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For an example of massive and wholesale contracting office and legal office incompetence and/or disregard for the law, see General Dynamics Ordnance and Tactical Systems, Inc., ASBCA No. 56870, 11-2 BA ? 34774, May 26, 2011. Brush up on the rules about basic ordering agreements (BOAs) at FAR 16.703 before you read it.

http://www.asbca.mil/Decisions/2011/56870_052611_WEB.pdf

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my goodness...very poor effort on the part of the Government.

Will the contracting officer suffer any consequences for his or her "poor effort"? A delay in the next promotion? A reduced performance award? A "Highly Successful" instead of an "Outstanding" annual performance rating?

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Interesting questions posed by napolik. Continuing the hypothetical I would suggest the questions posed should be rephrased with "contracting officer/Army legal counsel"?

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These kind of issues where the government continues to fight a lost cause and not fess up to mistakes makes me angry. This started out as a mess and just got progressively worse. Long before it got to the ASBCA, legal counsel should have gone to the head of contracts and explained how it was screwed up. Then they should have sat down with the contractor and worked out an agreement.

Why are they wasting time and effort to fight?

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These kind of issues where the government continues to fight a lost cause and not fess up to mistakes makes me angry. This started out as a mess and just got progressively worse. Long before it got to the ASBCA, legal counsel should have gone to the head of contracts and explained how it was screwed up. Then they should have sat down with the contractor and worked out an agreement.

Why are they wasting time and effort to fight?

Perhaps Legal Counsel is "advocating" on behalf of the agency?

What we need is an affirmative defense for contractors that's equivalent to the "special plea in fraud" defense given to the USG by statute.

H2H

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These kind of issues where the government continues to fight a lost cause and not fess up to mistakes makes me angry. This started out as a mess and just got progressively worse. Long before it got to the ASBCA, legal counsel should have gone to the head of contracts and explained how it was screwed up. Then they should have sat down with the contractor and worked out an agreement.

Why are they wasting time and effort to fight?

It's an $18 million claim, that's why, and I don't think the contractor can prevail. The government was clear from the outset and throughout that it considered the relationship to be a BOA, not a contract. Yes, the government was screwy, but I don't think that the contractor can convince a judge that the government's conduct justified a belief that the relationship was a requirements contract.

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Vern,

Interesting that you're take on the case is that the contractor can't prevail, yet everyone else who commented seems to think that it was the government that was all fouled up.

And, note that the Board said that it couldn't grant summary judgment because it needed further evidence of the parties' intentions. So, the Board thought there were facts that needed to be presented to resolve the nature of the contract.

To me, it's very sloppy work on the part of the government. It was a competitive solicitation, so the offerors have little ability to change the contract language. They can ask questions (to which the government might (or might not) provide clear answers) and try to cover things by putting express understandings in their proposal (but then risk the government giving them a poor evaluation or concluding that they impermissibly took exception to material contract requriements) but beyond that, they can't do much to clean up the contract language.

OLG

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The Government did perform poorly. I wrote it up that way for the December Nash & Cibinic Report. But incompetence and sloppy work is not, in and of itself, a basis for recovery. General Dynamics knew what the government was doing and as far as we know went along without objection until it submitted its claim.

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