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2021-09-30 07:00 by Karl Denninger
in Editorial , 30328 references Ignore this thread
Our Screaming Child @POTUS*
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The much-screamed about federal "contractor" guidance is out.  It does not say what Biden said it says.  Once again, the petulant 2-year old in diaper (literally, Depends) is lying and trying to scare you. 

Here it is:

That proposed rule defines a contract or contract-like instrument as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.

Yeah, ok, and this is news?  A contract is a contract.  But, as you will soon see, a contract is a contract and that's a problem for Biden and his pissy little temper tantrum -- and the government admits it right on page 5:

Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

And there it is folks.

Most contracts are for a term, negotiated in writing.  Indeed, if performance is to stretch over a period of one year or more there is this nice little thing called "The Statute of Frauds" (which doesn't actually cover fraud) that mandates that the contract be in writing to be enforceable.  Therefore all the contracting parties with the federal government, where performance will meet or exceed one year, do indeed negotiate same in writing and sign off on it.  That's because they're not stupid.

If a contract has options to extend then you have a contract with the ability to make it longer.  For example, let's say I have one that is a one-year contract with the option to extend for additional one year periods up to five years.  Fine and well, except that when you exercise that option you can't change the terms unless they're mutually re-renegotiated.

What this document says is that when such options exist the government shall do that -- in other words they shall renegotiate to include said term (you must be fully vaccinated.)  That's perfectly legal but doing so means the contractor can refuse and/or reopen negotiations -- say, on price or other terms.

Note that since this document provides burdens to the covered contractor you can bet the price will go up.  Not only is record-keeping involved workplace "social distancing" and masking is involved too along with a demand for compliance officer(s) to be employed.  These are real costs and, in some cases, fairly-extreme costs.

Covered contractors shall designate a person or persons to coordinate implementation of and compliance with this Guidance and the workplace safety protocols detailed herein at covered contractor workplaces.

They will be immediately met with demands for more money and snarl the supply chain to the government, since they're now a demand for every contracting entity.  Good -- maybe Mordor and its various agencies will get rat****ed by the inability to secure at a reasonable price, or even at all, the goods and services it wants to buy.

What's even worse for the government is that the way they're going to word this requirement (which isn't yet released), according to Q16, those will become part of existing agreements entered into after November.  Yes, you can do that in a contract; explicitly agree that one side or the other can change terms in various ways -- in this case, for whatever the Government decides are "Covid" reasons.  But since that set of requirements which may be imposed on the contractor is unknown as to both scope and cost (in other words the contractor cannot price it with any sort of precision) you can bet it's going to trigger very large adjustment demands from the contracting firms.

VERY large.

Good.

Note that in the FAQ Q12 it specifically addresses what's obvious: You cannot unilaterally change the terms of a contract so these requirements cannot be, and are not, imposed until the option period comes up -- which triggers renegotiation -- or, for a new contract, when it is awarded.

Further, Biden's administration has figured out that attempting to run this all the way down the supply chain to products and those incorporated in others is likely to result in an erected middle finger and the collapse of the government's procurement process, and so they didn't do that.  Read Q13.

Good luck you demented *******; you're going to need it.

And no, if you work for a contractor or are one, you're not required to be vaccinated in November.  The Government hasn't even issued the actual rule yet, nor its language.  But when it does issue contracts that are extended, optioned or newly-drafted after that date must include it.  Fine.  Your price should reflect their stupidity and may it cause the Feral ****face-In-Dementia to CHOKE.

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Horseyhefler
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Off topic, shared the Spain article with a friend because of specific questions he asked. I sent the link, my email didn't have a subject line, so I made one up, but the two articles I sent were both marked "junk". They're programmers, and they were looking for my emails, but commented on how interesting that when I link articles from here and AB, they're now automatically junk'd. I know for a fact they haven't been targeted previously... I don't normally email, i text or use Messenger, though I've noticed that when I use messenger, it will only allow me to "share" to 5 people at a time, recently...
Jcpennyinla
Posts: 69
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Seminole, AL
Banned
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Quote:
...and any subcontracts of any tier thereunder...

I was imprisoned in DoD Acquisitions during several of my assignments. One of the bragging points about the Major Programs is how many subs [of subs] they had throughout the 56 [per BO] states. This "rule" appears to require the prime to renegotiate each and every sub-contract prior to the next award. That's administratively insane... much like the POTUS.

jcp
Blanca
Posts: 258
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Thanks Karl.

What this guidance won't stop is government arm-twisting of woke contractor companies into instituting their own jab policies, regardless of contractual language.

Right now the government is desperate for people to work its programs. Engineers are in great demand. I know because I am frequently called by various companies looking to staff projects. These kind of mandates will make the staffing of the projects more difficult. They are cutting their own throats.

Oh, and presently the government can't staff many of its projects with foreign nationals as US citizenship is a requirement. Outsourcing to India or Vietnam isn't an option.

Half or more of all software projects end in failure. Ending them now for an inability to staff will save lots of money.

Reason: Clarification
Tickerguy
Posts: 179027
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@Blanca - Yep. I've done work on such before, when I was a younger man. I still cannot talk about it, but I have seen much -- and understand it far better than those who never have.

I'll leave it at that, for it violates neither rule or law to stop there.

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Whitehat
Posts: 6483
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Elsewhere
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Quote:
Half or more of all software projects end in failure. Ending them now for an inability to staff will save lots of money.

Unless one has had direct access the amount of contracted programs (including things that are not software) that are partially developed over years if not decades and then suddenly abandoned would astound the casual observer. Complete agency programs at even the most mundane levels of social services hire contractors with complete staffs and budgets to discover that something is not going to work. Non-profits are notorious for getting involved in these schemes.

There is no system to fast-fail or otherwise feasibility test a concept before massive investment is made. A lot of the rules that communities must tolerate are actually overhangs from many of these projects where something made it into the CFRs or agency guidance for a long gone or never validated purpose but now lives like the un-dead.

Many contractors straddle the worlds of civil service and contract work quite profitably.

Perhaps this vexxine thing, other than being stupidity inertia, is a type of loyalty test as the system turns into itself and becomes more of an isolated fraternity of insiders. It might not be conscious, just human nature testing compliance of others for narcissistic control.

i don't give any one of them credit for some master plan conspiracy. The folks here in this forum, yes for the vast majority. Govt inc, nah, just immigrant merchant class graft and corruption. Elites my ass. The smart people are playing everyone from outside.

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smiley

"Better to reign in Hell, than serve in Heaven," Satan's monologue in the first book of John Milton's Paradise Lost
Wayiwalk
Posts: 297
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New Yersey
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Good that things might drag out. The December 8 date is being shared widely where I work. Naturally (said with sarcasm) my main bread and butter is managing a task order that ends (base and now option) at the end of November, it is expected that a new follow-on task order will be next as it is for ongoing work (to continue for about two or three years). Based on this preliminary definition I'm anticipating a few week extension of the existing work to carry through Dec 8 at which point the terms can be added to the new task order procurement documents to include the vaccine requirement. A lot of our work is through Indefinite Delivery/Indefinite Quantity (IDIQ) contracts (my work is), which basically is a larger contract that allows the gov't to do the more complicated contractor selection process once for a multi year period to identify a smaller group of qualified contractors, then it competes individual work amongst a smaller pool of contractors.

I expect our company will go along to get along. I'd be delighted if things stretch out to next June when my HS senior graduates. It would eliminate one major challenge Bedpan handed me, but I would not bet on it.

So, in the mean time, as J. Geils Band said in the song, "Trying not to think about it" and keep on preparing for the future.

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The Lockdowns Will Continue Until the Morale Improves!

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Tickerguy
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There are myriad programs where this occurs. A good part of the time one of the contracted people's employees, while developing <whatever> determines that the object of the contract is fundamentally stupid -- it cannot perform as expected, but can be developed to meet the terms of the agreement.

Guess what happens in that case? Yep, what you'd expect to happen....

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Wayiwalk
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Whitehat, I totally agree with that assessment about the federal work sphere becoming a part of "the family" in that way. It already is to a large degree.

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The Lockdowns Will Continue Until the Morale Improves!

I keep thinking, "it can't get any worse" and then it does!
Tritumi
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tokyo
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@Horseyhefler, for the moment Telegram and Signal are secure. Receiving party needs to have the platform, however.

I understand the German gov't is going after Telegram. Dr Bhakdi has been irking the powers with his honesty.

So other EU states may be as well.
Billhrny
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Northern Virginia
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@Whitehat -

Quote:
Perhaps this vexxine thing, other than being stupidity inertia, is a type of loyalty test as the system turns into itself and becomes more of an isolated fraternity of insiders. It might not be conscious, just human nature testing compliance of others for narcissistic control.


100% Agree...I had an epiphany yesterday of a similar idea. The corporate jab mandates, especially for woke companies and federal contractors, can't be about "employee health" or "public safety" with regards to COVID - if so, then proven natural immunity by the previousy infected and recovered would count you in the "in crowd."

But then I look around, both in DC and the corporations, at the specific people pushing it and a lightbulb went off in my head...

The vaccine mandates are meant to FORCE those who would not KNEEL before the authoritarians and woke leftist over a year ago to now "kneel before Zod" and show your fealty.

I pass....I kneel to no one...except if it would give me a tactical advantage to punch, stab, or shoot them directly in the crotch from a better angle than a standing position.
Capcomp
Posts: 166
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Virginia
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And add to all of the above "set-aside requirements": small business, disadvantaged small business, 8A, minority owned, veteran owned, disabled veteran owned and my favorite "Native Alaskan" (Care of the late Senator Ted Stevens).

Many of the big contracts have very specific % requirements for participation for these types of firms.

Gee wonder what happens if some of these firms decide to tell Uncle Sugar to pound sand on the jab mandate.

Literally everything Biden touches turns to sh*t.
Capcomp
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Virginia
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And on a similar vein staffing focused support contracts with named key personnel. They walk and your done.
Overdonkey
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I deal with government contracting officers

We recently received a notice stating that we must monitor employees vaccination status

I sent a reply saying that was an extra responsibility being added to us as a company, and that we would need to re-negotiate to cover the added responsibility being taken on.

Trying to decide on a number to send back now, maybe $1,000,000 per employee ?

If they turn it down, my offer will still stand
Bluto
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Hmmmm... could a contractor charge a ton of money to modify their contracts to "comply"; hire a fired, "unclean" worker to be their "compliance officer", add the salary of said officer to the contract cost, and then claim religious and/or medical exempetions for 100% of their workers?

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"History shows again and again how nature points out the folly of man." -- Blue Oyster Cult "Godzilla"
Bluto
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Why can't this be challenged in court. Where does the power of the Executive to change contracts end?

Can Uncle Joe require that all federal contractors certify that none of their employees voted for Trump?

Can he require that federal contractors only hire people who do not own guns?

Can he require that contractors implement a program which restricts personal travel to a 50 mile radius?

Freedom of speech, the right to keep and bear arms, and freedom of travel are all protected rights. Which is the right to bodily autonomy (10th amendment) NOT?

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"History shows again and again how nature points out the folly of man." -- Blue Oyster Cult "Godzilla"
Billhrny
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Northern Virginia
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@TG -

Another thing that's going to turn this into a Cobra Foxtrot....I've worked for federal contractors all my life on contracts that get re-competed periodically (task order contracts on large IDIQ programs). I bet there is going to be a huge pushback from the contractors - wether they are woke or not. Here's why....

Since they technically don't have to implement the mandate until a new contract or option....the companies know that if a significant portion of their staff will be willing to move from one contract to another (like the competitor). In "Red" areas the companies most resisting implementation can actually use it to lure workers. Some of these now "itinerate" staff in the DoD can be VERY hard to replace if the positions not only require specific technical skills (e.g. building missiles or something), but also require security clearances - with the highest taking years to get.

On the other hand....competing companies CANNOT collude on the implementation to prevent such talent flow because that it "collusion" on federal contracts and they can be hammered or even prevented from bidding on government contracts in the future.

The big DoD companies seem dammed if they do and dammed if they don't....their solution....they will most probably send their army of senior leaders, campaign contributors, and lobbyists to kill this thing ASAP.
Jdough
Posts: 179
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Texifornia
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@Whitehat said
Quote:
Perhaps this vexxine thing, other than being stupidity inertia, is a type of loyalty test


I think this is definitely a possibility, especially given this item in the FAQ, emphasis mine:
Quote:
Q11: How does this Guidance apply to covered contractor employees who are authorized
under the covered contract to perform work remotely from their residence?
A: An individual working on a covered contract from their residence is a covered contractor
employee, and must comply with the vaccination requirement for covered contractor employees,
even if the employee never works at either a covered contractor workplace or Federal workplace
during the performance of the contract
. A covered contractor employees residence is not a
covered contractor workplace, so while in the residence the individual need not comply with
requirements for covered contractor workplaces, including those related to masking and physical
distancing, even while working on a covered contract.


It's possible that they put this in to prevent the remote designation from being used as a workaround by companies, but I think that possibility is fairly slim because these companies live in constant fear of audits, anyone who has ever dealt with the time keeping requirements on a gov contract knows what I mean.

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We didn't love freedom enough. And even more we had no awareness of the real situation.... We purely and simply deserved everything that happened afterward.
Mannfm11
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DFW, Tx
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They walked us into this fascist system over the past 120 years and now NAZI's. This is aided and abetted by immunity given hospitals and drug companies, denied treatments, fake tests, to drive a fake death toll. Things that save you are replaced by things that murder you or don't work. Biden should take another jab, a real one. I don't believe one of these bastards has taken a real shot.

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The only function of economic forecasting is to make astrology look respectable.---John Kenneth Galbraith
Cluelessinfl
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Florida East Coast
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Quote:
"Note that since this document provides burdens to the covered contractor you can bet the price will go up. Not only is record-keeping involved workplace "social distancing" and masking is involved too along with a demand for compliance officer(s) to be employed. These are real costs and, in some cases, fairly-extreme costs...They will be immediately met with demands for more money and snarl the supply chain to the government..."


Unless you happen to work for a "woke" company like I do (State Dept. contractor headquartered in DC). The purple haired gender neutral vaxx evangelists in HR will probably gleefully do all this for free.

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The difference between Americans and Europeans is our ancestors threw off the yoke of tyranny, theirs embraced it.
Bzelbob
Posts: 116
Incept: 2021-09-12

Jacksonville
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@Blanca,
Quote:
Half or more of all software projects end in failure. Ending them now for an inability to staff will save lots of money.

Amen to that.

Worked for a small company that had the chance to pursue big gov work. Big freaking streams of money. It didn't happen mostly because of the insane hassle of complying with gov regs.
Our projects were, maybe 80% successful overall only cause we kept out of that world.
People really have no idea of what a **** show things are in the software world. I do because I'm spent most of my career cleaning stuff up.

The stuff Karl has written about the Ring-type cameras, etc. not only doesn't surprise me, I expect it now.
And as he has noted, even being an open source project (*cough*AndroidOS*cough*) doesn't keep it from becoming an unwieldy, bug-laden pile of steaming poop.

When they lay off a bunch of contractor people, they will then bring in more new people (thus triggering Brooks Law) and the whole thing will probably spiral down into runaway status...

The Big Lurch that's coming will be truly *EPIC*.

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"Threats are illogical. And payment is usually expensive." - Sarek of Vulcan
Nadavegan
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The South
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@clueless: devise a way to get the vaxx status of the purplehaired HR trigglypuffs. The DAY one of them goes past the required booster date, start up the whisper campaigns. Get them focused on eating one another.

Better yet, do it to some of your senior management.
Dnomsed
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OK, so by now everyone with an ounce of savvy and common sense knows that the US government is murdering its citizens.

No amount of explaining and reasoning works. The death toll rises daily.

What will you do about it?
Frat
Posts: 8023
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NKY
Online
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Overdonkey wrote..
I deal with government contracting officers

We recently received a notice stating that we must monitor employees vaccination status

I sent a reply saying that was an extra responsibility being added to us as a company, and that we would need to re-negotiate to cover the added responsibility being taken on.

Trying to decide on a number to send back now, maybe $1,000,000 per employee ?

If they turn it down, my offer will still stand


Interesting story that your comment (and similar ones above) sparked in my memory. Between the JV and varsity games one night (Frat Junior plays on JV, I took pics for varsity), another dad and I ran to a microbrewery a few minutes from the field. He saw another dad there whose son is on an elite team, one he was not even allowed to watch practice, so he did the same as us - why not have a beer while waiting? I did not realize until later in the conversation that this was the pres/CEO of a major local construction firm with over 10k employees. It was right after the jab mandates were first discussed by the Pants****ter-in-Chief. He was very frank about it; he was vaxed because it was about the only way he could enter half (or more) of the huge clients he dealt with on a daily basis. Risk-Reward for him was "Can I even do my job?", and I respected that. I shared with him how these discussions tore my wife up, and that she was actually working that night, and do you really want your ER nurse having to worry about that if you have an emergency?

It was a very interesting conversation, but not hostile at all. My most direct comment - and said without animosity, but very blunt - was "Do you routinely go around making personal health decisions for your thousands of employees?" He obviously said "No," and seemed a little surprised that I would be that direct. For him it was a decision made without coercion, but deliberately made so he could continue doing his job to the best of his ability. I respected that, and told him so - he looked at the risk-reward, decided based on that, and he suffered no immediate ill-effects.

The most interesting part to me - and why I used your quote above - is that he was very clear he was going to renegotiate ALL of his contracts, and add substantially to anyone who demanded that all the employees working on their projects be vaxed. He as clear: "YOU changed the terms of the contract after it had been signed, so YOU'RE going to pay for it." He broke it down to the most practical terms - they use hundreds of subcontractors, and many of them are going to refuse to hire and use only vaxed people. Therefore, he is going to have to find subs that DO have only vaxed, or who only used vaxed on the jobs they're hired for that require it. I'm trying to think of the terms, but he estimated those (freaking HUGE) contracts might go up as much as 30% to cover all of the expenses, headaches and plain LABOR to do what they demand. Not just that ... anybody hear how the labor market is, right now? Yeah, he sure as hell knows with over 10k employees. I had only just met the man, but had an immediate respect for him; not just because of his position, but because he broke it down plainly and not politically - it was all about the bottom line and how it was going to be affected by these stupid mandates. I'd gladly have another beer with him to discuss any number of topics.

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We're ****ed. There will be no happy ending here; there is no going back to 'normal.'. There are only bad outcomes and worse outcomes. And we don't get to choose those, either.
Patentleathershoes
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This could also result in major recompetes of the larger 'umbrella' contracts in particular for small business set-asides.

I doubt the large major contractors will fight it but you could see a lot of subs and subs of subs reduce their business size to 99.

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"An unborn child's property rights are protected by law. His right to life is not." Ronald Reagan
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