dwgerard

The tests proposed are essentially those used to justify torture when fighting terrorism. "The end justifies the means" has been used to rationalize any number of illegal and sometimes reprehensible actions. I think the problem is people--be they contracting attorneys, contracting officers, administrators, or the workers--who say "no you can't do that" and stop there. As several have pointed out, you can frequently find another, right way to do things, but it often takes more work and generally requires advance planning.

The problem with that is the advance planning and work need to be done by the requiring activity. That activity often see the world in a self centered way where they are important, while the card holder/contracting shop AND the rules they are required to follow are not important. That is showing up more and more as leaders are not buying into the idea of contracting being a profession and not just a fancy name for a clerk.

I also am beginning to see that some in contracting WANT to be just clerks, shuffle responsibility off to legal or back on the programs, or generally don't want to be bothered with fighting for respect by demanding that other activities do their job correctly. When procurement action lead times (PALT) are not established or if established adhered to, then we might as well be clerks again, because we will only have a fraction of the time we need to do things in a professional manner. I for one do not see the usual crisis management as making things better, which is what we are usually left with when the requirement has to be done in a manner where the ethics of the rules are questioned.

In my former office this problem happened on a number of occasions, and each time it was due to senior managers putting pressure on lower grade employees to break the rules. In at least one case, an SES told a GS-7 to either do what she was told, or plan on looking for another job.

When we found out, there was virtually nothing we could do because the SES over our office did not want to get into a tussle with the other SES in headquarters, so we had to simply document the file and move on. In organizations like fomerfeds, good managers and executives are true blessings. In an organization like the one I used to work in, bad managers and executives are like having a bad case of chiggers, even after they are gone you still feel the itch.

CM,

I don't understand your last sentence as written. Are you saying the DL engineers are being absorbed against their wills, that they are grudgingly accepting the positions because they fear losing their jobs, or something else? Last I heard, press gangs were not running around DC or anywhere else in the US, so I would see the first as being a bit outlandish, but that is implied by your sentence.

Not long ago, I watched an entire PWC organization get disestablished, and many of the technical and contracting employees were absorbed into a larger service-wide organization. Some of the employees were let go or retired early, and several of those ended up working for contractors supporting the same functions they had performed as civil service employees. Most of the PWC employees were "not very happy" about that, but had little choice in the matter. But they DID have a choice; they could resign and find another job if they were so unhappy.

I would imagine that the contractors who are being "absorbed" may see that their jobs are eventually going to go away (some of us see that in the tea leaves), so are preemptively resolving that problem by crossing over, but that is a choice. It was not long ago that flow was moving in the other direction, so I do not see this as a tragedy; it is simply the ebb and flow of politics and trends in the government. If your around long enough, you will probably see it go back the other way, and find civil service employees moving into contractor positions for a season, only to return again to the government side when the season changes.

I wonder if the geese see the move to the north or the south as a big deal and complain much? I guess that is why they honk all the way from the Artic Circle to Florida, and are honking outside my window right now!

I'm not trying to be disrespectful with that last part, just seeing how our organizations sometimes mirror nature, and trying to put it into that perspective.

I am working on a contract right now with a CLIN for technical data that will be in the base and also in each option year. We intend, and have notified the contractor, that we do not intend to award that CLIN in either the base or an option year until the FINAL period of the contract, whenever that is. We have added the price for each CLIN into the Government Estimate, and expect the contractor to price each TD CLIN as well, so it will be a set FFP no matter when we need the data.

I see adding the extension clause at 52.217-8 as the same thing, we just have to think a little differently to make the adjustment.

With that said, I agree that the GAO seems to have left its common sense hat at home for some time now on this issue, and should run home and get it soon.

I like what Vern said in his post at 12:27 PM a lot. I have negotiated union contracts representing the union and such techniques as ""Well, there's a first time for everything." Then I'd smile, real friendly-like." were my specialty.

CG1, has anyone actually sat down and told the contractor that its the "cap" or the highway? In my office right now, there is significantly more competition for our contracts, and the contractors are accepting lower costs as a result. I see your situation as no different, and would make sure the contractor was aware of that fact. With a really friendly smile.

Mike,

If right and wrong is in the eye of the beholder, so is the concept of whether or not an intentional contract breach is ethical. I see a signed contract as a formal agreement to perform, something that in the past was done with a handshake. I have also been taught that my word is my bond, and if I promise to do something, to do otherwise is wrong.

Not everyone believes that, and it may not be taught in Harvard either, but perhaps many of the scandals of the last decade or so may have been avoided if such a system was still taught as it was in the past.

Thanks Joel, unfortunately the network adminstrators here have locked out any changes to the internet options, so I cannot turn on the "accept cookies" feature. I'll download it at home later tonight on my home computer.

Sure wish I could get a full copy of that paper, as all I could get from the link was the abstract.

I agree with Vern as most termination situations are more complicated than a simple "you're done here" in my experience. In all of the situations I worked, most of them inherited, I was able to work them out without a T4D by descoping, compensation from the contractor in the form of extra work along with additional time to complete the work, or allowing subs to take over more responsibility. Those were all construction contracts, I have not had any termination scenarios other than failure to deliver scenarios otherwise, and those are relatively simple.

Perhaps the Contracting Officer would want confirmation that the contractor had received the document and understood the changes contained in that modification. A copy of of the modification with the contractor's signature would be a record in the contract file that the contractor had received and ackowledged the mod.

If the contractor is disputing the T4D, then they might not want to sign the SF-30, but that is between the contractor, their attorneys and the Government. I would not presume to nor am I quailfied, to advise the contractor to any action in this circumstance.

Personally, I would not use the SF-30 signature block for that purpose, I would issue the T4D as a unilateral modification, with a certified letter, receipt requested method of delivery. Fortunately I have not had to do that so far in my career, I have always managed to negotiate a way out for both the Government and the contractor.

Vern,

Thanks for the great reply! I also see that basically the entire organization I am with uses legal as cover for their real or imagined lack of skills in contracting. It also may be a way of deflecting blame for problems that arise such as protests; "Its not my fault, legal signed off on it!".

I have also seen how legal will basically rewrite an RFP, and when they are done, it is hard to even tell what we are purchasing! In many instances, the legal professionals have been great in my experiences. In other commands however, legal reps are not very knowledgeable about contracting and it shows. Sometimes the attorneys are hired without any contract experience and simply thrown into the process.

I hope to be one of the fish that is swimming upstream towards professional respect and knowledge, and it is indeed an arduous journey. I may never reach the end of that journey, but I would rather fail at excellence than succeed at mediocrity.

I like your take on the SOO/SOW/PWS review. In the case I referred to, the PM bypassed the KO and contracts shop (prior to my being assigned to this command), and it went directly from the PM shop to legal. In the future, I will try to work with the PM's here and offer my writing services to "help" them with writing the SOW/SOO/PWS documents. Hopefully, my half of a brain will be successful at that. Unfortunately I am in my final statistics class prior to my dissertation, and the remaining half of my brain may be hopelessly contaminated by the end of this weekend...!

This argument was applied to sales of the C-130 Hercules aircraft a few years ago in my memory. A Contracting Officer wanted to make a purchase of C-130 subassemblies a commercial purchase, arguing that since C-130's have been purchased by non-governmental corporations, that made them commercial. Legal was arguing that it was not commercial, as the C-130's in question were not available to the public as a complete aircraft. Seems to me that if I buy a wiggly hula doll to put on the dash of my F-35, that does not make the hula doll purchase a non-commercial sale since the F-35 is a military only aircraft, but hey, they are legal and get paid to make arguments.

The argument was still ongoing as of my last connection with that discussion, I no longer have access to that forum since I left that job a few years ago. A google search shows that while some C-130 parts and aircraft are now being used in the commercial market, the C-130 is still considered a non-commercial product making some parts and assemblies difficult to obtain for the commercial users of the C-130.

Vern,

Legal is jumping into the mix all to often and assuming the role of deciding what is appropriate, even over the Contracting Officer's opinion. I keep reminding everyone that legal attorneys are advisors and not deciders, but the senior management disagrees with that. Basically, everything goes to legal, and if they say its not "legally sufficient", it never reaches the street. Thjat is increasing, as my organization just instituted "peer reviews", which add no less thant 2 extra legal reviews to each contract action. I asked how an attorney consitutes a peer, and to date I have received no answer.

This is not just a contracting problem, our program managers are now required to write their SOO/SOW in such a way that legal can understand what they are doing. Given that we are working with state of the art computer simulation systems, such a requirement means our program folks need to be pretty effective wordsmiths as well as technical experts in the world of computer simulations. In one instance, the legal advisor could not understand what we are purchasing, so he declared it legally insufficient, and now the program folks are having to teach the legal rep about computer program integration as well as re-write their RFP to satisfy legal. The fact that the Contacting Officer understands the program seems to have little or no bearing on the progress of the project.

Overall, I see this trend as returning the role of the Contracting Officer to that of a clerk, a word that is reappearing in the job description much to my dismay. I certainly did not earn a master's degree to be called a clerk, and will not remain in this career field long if the trend continues.

In my DoD office, it requres a J&A approved by the PARC or his deputy in order to place a interagency (GSA task order) acquisition. That seems to be at odds with "DoD contracting officers are encouraged...", as most KO's would rather go open purchase than deal with the J&A process, which entails legal reviews and at least three levels of supervisory reviews, not to mention a lot more time than many KO's have.

I have worked with both Prism and PD2, and which would be better for you depends upon how complex or simple you need the software to be. In my experience, Prism is simpler than PD2, but is not as complete as PD2 for some functions such as selecting clauses and formatting of documents. Prism also does not have the functionality of "sending" documents that PD2 does, nor can users share documents as easily.

Prism also does not give you a "what you see is what you get" screen; you have to print preview in order to see how the document will print out. The PD2 screen is pretty much a WYSIWYG systems, so if your spacing, or paragraphs are off, you will see it.

PD2 does have a problem when you upload MS Word documents with some kinds of formatting, I found that I had to save a document as text only, then upload the document into PD2 in order to avoid some really funky formating problems.

I am not sure the functionality of Prism with other software for things like accepting PR's from other organizations, in our office they came in as PDF docs that a contractor manually input into Prism. PD2 does allow for other software to input PR's electronically.

In the end, you should get a demo from the software providers and choose base on which suits your purposes the best. I would not choose either without at least looking at the interfaces and seeing it in action.

Seeker said ""Would it be wrong for the contractor to opt for default in order to save the workers' jobs? Should the Government recognize deliberate breach to be a reasonable course of conduct in some circumstances?" The short answer for the first questioni is that it depends. "Wrong" is a relative term based on the ethical, legal or moral standard that applies to the decision. As we cannot tell based on the question, the answer cannot be determined.

As far as the second question, it also depends upon who is deciding what is or is not reasonable, and introduces another variable, ie "circumstances". What is reasonable for seeker and company may not be reasonable for the Contracting Officer. One or both judgements may or may not be acceptable to the judges and reviewing officials that may be involved at different stages of the termination process. How they are impacted by an undefined variable, the circumstances, makes an answer virtually impossible without further information

The only way to resolve the questions is to: a. know what ethical, legal or moral system applies to the question and b. know who it is that will determine reasonable and what the circumstances are.

We can hazard guesses and have "philosophical" discussions, but in the real world, that does not equal a small hill of dried beans. Perhaps my and others advice to "ask the KO" is an attempt to actually try to answer the question in a reasonably accurate manner, as opposed to winging a guess at what seeker is looking for.

But, as this is defined as a philosophical question, my answer is simply this: Using my personal ethics, morals and understanding of the law; it is not wrong to default on a contract to save jobs. With that, I believe it IS legally objectionable, so seeker and company should expect and accept the price for making a morally correct decision. As far as whether or not the government "should" see the action as reasonable, I personally would say a qualified yes IF the contractor made an attempt to mitigate the impact on the government and was honest and open with the government AND the circumstances warranted such a determination.

Vern,

Thanks for the information. I agree that each breach should be looked upon in terms of the contingency, which is what I did in my experience above. If the circumstances were different, say a large business rather than a mom and pop company (literally), my reponse might have been different. But then again, I have never had a large firm come to me openly and plainly the way that small business did. And it was the very first government contract that the mom and pop company had received.

The ethical training I received was "by the book" training, the law is the law, etc. etc. It implied that acquisition personnel were ethically obligated to the government, or taxpayer, depending upon the slide, and that we "had to be impecable in character and ethics".

Using my training as a guide, a contractor who deliberately breached should receive "reward" associated with that action, period. The contractor would have no recourse to mitigate that reward outside of court. Ethically, my belief is that we as contract professionals should, if the contractor is willing and the government is able, work with the parties to try to find a reasonable, fair and legal alternative to a deliberate breach and subsequent termination for default. That belief may not be true of everyone, but it is of me.

No, it is not ethical for the government to use its sovern power in unfair and unreasonable manners. I have fought that battle far more than I have had to deal with unethical contractors. I left one job in the government specifically for that reason. If it arises again in my career, I am prepared and willing to fight it again.

Rhetorically, what could seeker have gained by anything I could have said other than talk to the contracting officer? I could have tried to dissuade him or her from breaching the contract, or supported that breach using the arguement that the social benefit was greater in the breaking of the contract. In either case, I would be telling seeker what seeker wanted to hear or perhaps lecturing if it was not what seeker wanted to hear. Breaching a contract is serious business, and there are ramifications on multiple levels identified above that would be difficult to communicate in this forum.

In this day and age, it is not impossible that the results of a contract breach could, if newsworthy, could become far more than mere damages or being debarred. Only seeker and his or her business associates can answer whether or not that is the case. Is it wrong to breach a contract to save workers jobs or the company from going bankrupt? Perhaps not, but is seeker willing to simply accept the governments actions as a result of the breach? Maybe the contracting officer would not understand or help if seekers firm went to him or her first, but what would it cost if that effort failed? Conversely, what would seekers firm gain if the contracting officer was one of the rare ones that would be willing to work it out? Those two should also be in the business decision that needs to be made on whether or not to breach the contract.

Vern,

I agree with the concepts that Judge Posner raises in that a breach of contract must have a price for such an action. That is the law, which is different than ethics. A person can be legally correct and ethically wrong, a state that seems to be worth one heck of a brass ring these days as so many of our leaders are seem to be trying to reach that nirvana.

Regarding the Judge Posner's position, have any of the other courts or judges accepted that position? Is it truly the case where our legal system is separating itself from ethics? I just had my annual ethics refresher training a few weeks ago, and it seems to be alive and well here at my command, but that is not contract law.

I don't really see my first post as lecturing, perhaps I am wrong in that understanding. If so, I apologize for that tone. I still stand by my advice though, there is only one individual who can say one way or the other which direction the breach will go, and that is the contracting officer. Seeker can get our opinions, legal opinions, and research all the cases, but without consulting with the contracting officer before the action occurs, they will have little or no impact on what happens to seeker's firm afterwards.

I have one experience in this area; a small business contemplated walking away from a contract to renovate a trailer at a military installation that I was adminstering. Perhaps in their innnocence, they contact me to ask what they should do. I did not lower the boom, throw the FAR at them, or otherwise try to exact a price for their asking, I started asking questions. When I found out why they wanted to walk away, I found a way for them to continue to work, adjusted some the terms of the contract other than the price, and the work was successfully completed, albeit later than originally planned on. A defeat for both was turned into a win for both.

Maybe I am unusual, but I do believe that a contractor is better off trying to work it out with the contracting officer before committing a breach than to commit a breach without at least trying to work it out. If contracting officers punish contractors who do try to work it out with them, without trying to mitigate the problem, then they are doing a disservice to their profession. We are the fulcrum between the private and public, the contractor and the government; we should be able to see both sides and help both to reach an equitable position so long as it is possible.

If you would take the time to read my post more carefully, you would see that I did not say I would not respond, only that I would not respond to all of the considerations.

If you do not want to be lectured to, then do not ask any questions.

If you already have done the research and spoken to lawyers, why would you still be looking for answers on a website?

As far as a court deciding that the financial reward for a breach is compensation for the ethical violation, well, I suppose the court does not get the separation of church and state thing we have in our government. A financial crime is not made ethical by the financial gain, and welching on a deal for financial reasons is still welching on a deal. Ethics is more than a financial or "social gain" issue, it is right and wrong, standing by your word and signature on a contract. In this courts opinion, I guess the law is subservient to the dollar. I do not support that position, and I doubt that such a position would survive a tour of the Supreme Court. These days, I might be wrong about that.

You asked if the government should recognize that a deliberate breach might be a reasonable course of action. My recommendation above to bring the topic up with your contracting office is the ONLY way you can get an answer to that question, as it is up to that individual to make that determination.

There are ethical, legal, financial and business considerations to this question that I for one would not begin to respond to. In any case, you should be talking to your contracting officer, putting all of your information on the table and be prepared to find a reasonable way to resolve your problem.

Simply walking away without even trying to work things out openly with the Government is unethical, irresponsible and would probably ensure your company would not be able to work with the Government for a long, long time. Not to mention financial penalties when the Government comes after you for compensation for the recompete costs, which walking away would expose the contract to. See FAR Part 49 for how the Government treats such actions.

Just today a fellow 1102 was embarassed by an attorney after she initially forgot to foward a copy of a document to his office. She herself remedied that mistake and forwarded a copy within a day to that office once she discovered her error. In return, the attorney broadcast his displeasure over the mistake in a very unprofessional manner, and broadcast it to many people who were not part of the process.

In my opinion, that is why many do not want to deal with government attorneys; some of them have a self important attitude that is not something most people care to deal with on a less than mandatory basis.

If a contractor did not bother to keep a complete copy of a contract they were obligated to adhere to, why would it matter what clauses you submitted to them? They already have dismissed the requirements under the base contract; what makes you think they would behave otherwise in your delivery order?

I agree with all of the above responses! I have worked with some outstanding attorneys who knew contract law, gave excellent advice and were a jewel in the crown of the command. Others were basically overpaid procurement analysts and english composition professor wanna-be's, who could not tell me if a clause, provision or instruction was appropriate, but sure could tell me if I had some bad grammar in the statement of work!

As far as involving an attorney into the contracting process early, I have when I had a competent attorney who understood what I needed and his or her role as a legal advisor. I avoided them like the plague when they were more interested in my spelling abilities, as those type only feel they are contributing when they can tear down the other members of the team.

whoops85,

If they did start looking at the color of money down to the installation level, they might have to find new command staff at some installations as O&M funding is being used for new construction quite frequently in my experience. Given the current OP tempo in the Army, I doubt they are ready for that kind of turmoil right now.

K-Law,

The tech weenies blocked my access to WIFCON when I first reported to my previous job with DHS. I went through my chain of command and once they saw how valuable it was, the removed the block for everyone. Of course that particular office has only a few who actually LOOK at WIFCON, but it wasn't like I didn't try to endorse this site!