Back to School Daze Blogging–DCMA Investigation on POGO, DDSTOP, $600 Ashtrays,and Epistemic Sunk Costs

Family summer visits and trips are in the rear view–as well as the simultaneous demands of balancing the responsibilities of a, you know, day job–and so it is time to take up blogging once again.

I will return to my running topic of Integrated Program and Project Management in short order, but a topic of more immediate interest concerns the article that appeared on the website for pogo.org last week entitled “Pentagon’s Contracting Gurus Mismanaged Their Own Contracts.” Such provocative headlines are part and parcel of organizations like POGO, which have an agenda that seems to cross the line between reasonable concern and unhinged outrage with a tinge conspiracy mongering. But the content of the article itself is accurate and well written, if also somewhat ripe with overstatement, so I think it useful to unpack what it says and what it means.

POGO and Its Sources

The source of the article comes from three sources regarding an internal Defense Contract Management Agency (DCMA) IT project known as the Integrated Workflow Management System (IWMS). These consist of a September 2017 preliminary investigative report, an April 2018 internal memo, and a draft of the final report.

POGO begins the article by stating that DCMA administers over $5 trillion in contracts for the Department of Defense. The article erroneously asserts that it also negotiates these contracts, apparently not understanding the process of contract oversight and administration. The cost of IWMS was apparently $46.6M and the investigation into the management and administration of the program was initiated by the then-Commander of DCMA, Lieutenant General Wendy Masiello, shortly before she retired from the government in May 2017.

The implication here, given the headline, seems to be that if there is a problem in internal management within the agency, then that would translate into questioning its administration of the $5 trillion in contract value. I view it differently, given that I understand that there are separate lines of responsibility in the agency that do not overlap, particularly in IT. Of the $46.6M there is a question of whether $17M in value was properly funded. More on this below, but note that, to put things in perspective, $46.6M is .000932% of DCMA’s oversight responsibility. This is aside from the fact that the comparison is not quite correct, given that the CIO had his own budget, which was somewhat smaller and unrelated to the $5 trillion figure. But I think it important to note that POGO’s headline and the introduction of figures, while sounding authoritative, are irrelevant to the findings of the internal investigation and draft report. This is a scare story using scare numbers, particularly given the lack of context. I had some direct experience in my military career with issues inspired by the POGO’s founders’ agenda that I will cover below.

In addition to the internal investigation on IWMS, there was also an inspector general (IG) investigation of thirteen IT services contracts that resulted in what can only be described as pedestrian procedural discrepancies that are easily correctable, despite the typically overblown language found in most IG reports. Thus, I will concentrate on this post on the more serious findings of the internal investigation.

My Own Experience with DCMA

A note at this point on full disclosure: I have done business with and continue to do business with DCMA, both as a paid supplier of software solutions, and have interacted with DCMA personnel at publicly attended professional forums and workshops. I have no direct connection, as far as I am aware, to the IWMS program, though given that the assessment is to the IT organization, it is possible that there was an indirect relationship. I have met Lieutenant General Masiello and dealt with some of her subordinates not only during her time at DCMA, but also in some of her previous assignments in Air Force. I always found her to be an honest and diligent officer and respect her judgment. Her distinguished career speaks for itself. I have talked on the telephone to some of the individuals mentioned in the article on unrelated matters, and was aware of their oversight of some of my own efforts. My familiarity with all of them was both businesslike and brief.

As a supplier to DCMA my own contracts and the personnel that administer them were, from time-to-time, affected by the fallout from what I now know to have occurred. Rumors have swirled in our industry regarding the alleged mismanagement of an IT program in DCMA, but until the POGO article, the reasons for things such as a temporary freeze and review of existing IT programs and other actions were viewed as part and parcel of managing a large organization. I guess the explanation is now clear.

The Findings of the Investigation

The issue at hand is largely surrounding the method of source selection, which may have constituted a conflict of interest, and the type of money that was used to fund the program. In reading the report I was reminded of what Glen Alleman recently wrote in his blog entitled “DDSTOP: The Saga Continues.” The acronym DDSTOP means: Don’t Do Stupid Things On Purpose.

There is actually an economic behavioral principle for DDSTOP that explains why people make and double down on bad decisions and irrational beliefs. It is called epistemic sunk cost. It is what causes people to double down in gambling (to the great benefit of the house), to persist in mistaken beliefs, and, as stated in the link above, to “persist with the option which they have already invested in and resist changing to another option that might be more suitable regarding the future requirements of the situation.” The findings seem to document a situation that fits this last description.

In going over the findings of the report, it appears that IWMS’s program violated the following:

a. Contractual efforts in the program that were appropriate for the use of Research, Development, Test and Evaluation (R,D,T & E) funds as opposed to those appropriate for O&M (Operations and Maintenance) funds. What the U.S. Department of Defense calls “color of money.”

b. Amounts that were expended on contract that exceeded the authorized funding documents, which is largely based on the findings regarding the appropriate color of money. This would constitute a serious violation known as an Anti-Deficiency Act violation which, in layman’s terms, is directed to punish public employees for the misappropriation of government funds.

c. Expended amounts of O&M that exceeded the authorized levels.

d. Poor or non-existent program management and cost performance management.

e. Inappropriate contracting vehicles that, taken together, sidestepped more stringent oversight, aside from the award of a software solutions contract to the same company that defined the agency’s requirements.

Some of these are procedural and some are serious, particularly the Anti-deficiency Act (ADA) violations, are serious. In the Contracting Officer’s rulebook, you can withstand pedestrian procedural and administrative findings that are part and parcel of running an intensive contracting organization that acquires a multitude of supplies and services under deadline. But an ADA violation is the deadly one, since it is a violation of statute.

As a result of these findings, the recommendation is for DCMA to lose acquisition authority over the DoD micro-contracting level ($10,000). Organizationally and procedurally, this is a significant and mission-disruptive recommendation.

The Role and Importance of DCMA

DCMA performs an important role in contract compliance and oversight to ensure that public monies are spent properly and for the intended purpose. They perform this role mostly on contracts that are negotiated and entered into by other agencies and the military services within the Department of Defense, where they are assigned contract administration duties. Thus, the fact that DCMA’s internal IT acquisition systems and procedures were problematic is embarrassing.

But some perspective is necessary because there is a drive by some more extreme elements in Congress and elsewhere that would like to see the elimination of the agency. I believe that this would be a grave mistake. As John F. Kennedy is quoted as having said: “You don’t tear your fences down unless you know why they were put up.”

For those of you who were not around prior to the formation of DCMA or its predecessor organization, the Defense Contract Management Command (DCMC), it is important to note that the formation of the agency is a result of acquisition reform. Prior to 1989 the contract administration services (CAS) capabilities of the military services and various DoD offices varied greatly in capability, experience, and oversight effectiveness.Some of these duties had been assigned to what is now the Defense Logistics Agency (DLA), but major acquisition contracts remained with the Services.

For example, when I was on active duty as a young Navy Supply Corps Officer as part of the first class that was to be the Navy Acquisition Corps, I was taught cradle-to-grave contracting. That is, I learned to perform customer requirements development, economic analysis, contract planning, development of a negotiating position, contract negotiation, and contract administration–soup to nuts. The expense involved in developing and maintaining the skill set required of personnel to maintain such a broad-based expertise is unsustainable. For analogy, it is as if every member of a baseball club must be able to play all nine positions at the same level of expertise; it is impossible.

Furthermore, for contract administration a defense contractor would have contractual obligations for oversight in San Diego, where I was stationed, that were different from contracts awarded in Long Beach or Norfolk or any of the other locations where a contracting office was located. Furthermore, the military services, having their own organizational cultures, provided additional variations that created a plethora of unique requirements that added cost, duplication, inconsistency, and inter-organizational conflict.

This assertion is more than anecdotal. A series of studies were commissioned in the 1980s (the findings of which were subsequently affirmed) to eliminate duplication and inconsistency in the administration of contracts, particularly major acquisition programs. Thus, DCMC was first established under DLA and subsequently became its own agency. Having inherited many of the contracting field office, the agency has struggled to consolidate operations so that CAS is administered in a consistent manner across contracts. Because contract negotiation and program management still resides in the military services, there is a natural point of conflict between the services and the agency.

In my view, this conflict is a healthy one, as all power in the hands of a single individual, such as a program manager, would lead to more fraud, waste, and abuse, not less. Internal checks and balances are necessary in proper public administration, where some efficiency is sacrificed to accountability. It is not just the goal of government to “make the trains run on time”, but to perform oversight of the public’s money so that there is accountability in its expenditure, and integrity in systems and procedures. In the case of CAS, it is to ensure that what is being procured actually gets delivered in conformance to the contract terms and conditions designed to reduce the inherent risk in complex acquisition programs.

In order to do its job effectively, DCMA requires innovative digital systems to allow it to perform its CAS function. As a result, the agency must also possess an acquisition capability. Given the size of the task at hand in performing CAS on over $5 trillion of contract effort, the data involved is quite large, and the number of personnel geographically distributed. The inevitable comparisons to private industry will arise, but few companies in the world have to perform this level of oversight on such a large economic scale, which includes contracts comprising every major supplier to the U.S. Department of Defense, involving detailed knowledge of the management control systems of those companies that receive the taxpayer’s money. Thus, this is a uniquely difficult job. When one understands that in private industry the standard failure rate of IT projects is more than 70% percent, then one cannot help but be unimpressed by these findings, given the challenge.

Assessing the Findings and Recommendations

There is a reason why internal oversight documents of this sort stay confidential–it is because these are preliminary/draft findings and there are two sides to every story which may lead to revisions. In addition, reading these findings without the appropriate supporting documentation can lead one to the wrong impression and conclusions. But it is important to note that this was an internally generated investigation. The checks and balances of management oversight that should occur, did occur. But let’s take a close look at what the reports indicate so that we can draw some lessons. I also need to mention here that POGO’s conflation of the specific issues in this program as a “poster child” for cost overruns and schedule slippage displays a vast ignorance of DoD procurement systems on the part of the article’s author.

Money, Money, Money

The core issue in the findings revolves around the proper color of money, which seems to hinge on the definition of Commercial-Off-The-Shelf (COTS) software and the effort that was expended using the two main types of money that apply to the core contract: RDT&E and O&M.

Let’s take the last point first. It appears that the IWMS effort consisted of a combination of COTS and custom software. This would require acquisition, software familiarization, and development work. It appears that the CIO was essentially running a proof-of-concept to see what would work, and then incrementally transitioned to developing the solution.

What is interesting is that there is currently an initiative in the Department of Defense to do exactly what the DCMA CIO did as part of his own initiative in introducing a new technological approach to create IWMS. It is called Other Transactional Authority (OTA). The concept didn’t exist and was not authorized until the 2016 NDAA and is given specific statutory authority under 10 U.S.C. 2371b. This doesn’t excuse the actions that led to the findings, but it is interesting that the CIO, in taking an incremental approach to finding a solution, also did exactly what was recommended in the 2016 GAO report that POGO references in their article.

Furthermore, as a career Navy Supply Corps Officer, I have often gotten into esoteric discussions in contracts regarding the proper color of money. Despite the assertion of the investigation, there is a lot of room for interpretation in the DoD guidance, not to mention a stark contrast in interpreting the proper role of RDT&E and O&M in the procurement of business software solutions.

When I was on the NAVAIR staff and at OSD I ran into the difference in military service culture where what Air Force financial managers often specified for RDT&E would never be approved by Navy financial managers where, in the latter case, they specified that only O&M dollars applied, despite whether development took place. Given that there was an Air Force flavor to the internal investigation, I would be interested to know whether the opinion of the investigators in making an ADA determination would withstand objective scrutiny among a panel of government comptrollers.

I am certain that, given the differing mix of military and civil service cultures at DCMA–and the mixed colors of money that applied to the effort–that the legal review that was sought to resolve the issue. One of the principles of law is that when you rely upon legal advice to take an action that you have a defense, unless your state of mind and the corollary actions that you took indicates that you manipulated the system to obtain a result that shows that you intended to violate the law. I just do not see that here, based on what has been presented in the materials.

It is very well possible that an inadvertent ADA violation occurred by default because of an improper interpretation of the use of the monies involved. This does not rise to the level of a scandal. But going back to the confusion that I have faced from my own experiences on active duty, I certainly hope that this investigation is not used as a precedent to review all contracts under the approach of accepting a post-hoc alternative interpretation by another individual who just happens to be an inspector long after a reasonable legal determination was made, regardless of how erroneous the new expert finds the opinion. This is not an argument against accountability, but absent corruption or criminal intent, a legal finding is a valid defense and should stand as the final determination for that case.

In addition, this interpretation of RDT&E vs. O&M relies upon an interpretation of COTS. I daresay that even those who throw that term around and who are familiar with the FAR fully understand what constitutes COTS when the line between adaptability and point solutions is being blurred by new technology.

Where the criticism is very much warranted are those areas where the budget authority would have been exceeded in any event–and it is here that the ADA determination is most damning. It is one thing to disagree on the color of money that applies to different contract line items, but it is another to completely lack financial control.

Part of the reason for lack of financial control was the absence of good contracting practices and the imposition of program management.

Contracts 101

While I note that the CIO took an incremental approach to IWMS–what a prudent manager would seem to do–what was lacking was a cohesive vision and a well-informed culture of compliance to acquisition policy that would avoid even the appearance of impropriety and favoritism. Under the OTA authority that I reference above as a new aspect of acquisition reform, the successful implementation of a proof-of-concept does not guarantee the incumbent provider continued business–salient characteristics for the solution are publicized and the opportunity advertised under free and open competition.

After all, everyone has their favorite applications and, even inadvertently, an individual can act improperly because of selection bias. The procurement procedures are established to prevent abuse and favoritism. As a solution provider I have fumed quite often where a selection was made without competition based on market surveys or use of a non-mandatory GSA contract, which usually turn out to be a smokescreen for pre-selection.

There are two areas of fault on IMWS from the perspective of acquisition practice, and another in relation to program management.

These are the initial selection of Apprio, which had laid out the initial requirements and subsequently failed to have the required integration functionality, and then, the selection of Discover Technologies under a non-mandatory GSA Blanket Purchase Agreement (BPA) contract under a sole source action. Furthermore, the contract type was not appropriate to the task at hand, and the arbitrary selection of Discover precluded the agency finding a better solution more fit to its needs.

The use of the GSA BPA allowed managers, however, to essentially spit the requirements to stay below more stringent management guidelines–an obvious violation of acquisition regulation that will get you removed from your position. This leads us to what I think is the root cause of all of these clearly avoidable errors in judgment.

Program Management 101

Personnel in the agency familiar with the requirements to replace the aging procurement management system understood from the outset that the total cost would probably fall somewhere between $20M and $40M. Yet all effort was made to reduce the risk by splitting requirements and failing to apply a programmatic approach to a clearly complex undertaking.

This would have required the agency to take the steps to establish an acquisition strategy, open the requirement based on a clear performance work statement to free and open competition, and then to establish a program management office to manage the effort and to allow oversight of progress and assessment of risks in a formalized environment.

The establishment of a program management organization would have prevented the lack of financial control, and would have put in place sufficient oversight by senior management to ensure progress and achievement of organizational goals. In a word, a good deal of the decision-making was based on doing stupid things on purpose.

The Recommendations

In reviewing the recommendations of the internal investigation, I think my own personal involvement in a very similar issue from 1985 will establish a baseline for comparison.

As I indicated earlier, in the early 1980s, as a young Navy commissioned officer, I was part of the first class of what was to be the Navy Acquisition Corps, stationed at the Supply Center in San Diego, California. I had served as a contracting intern and, after extensive education through the University of Virginia Darden School of Business, the extended Federal Acquisition Regulation (FAR) courses that were given at the time at Fort Lee, Virginia, and coursework provided by other federal acquisition organizations and colleges, I attained my warrant as a contracting officer. I also worked on acquisition reform issues, some of which were eventually adopted by the Navy and DoD.

During this time NAS Miramar was the home of Top Gun. In 1984 Congressman Duncan Hunter (the elder not the currently indicted junior of the same name, though from the same San Diego district), inspired by news of $7,600 coffee maker and a $435 hammer publicized by the founders of POGO, was given documents by a disgruntled employee at the base regarding the acquisition of replacement E-2C ashtrays that had a cost of $300. He presented them to the Base Commander, which launched an investigation.

I served on the JAG investigation under the authority of the Wing Commander regarding the acquisitions and then, upon the firing of virtually the entire chain of command at NAS Miramar, which included the Wing Commander himself, became the Officer-in-Charge of Supply Center San Diego Detachment NAS Miramar. Under Navy Secretary Lehman’s direction I was charged with determining the root cause of the acquisition abuses and given 60-90 days to take immediate corrective action and clear all possible discrepancies.

I am not certain who initiated the firings of the chain of command. From talking with contemporaneous senior personnel at the time it appeared to have been instigated in a fit of pique by the sometimes volcanic Secretary of Defense Caspar Weinberger. While I am sure that Secretary Weinberger experienced some emotional release through that action, placed in perspective, his blanket firing of the chain of command, in my opinion, was poorly advised and counterproductive. It was also grossly unfair, given what my team and I found as the root cause.

First of all, the ashtray was misrepresented in the press as a $600 ashtray because during the JAG I had sent a sample ashtray to the Navy industrial activity at North Island with a request to tell me what the fabrication of one ashtray would cost and to provide the industrial production curve that would reduce the unit price to a reasonable level. The figure of $600 was to fabricate one. A “whistleblower” at North Island took this slice of information out of context and leaked it to the press. So the $300 ashtray, which was bad enough, became the $600 ashtray.

Second, the disgruntled employee who gave the files to Congressman Hunter had been laterally assigned out of her position as a contracting officer by the Supply Officer because of the very reason that the pricing of the ashtray was not reasonable, among other unsatisfactory performance measures that indicated that she was not fit to perform those duties.

Third, there was a systemic issue in the acquisition of odd parts. For some reason there was an ashtray in the cockpit of the E-2C. These aircraft were able to stay in the air an extended period of time. A pilot had actually decided to light up during a local mission and, his attention diverted, lost control of the aircraft and crashed. Secretary Lehman ordered corrective action. The corrective action taken by the squadron at NAS Miramar was to remove the ashtray from the cockpit and store them in a hangar locker.

Four, there was an issue of fraud. During inspection the spare ashtrays were removed and deposited in the scrap metal dumpster on base. The tech rep for the DoD supplier on base retrieved the ashtrays and sold them back to the government for the price to fabricate one, given that the supply system had not experienced enough demand to keep them in stock.

Fifth, back to the systemic issue. When an aircraft is to be readied for deployment there can be no holes representing missing items in the cockpit. A deploying aircraft with this condition is then grounded and a high priority “casuality report” or CASREP is generated. The CASREP was referred to purchasing which then paid $300 for each ashtray. The contracting officer, however, feeling under pressure by the high priority requisition, did not do due diligence in questioning the supplier on the cost of the ashtray. In addition, given that several aircraft deploy, there were a number of these requisitions that should have led the contracting officer to look into the matter more closely to determine price reasonableness.

Furthermore, I found that buying personnel were not properly trained, that systems and procedures were not established or enforced, that the knowledge of the FAR was spotty, and that procurements did not go through multiple stages of review to ensure compliance with acquisition law, proper documentation, and administrative procedure.

Note that in the end this “scandal” was born by a combination of systemic issues, poor decision-making, lack of training, employee discontent, and incompetence.

I successfully corrected the issues at NAS Miramar during the prescribed time set by the Secretary of the Navy, worked with the media to instill public confidence in the system, built up morale, established better customer service, reduced procurement acquisition lead times (PALT), recommended necessary disciplinary action where it seemed appropriate, particularly in relation to the problematic employee, recovered monies from the supplier, referred the fraud issues to Navy legal, and turned over duties to a new chain of command.

NAS Miramar procurement continued to do its necessary job and is still there.

What the higher chain of command did not do was to take away the procurement authority of NAS Miramar. It did not eliminate or reduce the organization. It did not close NAS Miramar.

It requires leadership and focus to take effective corrective action to not only fix a broken system, but to make it better while the corrective actions are being taken. As I outlined above, DCMA performs an essential mission. As it transitions to a data-driven approach and works to reduce redundancy and inefficiency in its systems, it will require more powerful technologies to support its CAS function, and the ability to acquire those technologies to support that function.

Don’t Stop Thinking About Tomorrow–Post-Workshop Blogging…and some Low Comedy

It’s been a while since I posted to my blog due to meetings and–well–day job, but some interesting things occurred during the latest Integrated Program Management (IPMD) of the National Defense Industrial Association (NDIA) meeting that I think are of interest. (You have to love acronyms to be part of this community).

Program Management and Integrated Program Management

First off is the initiative by the Program Management Working Group to gain greater participation by program managers with an eye to more clearly define what constitutes integrated program management. As readers of this blog know, this is a topic that I’ve recently written about.

The Systems Engineering discipline is holding their 21st Annual Systems Engineering Conference in Tampa this year from October 22nd to the 25th. IPMD will collaborate and will be giving a track dedicated to program management. The organizations have issued a call for papers and topics of interest. (Full disclosure: I volunteered this past week to participate as a member of the PM Working Group).

My interest in this topic is based on my belief from my years of wide-ranging experience in duties from having served as a warranted government contracting officer, program manager, business manager, CIO, staff officer, and logistics officer that there is much more to the equation in defining IPM that transcends doing so through the prism of any particular discipline. Furthermore, doing so will require collaboration and cooperation among a number of project management disciplines.

This is a big topic where, I believe, no one group or individual has all of the answers. I’m excited to see where this work goes.

Integrated Digital Environment

Another area of interest that I’ve written about in the past involved two different–but related–initiatives on the part of the Department of Defense to collect information from their suppliers that is necessary in their oversight role not only to ensure accountability of public expenditures, but also to assist in project cost and schedule control, risk management, and assist in cost estimation, particularly as it relates to risk sharing cost-type R&D contracted project efforts.

Two major staffs in the Offices of the Undersecretary of Defense have decided to go with a JSON-type schema for, on the one hand, cost estimating data, and on the other, integrated cost performance, schedule, and risk data. Each initiative seeks to replace the existing schemas in place.

Both have been wrapped around the axle on getting industry to move from form-based reporting and data sharing to a data-agnostic solution that meet the goals of reducing redundancy in data transmission, reducing the number of submissions and data streams, and moving toward one version of truth that allows for SMEs on both sides of the table to concentrate on data analysis and interpretation in jointly working toward the goal of successful project completion and end-item deployment.

As with the first item, I am not a disinterested individual in this topic. Back when I wore a uniform I helped to construct DoD policy to create an integrated digital environment. I’ve written about this experience previously in this blog, so I won’t bore with details, but the need for data sharing on cost-type efforts acknowledges the reality of the linkage between our defense economic and industrial base and the art of the possible in deploying defense-related end items. The same relationship exists for civilian federal agencies with the non-defense portion of the U.S. economy. Needless to say, a good many commercial firms unrelated to defense are going the same way.

The issue here is two-fold, I think, from speaking with individuals working these issues.

The first is, I think, that too much deference is being given to solution providers and some industry stakeholders, influenced by those providers, in “working the refs” through the data. The effect of doing so not only slows down the train and protects entrenched interests, it also gets in the way of innovation, allowing the slowest among the group to hold up the train in favor of–to put it bluntly–learning their jobs on the job at the expense of efficiency and effectiveness. As I expressed in a side conversion with an industry leader, all too often companies–who, after all, are the customer–have allowed themselves to view the possible by the limitations and inflexibility of their solution providers. At some point that dysfunctional relationship must end–and in the case of comments clearly identified as working the refs–they should be ignored. Put your stake in the ground and let innovation and market competition sort it out.

Secondly, cost estimating, which is closely tied to accounting and financial management, is new and considered tangential to other, more mature, performance management systems. My own firm is involved in producing a solution in support of this process, collecting data related to these reports (known collectively in DoD as the 1921 reports), and even after working to place that data in a common data lake, exploring with organizations what it tells us, since we are only now learning what it tells us. This is classical KDD–Knowledge Discovery in Data–and a worthwhile exercise.

I’ve also advocated going one step further in favor of the collection of financial performance data (known as the Contract Funds Status Report), which is an essential reporting requirement, but am frustrated to find no one willing to take ownership of the guidance regarding data collection. The tragedy here is that cost performance, known broadly as Earned Value Management, is a technique related to the value of work performance against other financial and project planning measures (a baseline and actuals). But in a business (or any enterprise), the fuel that drives the engine are finance-related, and two essential measures are margin and cash-flow. The CFSR is a report of program cash-flow and financial execution. It is an early measure of whether a program will execute its work in any given time-frame, and provides a reality check on the statistical measures of performance against baseline. It is also a necessary logic check for comptrollers and other budget decision-makers.

Thus, as it relates to data, there has been some push-back against a settled schema, where the government accepts flat files and converts the data to the appropriate format. I see this as an acceptable transient solution, but not an ultimate one. It is essential to collect both cost estimating and contract funds status information to perform any number of operations that relate to “actionable” intelligence: having the right executable money at the right time, a reality check against statistical and predictive measures, value analysis, and measures of ROI in development, just to name a few.

I look forward to continuing this conversation.

To Be or Not to Be Agile

The Section 809 Panel, which is the latest iteration of acquisition reform panels, has recommended that performance management using earned value not be mandated for efforts using Agile. It goes on, however, to assert that program executive “should approve appropriate project monitoring and control methods, which may include EVM, that provide faith in the quality of data and, at a minimum, track schedule, cost, and estimate at completion.”

Okay…the panel is then mute on what those monitoring and control measure will be. Significantly, if only subtly, the #NoEstimates crowd took a hit since the panel recommends and specifies data quality, schedule, cost and EAC. Sounds a lot like a form of EVM to me.

I must admit to be a skeptic when it comes to swallowing the Agile doctrine whole. Its micro-economic foundations are weak and much of it sounds like ideology–bad ideology at best and disproved ideology at worst (specifically related to the woo-woo about self-organization…think of the last speculative bubble and resulting financial crisis and depression along these lines).

When it comes to named methodologies I am somewhat from Missouri. I apply (and have in previous efforts in the Dark Ages back when I wore a uniform) applied Kanban, teaming, adaptive development (enhanced greatly today by using modern low-code technology), and short sprints that result in releasable modules. But keep in mind that these things were out there long before they were grouped under a common heading.

Perhaps Agile is now a convenient catch-all for best practices. But if that is the case then software development projects using this redefined version of Agile deserve no special dispensation. But I was schooled a bit by an Agile program manager during a side conversation and am always open to understanding things better and revising my perspectives. It’s just that there was never a Waterfall/Agile dichotomy just as there never really was a Spiral/Waterfall dichotomy. These were simply convenient development models to describe a process that were geared to the technology of the moment.

There are very good people on the job exploring these issues on the Agile Working Group in the IPMD and I look forward to seeing what they continue to come up with.

Rip Van Winkle Speaks!

The only disappointing presentation occurred on the second and last day of the meeting. It seemed we were treated by a voice from somewhere around the year 2003 that, in what can only be described as performance art involving free association, talked about wandering the desert, achieving certification for a piece of software (which virtually all of the software providers in the room have successfully navigated at one time or another), discovering that cost and schedule performance data can be integrated (ignoring the work of the last ten years on the part of, well, a good many people in the room), that there was this process known as the Integrated Baseline Review (which, again, a good many people in the room had collaborated on to both define and make workable), and–lo and behold–the software industry uses schemas and APIs to capture data (known in Software Development 101 as ETL). He then topped off his meander by an unethical excursion into product endorsement, selected through an opaque process.

For this last, the speaker was either unaware or didn’t care (usually called tone-deafness) that the event’s expenses were sponsored by a software solution provider (not mine). But it is also as if the individual speaking was completely unaware of the work behind the various many topics that I’ve listed above this subsection, ignoring and undermining the hard work of the other stakeholders that make up our community.

On the whole an entertaining bit of poppycock, which leads me to…

A Word about the Role of Professional Organizations (Somewhat Inside Baseball)

In this blog, and in my interactions with other professionals at–well–professional conferences–I check my self-interest in at the door and publicly take a non-commercial stance. It is a position that is expected and, I think, appreciated. For those who follow me on social networking like LinkedIn, posts from my WordPress blog originate from a separate source from the commercial announcements that are linked to my page that originate from my company.

If there are exhibitor areas, as some conferences and workshops do have, that is one thing. That’s where we compete and play; and in private side conversations customers and strategic partners will sometimes use the opportunity as a convenience to discuss future plans and specific issues that are clearly business-related. But these are the exceptions to the general rule, and there are a couple of reasons for this, especially at this venue.

One is because, given that while it is a large market, it is a small community, and virtually everyone at the regular meetings and conferences I attend already know that I am the CEO and owner of a small software company. But the IPMD is neutral ground. It is a place where government and industry stakeholders, who in other roles and circumstances are in a contractual or competing relationship, come to work out the best way of hashing out processes and procedures that will hopefully improve the discipline of program and project management. It is also a place of discovery, where policies, new ideas, and technologies can be vetted in an environment of collaboration.

Another reason for taking a neutral stance is simply because it is both the most ethical and productive one. Twenty years ago–and even in some of the intervening years–self-serving behavior was acceptable at the IPMD meetings where both leadership and membership used the venue as a basis for advancing personal agendas or those of their friends, often involving backbiting and character assassination. Some of those people, few in number, still attend these meetings.

I am not unfamiliar with the last–having been a target at one point by a couple of them but, at the end of the day, such assertions turned out to be without merit, undermining the credibility of the individuals involved, rightfully calling into question the quality of their character. Such actions cannot help but undermine the credibility and pollute the atmosphere of the organization in which they associate, as well.

Finally, the companies and organizations that sponsor these meetings–which are not cheap to organize, which I know from having done so in the past–deserve to have the benefit of acknowledgment. It’s just good manners to play nice when someone else is footing the bill–you gotta dance with those that brung you. I know my competitors and respect them (with perhaps one or two exceptions). We even occasionally socialize with each other and continue long-term friendships and friendly associations. Burning bridges is just not my thing.

On the whole, however, the NDIA IPMD meetings–and this one, in particular–was a productive and positive one, focused on the future and in professional development. That’s where, I think, that as a community we need to be and need to stay. I always learn something new and get my dose of reality from a broad-based perspective. In getting here the leadership of the organization (and the vast majority of the membership) is to be commended, as well as the recent past and current members of the Department of Defense, especially since the formation of the Performance Assessments and Root Cause Analysis (PARCA) office.

In closing, there were other items of note discussed, along with what can only be described as the best pair of keynote addresses that I’ve heard in one meeting. I’ll have more to say about some of the concepts and ideas that were presented there in future posts.

The Revolution Will Not Be Televised — The Sustainability Manifesto for Projects

While doing stuff and living life (which seems to take me away from writing) there were a good many interesting things written on project management.  The very insightful Dave Gordon at his blog, The Practicing IT Project Manager, provides a useful weekly list of the latest contributions to the literature that are of note.  If you haven’t checked it out please do so–I recommend it highly.

While I was away Dave posted to an interesting link on the concept of sustainability in project management.  Along those lines three PM professionals have proposed a Sustainability Manifesto for Projects.  As Dave points out in his own post on the topic, it rests on three basic principles:

  • Benefits realization over metrics limited to time, scope, and cost
  • Value for many over value of money
  • The long-term impact of our projects over their immediate results

These are worthy goals and no one needs to have me rain on their parade.  I would like to see these ethical principles, which is what they really are, incorporated into how we all conduct ourselves in business.  But then there is reality–the “is” over the “ought.”

For example, Dave and I have had some correspondence regarding the nature of the marketplace in which we operate through this blog.  Some time ago I wrote a series of posts here, here, and here providing an analysis of the markets in which we operate both in macroeconomic and microeconomic terms.

This came in response to one my colleagues making the counterfactual assertion that we operate in a “free market” based on the concept of “private enterprise.”  Apparently, such just-so stories are lies we have to tell ourselves to make the hypocrisy of daily life bearable.  But, to bring the point home, in talking about the concept of sustainability, what concrete measures will the authors of the manifesto bring to the table to counter the financialization of American business that has occurred of the past 35 years?

For example, the news lately has been replete with stories of companies moving plants from the United States to Mexico.  This despite rising and record corporate profits during a period of stagnating median working class incomes.  Free trade and globalization have been cited as the cause, but this involves more hand waving and the invocation of mantras, rather than analysis.  There has also been the predictable invocations of the Ayn Randian cult and the pseudoscience* of Social Darwinism.  Those on the opposite side of the debate characterize things as a morality play, with the public good versus greed being the main issue.  All of these explanations miss their mark, some more than others.

An article setting aside a few myths was recently published by Jonathan Rothwell at Brookings, which came to me via Mark Thoma’s blog, in the article, “Make elites compete: Why the 1% earn so much and what to do about it”.  Rothwell looks at the relative gains of the market over the last 40 years and finds that corporate profits, while doing well, have not been the driver of inequality that Robert Reich and other economists would have it be.  In looking at another myth that has been promulgated by Greg Mankiw, he finds that the rewards of one’s labors is not related to any special intelligence or skill.  On the contrary, one’s entry into the 1% is actually related to what industry one chooses to enter, regardless of all other factors.  This disparity is known as a “pay premium”.  As expected, petroleum and coal products, financial instruments, financial institutions, and lawyers, are at the top of the pay premium.  What is not, against all expectations of popular culture and popular economic writing, is the IT industry–hardware, software, etc.  Though they are the poster children of new technology, Bill Gates, Mark Zuckerburg, and others are the exception to the rule in an industry that is marked by a 90% failure rate.  Our most educated and talented people–those in science, engineering, the arts, and academia–are poorly paid–with negative pay premiums associated with their vocations.

The financialization of the economy is not a new or unnoticed phenomenon.  Kevin Phillips, in Wealth and Democracy, which was written in 2003, noted this trend.  There have been others.  What has not happened as a result is a national discussion on what to do about it, particularly in defining the term “sustainability”.

For those of us who have worked in the acquisition community, the practical impact of financialization and de-industrialization have made logistics challenging to say the least.  As a young contract negotiator and Navy Contracting Officer, I was challenged to support the fleet when any kind of fabrication or production was involved, especially in non-stocked machined spares of any significant complexity or size.  Oftentimes my search would find that the company that manufactured the items was out of business, its pieces sold off during Chapter 11, and most of the production work for those items still available done seasonally out of country.  My “out” at the time–during the height of the Cold War–was to take the technical specs, which were paid for and therefore owned by the government, to one of the Navy industrial activities for fabrication and production.  The skillset for such work was still fairly widespread, supported by the quality control provided by a fairly well-unionized and trade-based workforce–especially among machinists and other skilled workers.

Given the new and unique ways judges and lawyers have applied privatized IP law to items financed by the public, such opportunities to support our public institutions and infrastructure, as I was able, have been largely closed out.  Furthermore, the places to send such work, where possible, have also gotten vanishingly smaller.  Perhaps digital printing will be the savior for manufacturing that it is touted to be.  What it will not do is stitch back the social fabric that has been ripped apart in communities hollowed out by the loss of their economic base, which, when replaced, comes with lowered expectations and quality of life–and often shortened lives.

In the end, though, such “fixes” benefit a shrinkingly few individuals at the expense of the democratic enterprise.  Capitalism did not exist when the country was formed, despite the assertion of polemicists to link the economic system to our democratic government.  Smith did not write his pre-modern scientific tract until 1776, and much of what it meant was years off into the future, and its relevance given what we’ve learned over the last 240 years about human nature and our world is up for debate.  What was not part of such a discussion back then–and would not have been understood–was the concept of sustainability.  Sustainability in the study of healthy ecosystems usually involves the maintenance of great diversity and the flourishing of life that denotes health.  This is science.  Economics, despite Keynes and others, is still largely rooted in 18th and 19th century pseudoscience.

I know of no fix or commitment to a sustainability manifesto that includes global, environmental, and social sustainability that makes this possible short of a major intellectual, social or political movement willing to make a long-term commitment to incremental, achievable goals toward that ultimate end.  Otherwise it’s just the mental equivalent to camping out in Zuccotti Park.  The anger we note around us during this election year of 2016 (our year of discontent) is a natural human reaction to the end of an idea, which has outlived its explanatory power and, therefore, its usefulness.  Which way shall we lurch?

The Sustainability Manifesto for Projects, then, is a modest proposal.  It may also simply be a sign of the times, albeit a rational one.  As such, it leaves open a lot of questions, and most of these questions cannot be addressed or determined by the people to which it is targeted: project managers, who are usually simply employees of a larger enterprise.  People behave as they are treated–to the incentives and disincentives presented to them, oftentimes not completely apparent on the conscious level.  Thus, I’m not sure if this manifesto hits its mark or even the right one.

*This term is often misunderstood by non-scientists.  Pseudoscience means non-science, just as alternative medicine means non-medicine.  If any of the various hypotheses of pseudoscience are found true, given proper vetting and methodology, that proposition would simply be called science.  Just as alternative methods of treatment, if found effective and consistent, given proper controls, would simply be called medicine.

Sunday Contemplation — Race Matters — Scalia’s Shameful Invocation of Racial Inferiority in 2015

To start out the year 2016 I’ve decided to write about something that has stuck in my craw since the issue first came about.  I find it galling, really, to have to write about something of this sort in the new year of 2016 but it is there nonetheless and I cannot in good conscience not write about it.

The topic at hand is the questioning by Supreme Court Justice Antonin Scalia during oral arguments in the affirmative action case, Fisher vs. University of Texas at Austin.  His comments are well documented but they are worth recounting, only because this line of thinking is shared by a significant proportion of the population.  Below is the full exchange begun by Gregory Garre, the attorney for UT.

Garre:  “If this Court rules that the University of Texas can’t consider race, or if it rules that universities that consider race have to die a death of a thousand cuts for doing so, we know exactly what’s going to happen…Experience tells us that.” (When the use of race has been dropped elsewhere) “diversity plummeted.”

Scalia:  “There are those who contend that it does not benefit African­-Americans to — ­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a less ­—­ a slower­-track school where they do well. One of ­­— one of the briefs pointed out that ­­— that most of the — ­­most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re ­­— that they’re being pushed ahead in ­—­ in classes that are too ­­— too fast for them. I’m just not impressed by the fact that —­­ that the University of Texas may have fewer (black students). Maybe it ought to have fewer.”

Garre:  “This court heard and rejected that argument, with respect, Justice Scalia….frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.”

I want to get back to Scalia’s comments, but first it is useful to go over the facts of this case, which seem to barely warrant a review by the Supreme Court.  UT admits the overwhelming majority of its students based on the Top Ten Program, that is, if you graduated from a Texas high school within the top 10% of your class, you were admitted if you applied.  In the year that Fisher applied, 92% of the entering class gained admission on that basis.  For the other 8% of seats that were open, as Vox explained, other factors were taken into consideration including based on a “holistic” process.  Two scores were given from this process: one for essays, leadership activities, and background, which included race; and the other based on grades and test scores.  The overwhelming majority of students accepted for admission under this process were white.  Given that the inclusion of race as a factor was not a discriminatory quota, there is little here except to assert, in general, that any consideration of race is unconstitutional under the Equal Protection Clause of the 14th Amendment.

The majority of legal analysis of the Fisher case itself has centered on Grutter vs. Bollinger, mostly because it is the Supreme Court’s latest statement on the issue of affirmative action.  In this case, the Court ruled that University of Michigan Law School did not discriminate when taking race into account among a number of other factors in order to ensure a diverse student body, especially in including previously disenfranchised and excluded minorities, as long as there was a compelling interest in doing so and it passed the definition of “strict scrutiny.”

Given that the Court attempts to maintain continuity and precedent (known by the Latin term stare decisis), the wellspring for this decision was really based on the case of University of California Regents v. Bakke from 1978.  There are two competing constitutional interests at play according to the majority opinion written by Justice Lewis Powell.  One is to ensure that the Equal Protection Clause of the 14th Amendment apply not only to protect the interests of African-Americans in “dialing back the clock to 1868” in a United States that no longer resembles the one when the amendment was passed, but to all persons.  The other is under the academic freedom afforded schools and colleges under the First Amendment known as the “four essential freedoms.”

Forgetting in his argument that Justice Powell was a good constitutional judge but a poor historian, this other interest may come as a surprise to those not familiar with these competing interests.  This is not surprising given the partisan–and many racist–arguments against affirmative action.  Powell invokes two previous cases in outlining the four essential freedoms.  He writes:

“Mr. Justice Frankfurter summarized the “four essential freedoms” that constitute academic freedom:

“`It is the business of a university to provide that atmosphere which is most conductive to speculation, experiment and creation. It is an atmosphere in which there prevail “the four essential freedoms” of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'”  Sweezy v. New Hampshire, 354 U. S. 234, 263 (1957) (concurring in result).

Our national commitment to the safeguarding of these freedoms within university communities was emphasized in Keyshian v. Board of Regents, 385 U.S. 589, 603 (1967):

“Our Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment . . . . The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection.’  United States v. Associated Press, 523 F. Supp. 362, 372.”

What Powell indicated was that, given these conflicting rights (given that no right is absolute), that when the university takes racial factors into account into admissions that there needs to be both a substantial state interest in ensuring diversity, and that strict scrutiny must be applied to such racial or ethnic factoring.  The first time around, when the Supreme Court remanded the Fisher case back to the appellate court in 2013, the majority indicated that while not a quota–and hence not an outright violation of the Equal Protection Clause–that the court had not applied strict scrutiny in determining whether UT had established a substantial state interest.  Or, at least, that’s what it seemed given that the logic which comes down by the Roberts Court is oftentimes sophomoric.

It is important to note that the UT Top Ten Program has increased diversity.  The reason is that the top ten percent, regardless of school, qualify for the program.  This effect is rooted in discrimination in housing patterns that extend back to the late 19th century when, first, Jim Crow laws were passed in the southern states (such as Texas) to essentially re-enslave and disenfranchise the freedmen.  Many people will be surprised to know that these laws continued in force well into the 1960s, the last case being brought to overturn the last vestiges of the race laws in the mid-1970s.  Then in the north beginning in the 1920s, first, local ordinance, and then, when those were struck down, restrictive covenants were applied to keep African Americans and other minority and ethnic groups out of white, Anglo-Saxon protestant neighborhoods.  When restrictive covenants were eventually overturned, real estate brokers and bankers applied the process of “redlining.”  That is, home loans and mortgages were made harder to qualify for or denied to certain racial and ethnic groups.  The map was lined in red to keep people in their “place.”  Ostensibly, this practice was outlawed with the passage of the Fair Housing Act in 1968, but the practice has continued to this day.  Furthermore, for most of our history African Americans have had to pay a premium for better housing that otherwise would have gone for a lower market price.  It was racial fear and manipulation that caused white flight in giving the impression of falling real estate value when African-Americans were allowed to move into a predominately white community.  The sordid history behind this phenomena are amply documented in the National Book Award winning history, Arc of Justice by historian Kevin Boyle.

When one hears political and opinion leaders assert that the housing crisis was caused by diversity targets in sub-prime loans they are not only stating a counterfactual and providing bad economic analysis, but are also engaged in race baiting.  It is redlining that caused minorities to be most vulnerable when the bubble burst because they tended to pay usurious interest rates–or were funneled into subprime balloon mortgages–in order to derive the same benefits of home ownership as other groups, who were afforded more reasonable financing.  Given that most of these are working people living paycheck to paycheck, it takes no great insight to know that they will be the first to default during an unusually severe economic downturn.

Thus, when one considers that most public school funding is derived from real estate property taxes and that the average homeowner based on a 2013 survey stays in their home 13 years (with the historical average varying between 10 and 16 years since 1997), the effects of previously discriminatory practices–and school funding, as well as socio-economic and racial composition–depending the rate of turnover in any particular neighborhood, can last a generation or more.  Despite political arguments to the contrary, monies spent on schools plays a significant role in student achievement.  It would have been appropriate for Justice Powell in Bakke to have at least acknowledged this history as well as the history of new immigrants and minorities that he invoked in his decision in expressing his concern about turning back the clock.

It is important to state clearly that there is no doubt things have improved despite Bakke, and that it was probably a largely well-conceived adjudication.  Despite claims to the contrary, the Great Society and Civil Rights reforms of the 1960s have eliminated the worst de jure and de facto day-to-day indignities, fear of violence, discrimination, and denial of human rights that African-Americans lived under well into the late 20th century.  Opportunities have opened up and it is amazing that over the last 50 years that we can find young African-Americans who have never suffered the indignity of bias or discrimination due to the color of their skin.  But as with the recent problems in policingcriminal justice, and the subtle racism that exists in job selection and opportunities, among other issues, it is apparent that we still have work to do for us to fully overcome our history of slavery, Jim Crow, racism, discrimination, and racial terrorism.  For when one looks back, the fact of the matter is that much of this country–and the basis of its wealth–was built on the backs of African American slavery and oppression.  Without the African-American experience, American culture is indecipherable.  New immigrants, when taking advantage of the inherited advantages of being American also, unknowing to them, inherit the history that made those advantages possible.

But now back to Justice Scalia’s remarks.  Had Scalia restricted himself to the constitutional issues addressed by Powell in Bakke, there would be no concern.  But this is not what the members of this SCOTUS are about.  In the case of Scalia, his remarks would have been at home in the post-Reconstruction south in the late 19th and early 20th century, along with Spencer’s Social Darwinism and eugenics.  This was the period that endorsed separate but “equal” facilities for African-Americans.  Scalia seems to be suggesting a modern version of it in higher education.  But we have seen these ideas invoked fairly recently elsewhere, particularly in the discredited work of Herrnstein and Murray in publishing their work The Bell Curve.  His comments are what is called “Begging the Question.”  Scalia “begs the question” in assuming in his remarks that African-Americans are not qualified generally for UT, and that they do not possess the mental or educational skills to succeed there.  His remarks also reveal someone who thinks in terms of hierarchy and aristocracy, that there are levels of human fitness and superiority, which also underlies such concepts as “makers” and “takers.”

Apologists in academia and elsewhere have attempted to temper the justice’s words by invoking the concept of mismatch in college admissions.  It is often referred to as a “theory” but that would elevate it to have an authority that it does not possess.  It is Cargo Cult Social Science based on loosely correlated statistics that provides a veneer of respectability to those who still seek to explain inequality in a society that claims fancifully to be meritocratic, or egalitarian, or a land of opportunity, but which is not really any of these.  But that is not the underlying assumption in Scalia’s remarks.  He begins with calling out African Americans (and restricts himself to African Americans among minorities) and then goes from there.  Further studies on mismatch (link below) show that it is a common phenomenon which affects all racial and ethnic groups.  No system is perfect, and especially not one conceived by society or academia.

But even putting aside the racist assumptions of Justice Scalia, does the mismatch concept even pass the “so-what?” test?  What if one is thrown into a situation for which they are poorly prepared?  In real life we call this “sink or swim.”  Does it really do harm?  There are all kinds of casuistry put forth but, despite assertions to the contrary, the facts are not conclusive.

To give but one famous historical example that undermines this bit of sophistry, the fact that General Lee graduated second in his West Point class and U.S. Grant graduated in the bottom half no doubt influenced them later in life.  Lee was able to defeat with great skill generals who were unused to defeat and disappointment, and routed them from the field.  But his supreme confidence in his abilities caused his utter failure at Gettysburg.  Grant, on the other hand, who experienced failure both as a civilian and on the battlefield, grew unafraid of it and succeeded in the end.  The fact that someone experiences a setback or must work hard in order to succeed is not such a bad thing.  It is how the individual reacts in the face of disappointment or long odds that we call character.  It is the standard means of training Naval officers at sea and why mentoring is so important.  (Only puffed up college professors don’t feel that their job is teaching).  Yes, the world is a big place; yes, there are things you don’t know, but absent a severe learning or emotional disability you can learn them.

But seeing this self-evident insight would assume rational thought and evidence.  For example, many of the characteristics attributed to African-Americans in The Bell Curve have since been overcome, such as significantly rising math and reading scores on standardized tests that are closing the gap with white achievement.  If these were innate or unsolvable deficiencies how was it possible that public policy is alleviating the gap?  Does it harm African-Americans to be challenged to do so?  Given the disreputable history of race in America what is more likely: that African-Americans are innately less likely to succeed at UT (and increasing numbers entered under the Top Ten Program), or that the history of unequal educational opportunity deserves to be addressed in the most equitable and constitutional manner?  Or that unequal treatment and the socio-economic effects of economic discrimination, which still exist, have a great effect on minorities that require a reasoned assessment of the individual in taking into account mitigating circumstances, including racial or ethnic background, in college admissions for those on the fence?

That a Supreme Court justice can voice such stupidity and bias in the year 2015 is evidence enough that there is something wrong with our judicial system.  I beg to differ with the proposition voiced by the late Senator Roman Hruska in defending Nixon’s appointment of G. Harold Carswell to the Supreme Court (which was rejected), that mediocrity deserves representation on the court.  While we can’t always find a Brandeis, Cardozo, or Frankfurter (or a Holmes, Brennan, Black, Story, or Warren), we can at least attempt to do so.  Unfortunately we are stuck with a Scalia and his ilk.