic "Polls." I believe it is more properly related to the COVID topic, and should me moved there. I'm going to request that Bob move it.

here_2_help said:

In my view, this thread of posts does not belong under the Forum topic "Polls." I believe it is more properly related to the COVID topic, and should me moved there. I'm going to request that Bob move it.

I’m not against relocating it…especially, since I didn’t get the ‘yes’/‘no’ voting button options that I wanted. (I originally wanted a quick and easy view of how many votes for ‘yes’ and how many for ‘no’.)

On 11/13/2021 at 9:09 AM, Vern Edwards said:

The DOD class deviation, which is based on the executive order, neither of which states an exception for commercial items.

Do you think that the DoD class deviation and the executive order have the force and effect of law?

Don Mansfield said:

Do you think that the DoD class deviation and the executive order have the force and effect of law?

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).

Does a contractor's voluntary bilateral acceptance of the new clause in its contract overcome or obviate the question of the E.O.'s legality?

The E.O. is instruction from the President to federal agencies.  If a contracting officer refuses to include the clause in a contract, and faces discipline because of his or her refusal to follow instructions, he or she might claim the E.O. is illegal in defense to the disciplinary action.  Or if a contracting officer unilaterally adds the clause to an existing contract without allowing for any consideration or impact, the contractor might object to the contracting officer's unilateral modification in a Disputes matter without challenging the legality of the E.O.  

I guess I am wondering how the legality of the E.O. makes a difference.  If a contractor thinks it is illegal, it should not agree to the bilateral modification to include the clause in its contract.  But once it has accepted the modification, well, does it matter?

"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 think that early in this discussion, someone said that there's no coercion. After all, the contractor has a choice. 

Sounds to me like the same kind of choice you have when being shaken down for protection money. "Nice little company you have here. Be a shame if you had to go out of business."

ji20874 said:

But once it has accepted the modification, well, does it matter?

It should matter to the Government, because a court or board may not enforce the clause. See, for example, La Gloria Oil & Gas Co. v. U.S., 56 Fed. Cl. 211 (2003).

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

The scenarios are unlimited at this point.....

"I did market research for my labor intensive service."

"It meets the definition of commercial item - service based on the market research."

"Market research confirms H2B workers are not required to have vaccine when entering US."

"The major labor intensive service industry that I canvassed for the particular NAICS code does not require COVID vaccine for employees."

"Pursuant FAR 12.302 the clause is not  implementing listed statutory requirements, is an E.O. and not a statutory requirement, and is inconsistent with customary commercial practice."

"I intend to not put the clause in the solicitation and contract."

Don Mansfield said:

It should matter to the Government, because a court or board may not enforce the clause.

Isn't the President the chief executive of the Government?  In a situation where there is some litigation risk, isn't it the responsibility of the executive (rather than the employee) to make the decision to proceed or to adjust?  I am not seeing that contracting officers, as employees, need to be deciding the legality of the E.O. as a prerequisite to following instructions to implement the E.O.  That's part of why I am wondering why it matters.  If the boards or courts won't enforce the clause, well, the government will need to cross that bridge when it gets there.

ji20874 said:

I am not seeing that contracting officers, as employees, need to be deciding the legality of the E.O. as a prerequisite to following instructions to implement the E.O.

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/.

Quote

To protect the reputation of your agency and its leaders you need to know when and how to disobey. You read that correctly. There is a high level competency called intelligent disobedience. It is rarely taught in leadership development programs. It should be. Here’s why....

* * *

We think of dogs as paragons of loyalty. We can think of guide dogs as the best of man’s best friends: they serve, support and protect. Both their obedience and disobedience are acts of loyalty. When needed, intelligent disobedience in public service is also an act of loyalty to the leadership of our agencies and to the citizens we serve.

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.

Yeah, but let's not go to the Nazi example of following orders -- that comparison seems inapt by several orders of magnitude and by every perspective.

The gaping holes the EO left open on how to implement is what would have for me as a CO , raised questions and today do, question.  The legality is a side-bar on what might be faced in the future should it be found not legal.   Not sure it is a a question of does it matter, but more of the reality that isn't the whole thing just another edict on the perennial pile of "it depends!"

ji20874 said:

Yeah, but let's not go to the Nazi example of following orders -- that comparison seems inapt by several orders of magnitude and by every perspective.

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.

Vern Edwards said:

I disagree. It's perfect apt.

We disagree, Vern.  I certainly do not see bilaterally modifying a contract to include a vaccine mandate to be comparable to shooting or gassing Jewish civilians by the thousands in a day and so forth.  I do not see a contracting officer as comparable to a SS camp commandant or other Nazi war criminals. 

I'm not advocating for the vaccine mandate.  But I am unpersuaded that it is illegal -- I have to rely on the courts for that judgment (unlike the Nazi war criminals, who knew that they were doing wrong).  Unlike the OSHA mandate, the contractor mandate has not been enjoined by the courts.  This article might be of interest:  news.bloomberglaw.com/daily-labor-report/why-contractor-vaccine-mandate-is-tough-to-challenge-in-court.  

But there are two big differences beside the comparison of a contract modification with cold-blooded and systematic murder -- the contracting officer who feels the order is illegal can ask to be excused from that task without any harm to him- or herself or his or her civil rights, and the contractor certainly still has redress to our still-functioning and still-independent courts if it thinks the clause is unfair.

Not only do I think the comparison is inapt, I think it approaches repugnant.  My feeling is my choice -- I own it.

ji20874 said:

I certainly do not see bilaterally modifying a contract to include a vaccine mandate to be comparable to shooting or gassing Jewish civilians by the thousands in a day and so forth.  I do not see a contracting officer as comparable to a SS camp commandant or other Nazi war criminals.

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.

Quote

Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing. He is not a good man who, without a protest, allows wrong to be committed in his name, and with the means which he helps to supply, because he will not trouble himself to use his mind on the subject.

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.

If the policy will be implemented by bilateral modification to existing contracts, then it is voluntary. The contractor should have the option to reject it- without any coercion, backlash, retribution or other negative consequences.

By the way, I was taught that German citizens or soldiers often didn’t have the option to openly disagree…

joel hoffman said:

If the policy will be implemented by bilateral modification to existing contracts, then it is voluntary.

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:

Quote

The ever-increasing extent of economic interdependence has resulted in certain types of interference causing grave injury to individual parties and to their business and property interests. This change has been felt in the law of duress and has led to an overall liberalization of its rules and the expanded doctrine of economic duress or business compulsion, as it is often described. Many significant precedents have contributed to the development and evolution of the expanded concept of economic or business duress that is probably the most significant development affecting the doctrine of duress during the last century...

I don't know much about this. I've only read a few things, enough to keep me from making firm pronouncements.

Vern Edwards said:

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.

I’m just saying how a bilateral action is supposed to be. If the government retaliates or takes other adverse action against a firm for not agreeing to a bilateral mod that could severely impact its business operations and employees, then it needs to seek legal counsel.

Vern Edwards said:

Let's be clear. We don't know that the mandate is illegal or otherwise wrong.

Right.  Thus, any comparison of a contracting officer negotiating a bilateral modification of the sort we're talking about with Nazis who justified no-doubt war crimes because they were following orders is inapt.

I hope every contracting officer will faithfully perform his or her responsibility and negotiate the clause into contracts as instructed.  I also hope contractors will consider any additional risks they might face and include them in the negotiations as their individual and/or market sector leverage allows.  If there are indications that there may be future difficulties in obtaining competition or performance in certain market sectors, I hope those concerns are raised through agency channels so that any needed policy adjustments can be made.

I have been trying to discern if there will be impacts in certain market sectors, and I have not heard a single whisper about contractors being unable or unwilling to sign the bilateral modifications, or even asking for a contract price or other adjustment to cover risks (other practitioners may be hearing differently -- if s, I hope they will share).  If all of an agency's contractors voluntarily sign the mods, and do so without any reservation of rights, then there should be no problems later for that agency.  If a contractor does feel duress, it might consider seeking legal counsel and perhaps relief under the Disputes clause.  That's how the process works, and our boards and courts are still functioning fairly, from what I can tell.

ji20874 said:

Thus, any comparison of a contracting officer negotiating a bilateral modification of the sort we're talking about with Nazis who justified no-doubt war crimes because they were following orders is inapt.

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.

ji20874 said:

I have been trying to discern if there will be impacts in certain market sectors, and I have not heard a single whisper about contractors being unable or unwilling to sign the bilateral modifications, or even asking for a contract price or other adjustment to cover risks (other practitioners may be hearing differently -- if s, I hope they will share).

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/

joel hoffman said:

I’m just saying how a bilateral action is supposed to be. If the government retaliates or takes other adverse action against a firm for not agreeing to a bilateral mod that could severely impact its business operations and employees, then it needs to seek legal counsel.

See Harley, "Economic Duress and Unconscionability: How Fair Must the Government Be?" Public Contract Law Journal, October 1988, 86-87:

Quote

The heart of economic duress is that the terms of the other party must have been involuntarily accepted by the party asserting the defense. Thus, in Paccon duress was found because ‘the contractor was pressured and coerced against its will into signing the three modifications' in question. Or, put another way, in Beatty et al. v. United States the Court of Claims stated a wrongful threat would amount to duress ‘only if it is sufficient to overpower the will of the other party and prevent the free exercise of his will.’ But such statements merely beg the question, what is involuntary?

The ASBCA, is Ace Van & Storage, Inc. and Mission Van & Storage, Inc., has elaborated on this point. It gave the example of the man who must pay a ransom for the return of his wife or child. The decision to pay the ransom is without a doubt voluntary in the metaphysical sense of the word. But the ASBCA was not prepared to call such a choice voluntary. Thus, being forced to choose between undesirable alternatives, that is accepting the terms offered or facing irreparable damage, is not voluntary and will not bar recovery under a theory of duress.

Footnotes omitted.

My research has persuaded me to believe that a claim of duress in this matter would not succeed.

I'm not a lawyer, but I also feel a contractor's claim of duress in this matter would not succeed.

And I think a contracting officer's claim of illegality would not succeed as a defense against discipline for refusing to negotiate the clause into contracts as instructed.

I hope I have never broken the law in my job.  I have closed one eye a few times, and I have pushed for an outcome or resolution a few times -- these were not clear-cut matters of legality but were more matters of discretion (at least in my mind).  I've been directed to do things I didn't want to do, and I've done some of them, but these also were not clear-cut matters of legality.

Some have said I am too hard on contractors when I enforce contract clauses as written, and some have said I'm too easy on contractors when I enforce contract clauses as written.

Whenever a contracting officer faces a legal or ethical question regarding his or her job duties, I think a consultation with an agency attorney or ethics counselor is a good idea.

In matters of contract formation and administration, what one person sees as illegal may not, in fact, be illegal.  An agency attorney once told me that leaving a particular offeror out of a competitive range would be illegal. I disagreed, saying it might be unsupportable, or foolish, or undefendable in case of a protest, but in my mind that is different than illegal -- I felt it was entirely legal. I cannot meaningfully engage in a theoretical debate about whether an order is illegal and should be disobeyed unless I know what the order is.

ji20874 said:

If all of an agency's contractors voluntarily sign the mods, and do so without any reservation of rights, then there should be no problems later for that agency.

It does not end with the signing.  It is the actual administration and enforcement of the clause and the confusion that will follow.  Remember one post somewhere in Forum has already lamented about the inconsistency of application of the clause.  Passing the requirement on to a COR, possibly an inspector, or whom ever the CO depends on for assistance in administration and enforcement of the clause will undoubtedly raise as many questions as the requirement for the clause has.  This reality relates to a segment of your comment that 

ji20874 said:

....what one person sees....

 My experience with reality is that administration and enforcement of a contract clause goes way beyond the CO and in some cases the designated contractor representative.  

My experience was just a small piece of the giant procurement machine of the Federal government but yet impact was seen as giant in some geographical areas of the US!

https://newhouse.house.gov/sites/newhouse.house.gov/files/firefighter_vaccine_letter_final.pdf

Sure, there will always be implementation problems with anything.  But we're talking about the legality of the modification.

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 . 2. Established, required, or permitted by law; LAWFUL . 3. Of, relating to, or involving law as opposed to equity.

illegal adj. (17c) Forbidden by law; unlawful .

lawful adj. (13c) Not contrary to law; permitted or recognized by law; rightful . See LEGAL. — lawfulness, n.

unlawful adj. (14c) 1. Not authorized by law; illegal <in some cities, jaywalking is unlawful>. 2. Criminally punishable . 3. Involving moral turpitude . — 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?

Vern Edwards said:

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?

One of the basics - A contract must have legal purpose and object to be enforceable.  Conclusion not enforceable if the EO is unlawful?

Vern Edwards said:

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?

A very pertinent question with regard to a modification exercising an option that includes the clause.

ji20874 said:

But we're talking about the legality of the modification.

Yes I know but as it goes the adjudication does not stop with with a competent court declaration regarding the EO the questions posed in the most recent post create their own need for declarations by competent courts or other forums.  Actions throughout the whole contracting process have their own questions of unlawfulness.

If boards or courts make the clause improper or unenforceable, they will likely say the President or the Executive Branch or the agency overstepped.  They likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

ji20874 said:

If boards or courts make the clause improper or unenforceable, they will likely say the President or the Executive Branch or the agency overstepped.  They likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

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?

I'm just sharing a professional opinion.  So, in such a case, you are thinking the board or court will indicate the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.?

If you're trying to piss on me because my ability or interest in quoting case law is less than yours, go ahead.  But my thought is an honest one, and a credible one -- the board or court likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

ji20874 said:

I'm just sharing a professional opinion.  So, in such a case, you are thinking the board or court will indicate the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.?

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.

I meant what I said.  I do not think anyone can reasonably assert that a contracting officer's faithfully negotiating a bilateral modification to include the clause we are talking about can be compared with other situations where an employee should have disobeyed an unlawful order.  I do not need to do research to justify holding or sharing such an opinion.  Thus, I am fine with saying the board or court likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.  The contrary of my opinion, for which you seem to be arguing, is absurd -- and it is wholly proper to treat it as absurd.

Vern Edwards said:

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.

This reminds me of when I used to teach contracting newbies at DAU. As they learned more about the FAR/DFARS, sometimes the more thoughtful students would come to the realization that their organizations didn't always follow the rules. They wouldn't know what to do with that information, because they had assumed that people knew what they were doing where they worked. We ended up adding the following to the course material:

Quote

24.  What do I do if I am a contract specialist and my contracting officer is not complying with the regulations?

            It’s quite common for contract specialists to discover, by training or independent research, that acquisitions they are working on may not be fully compliant with the regulations.  Given the sheer volume of the applicable regulations and how often they are changed, it is understandable that contracting officers fall out of compliance due to a lack of knowledge.  If this is the case, it is your duty as a contract specialist to bring this to the attention of your contracting officer.  This will give the contracting officer the opportunity to correct the noncompliance. 

            A more difficult situation occurs when the contracting officer takes no action to correct the noncompliance or you find that the noncompliance is by design.  This presents an ethical dilemma.  Is it ethical to process acquisitions that you know are noncompliant with the regulations as long as you are not signing anything?  While some may find comfort in believing the answer to this question is “yes”, being a party to the evasion of legal regulations is contrary to the Standards of Conduct for the Executive Branch.[1]  In fact, the Standards of Conduct state that “Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

            You primarily have two options for reporting intentional violations of the regulations.  The first is reporting the noncompliance up the contracting officer’s chain of command.  If the contracting officer is abusing the authority given to him/her, then those who granted that authority should be informed so that the appropriate remedial action can be taken.  The second option is to report the noncompliance to the DoD Office of the Inspector General (DoD IG).  The DoD IG has a “Defense Hotline” to report fraud, waste, abuse, or mismanagement regarding programs and personnel under the purview of the DoD.  No matter which option you choose to report a violation, you will be protected under Whistleblower statutes and you have the option to remain anonymous.  If you choose to remain anonymous, then you should provide enough information in your complaint so that an investigation, if necessary, can be effectively conducted.

[1] See http://www.oge.gov/Laws-and-Regulations/Employee-Standards-of-Conduct/Employee-Standards-of-Conduct/

Admittedly, this hardly scratches the surface of what training acquisition professionals need. Most training is of the "don't take bribes" variety.

ji20874 said:

I meant what I said.

So did Ptolemy when he said the Sun orbits the Earth.

ji20874 said:

The contrary of my opinion, for which you seem to be arguing, is absurd -- and it is wholly proper to treat it as absurd.

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.

ji20874 said:

If boards or courts make the clause improper or unenforceable, they will likely say the President or the Executive Branch or the agency overstepped.  They likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

Quote

I'm just sharing a professional opinion.

Quote

I do not need to do research to justify holding or sharing such an opinion.

Dunning-Kruger Effect

Don Mansfield said:

“Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

What a dilemma!

"This order promotes economy and efficiency in Federal procurement..."

C Culham said:

What a dilemma!

"This order promotes economy and efficiency in Federal procurement..."

I think you will find that statement in every proposed rule. It's probably on a macro. 😄

On 11/18/2021 at 8:09 AM, ji20874 said:

I am not seeing that contracting officers, as employees, need to be deciding the legality of the E.O. as a prerequisite to following instructions to implement the E.O.

The President issues an XO that states "In order to increase wealth among socially and economically disadvantaged businesses, all contracts issued after the date of this XO shall be awarded to such businesses as defined in regulations issued by the SBA."  Do you salute smartly and move out or stand fast?

Fara Fasat said:

I think you will find that statement in every proposed rule. It's probably on a macro. 😄

No doubt...but in a true read it seems only a macro when intent is to affect the procurement world.

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.

Fara Fasat said:

I think you will find that statement in every proposed rule. It's probably on a macro. 😄

I think the "economy and efficiency" reference relates to the fact that the FAR and DFARS deviations are intended to implement an Executive Order, and the president's authority to "prescribe policies and directives" (40 U.S.C. 121(a)) under the Federal Property and Administrative Services Act is grounded on that Act's goal of "to provide the Federal Government with an economical and efficient system."  40 U.S.C. 101.  See generally, Congressional Research Service, Presidential Authority to Impose Requirements on Federal Contractors, June 14, 2011 (R41866).

Vern Edwards said:

The clauses that implement the socio-economic programs are generally the most convoluted and difficult to interpret in FAR

Vern, don't forget the VA's regs concerning contracting with VOSB's and SDVOSB's and the interaction between those regs and the SBA concerning eligibility to participate in the program.

Retreadfed said:

Vern, don't forget the VA's regs concerning contracting with VOSB's and SDVOSB's and the interaction between those regs and the SBA concerning eligibility to participate in the program.

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

Jacques said:

I think the "economy and efficiency" reference relates to the fact that the FAR and DFARS deviations are intended to implement an Executive Order, and the president's authority to "prescribe policies and directives" (40 U.S.C. 121(a)) under the Federal Property and Administrative Services Act is grounded on that Act's goal of "to provide the Federal Government with an economical and efficient system."  40 U.S.C. 101.  See generally, Congressional Research Service, Presidential Authority to Impose Requirements on Federal Contractors, June 14, 2011 (R41866).

See also : https://www.federalregister.gov/documents/2021/09/28/2021-21184/determination-of-the-promotion-of-economy-and-efficiency-in-federal-contracting-pursuant-to

i didn’t see any offsetting consideration of disruption impacts if employees quit or are fired for non-compliance with mandatory vaccination.

From this morning's Early Bird:  Vaccine mandate for federal contractors blocked in 3 states (Kentucky, Tennessee and Ohio)

The preliminary injunction is linked here.

Two interesting (to me) points from the opinion:

(1) While the court enjoined the vaccine mandate, the injunction stated that the OMB Determination and FAR Council Guidance likely complied with the APA and 41 U.S.C. § 1707, stating "Although the procedural path taken by the agencies was, at times, inartful and a bit clumsy, the Court finds based on the record before it that the Defendants likely followed the procedures required by statute."

(2) The court found the EO exceeded the president's authority under the FPASA stating, "FPASA’s goal is to create an 'economical and efficient system for…procurement and supply.' Kahn, 618 F.2d at 788 (emphasis added). While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination."

It also states, "neither OSHA nor the  executive branch is permitted to exercise statutory authority it does not have.... In this case, the FPASA was enacted to promote an economical and efficient procurement system, and the Defendants cannot point to a single instance when the statute has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors."

In other words, FPASA is a statute aimed at promoting economical and efficient procurement system, and the E.O.'s vaccine mandate is a "public health regulation" that exceeds the scope and purpose of the statute.

However, later in the opinion, the court rejected the plaintiff's argument that improving procurement efficiency was pretextual and stated, "the subsequent OMB Determination provided ample support for the premise that a vaccine mandate will improve procurement efficiency."

Putting these two points together, the Court seems to be saying that the the government has offered ample support that a vaccine mandate will improve procurement efficiency (which meets the intent and scope of FPASA) and that the government likely followed the administrative procedures required by statute to implement the mandate.  However, because the mandate ALSO involves implementing public health measures, the mandate exceeds the government's authority under the FPASA.

I think the Court's statement that "Defendants cannot point to a single instance when [FPASA] has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors," is a red herring.  FPASA was passed in 1949.  How many global pandemics have we faced since that time? The lack of examples has less to do with the scope and authority of FPASA and more to do with the lack of a public health emergency that could even rise to the level of potentially impacting procurement efficiency.

I make no prediction as to the final outcome. But I am interested to see if an appellate court will find that an E.O. issued under and facially compliant with FPASA exceeds the scope of FPASA because it also involves matters of public health.