Lack of FAR clauses in Federal procurements

[Guest Vern Edwards]

If the government does not want its COs to break the rules it should punish those who do by terminating their appointments and taking other disciplinary measures against them. It should not penalize contractors and then yap about business "partners." And it should make better CO appointments in the first place.

[metteec]

If the government does not want its COs to break the rules it should punish those who do by terminating their appointments and taking other disciplinary measures against them. It should not penalize contractors and then yap about business "partners." And it should make better CO appointments in the first place.

Vern, I agree with you that COs that break the rules should be punished and that agencies should be more judicious about their appointment decisions. Further, I think lazy COs should be punished, as well. I have had a CO from another agency tell me that it did not matter if they included the correct clauses in a contract because of the Christian Doctrine. Incompetence, laziness, or plain disregard of the regulations is not acceptable. I think what is worse though is that management that either is oblivious or fails to address the problem.

While I understand your position, I have to disagree that the Christian doctrine penalizes contractors unfairly.

Just to revisit the GL Christensen and Associates case, Christensen's claim for over $5 million in termination costs and anticipatory profit because the Army CO terminated its housing project contract for convenience. There CO had not physically included the termination for convenience clause in the solicitation or contract. Christensen said that the termination was a breach of contract because of the absence of the clause. The court held that Christensen was not entitled to anticipatory profit because the termination for convenience clause was incorporated in the contract by a matter of law. Thereby, the Army's termination for convenience did not represent a breach of contract, and the Contractor was not entitled to anticipatory profit.

The FAR is a substantive regulation that goes through public notice and hearing. The prudent business would at least familiarize itself with the policies of their customer to which they seek business. Further, that business has a duty to discover the laws and regulations that are applicable to a specific acquisition, just as they would determine the applicable laws in their specific trade. The business chooses to do dealings with the Federal Government, and thereby accepts the nuances/nuisances associated in exchange for the potential to earn profit. Let us not equate these businesses to fawns prancing in the proverbial FARest.

Like the Federal Government, Contractors should also have competent and knowledgeable representatives. We are a nation of laws. Neither a Contractor nor a CO may abridge these laws; they are beyond us, you, and me. Violating the law even in ignorance, and even if it is shared between two ignorant people, is still injustice. In this case, both CO and Contractor deserve the condemnation. The only innocent party here is the taxpayer, which would be punished if not for the Christian doctrine.

The Court of Federal Claims got it right. I think that your issue is not with their decision, but that the Army CO was not at least reprimanded for his incompetence.

[Retreadfed]

For an example of how contracting officers can get wrapped around the axel when it comes to the Christian Doctrine, see

http://www.asbca.mil/Decisions/2000/49827a.pdf

Note the reference to an earlier decision involving the same claim where the government asserted the wrong Termination clause was incorporated into the contract by operation of the Christian Doctrine.

[Guest Vern Edwards]

metteec:

I disagree. Most contractors are small entities. They are not Boeings and Lockheeds. Their personnel know little about the government's regulatory system. Don't criticize them for that. Most COs don't know the system either. Most contractors don't have large staffs and don't have money to spend on sending people to expensive government contracting courses. They just want to sell their products and services. What's the government's excuse for its own COs not knowing its own rules?

My experience has taught me that most COs do not know the FAR well and do not keep up with regulatory changes. They are lucky enough to have lawyers and procurement staffs to check much of their work. Even then they fail to comply with the law. Why should the government get a free ride when its own people cannot keep up with its regulations? Why should contractors have to suffer?

I don't think the Court of Federal Claims got it right. And by the way, not all courts of appeals have bought into the Christian Doctrine. The decisions of the Federal Circuit and its predecessors, such as the old Court of Claims, are not binding precedent outside of its jurisdiction.

[ron vogt]

It is either a sad commentary or a hilarious one, or maybe both, that a long-standing principle of government contracting law was best summed up in "Animal House":

"You f****d up. You trusted us."