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Desparado

Is The FAR Enforceable

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With this recent development http://www.govexec.com/oversight/2016/06/federal-court-agencies-can-punish-employees-refusing-break-rules/129000/?oref=top-story is the FAR even something we as contracting officers can enforce. I know this case is unique and focuses more on the Whistleblower Act, but doesn't it set a bad precedent? Doesn't the FAR come from the U.S. Code and is therefore law?  I always thought so but that is my ignorance apparently. This one just blew me away. What does this do for contracting officers who rely on the FAR to say no to requiring activities and supervisors when they want us to do something wrong?

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Read the Merit System Protection Board Appeal:

Timothy Allen Rainey

Read the decision from the CAFC and then discuss it.  I don't have time to look at it tonight.

Rainey

You are going to need these too from the U. S. Supreme Court.

Department of Homeland Security v. MacLean

CHRYSLER CORP. v. BROWN, (1979)

It is probably best to check the U. S. Code and note the difference in wording.  Use that prepared by Cornell and not the House of Reps.

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In the Federal workplace, the FAR is not something an employee can “enforce” against his supervisor by refusing to do what his supervisor tells him to do.  (By the way, Dr. Rainey was a COR, not a “contracting officer,” as suggested in the GOVEXEC summary.)  Many civil servants are prepared to do the right thing without regard to the impact on their careers.  These folks can stop reading now.

I would encourage Government employees (concerned about discipline) who are directed to do something that (the employee believes) violates a rule to “obey first, then grieve.”  When circumstances permit you to convince your supervisor, obviously do so.  When circumstances permit you to achieve the results your supervisor wants to achieve in a way that is consistent with the rules (as you understand them), try to follow that path.

The general rule from the MSPB perspective is “obey first, then grieve.”  One narrow exception to that MSPB-recognized rule appears in the WPA, which makes it retaliation to discipline an employee for insubordination when that insubordination was required in order for the employee to avoid violating a STATUTE.  (Another exception is irreparable harm, so hopefully this thread will be able to avoid the Lt. Calley/My Lai comparisons.)  For whatever reason, Dr. Rainey (or, more likely, Dr. Rainey’s counsel) either chose not to or was not able to describe why “tell[ing] a contractor to rehire a terminated subcontractor” would have invariably resulted in Dr. Rainey violating a STATUTE.  We can probably Monday morning quarterback that forever, especially if the available facts are as thin as they appear (given the appeal at issue here is from the MSPB ALJ’s granting a motion to dismiss).  The State Department denies the supervisor (Katherine Dhanani) ever ordered Dr. Rainey to do any such thing.  See its Brief and Supplemental Appendix, at 7 n.3 (https://assets.documentcloud.org/documents/2748161/State-Dept-s-Response-Brief-and-Suppl-Appendix-1-1.pdf).

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I'm okay with the outcome.  There are so many COs and CORs with very limited understandings of the FAR and who already hide behind the FAR to say NO to entirely fair requests.  I don't know anything about this case other than what I read in the links, but there was a very simple solution:  the COR could have sent a note to the CO saying he has been directed by his superior to ask the contractor to re-instate a subcontractor, and that he wanted the CO to be aware.  I support the "act now, grieve later" principle, with reasonable exceptions such as provided in the statute.  

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So let's ramp this up a notch... under this "act now, grieve later" approach, you're fine with a supervisor directing a CO to award a contract to a friend of his, regardless of source selection?  The CO should just make the award using their warrant (individually issued and responsible) and then file a grievance? I think that's just crazy. This sets a dangerous precedent and undermines the authority of the warrant, imho.

Also, as noted by Jacques, the supervisor can later say he/she never gave such direction and then the CO is just out there hanging. Yes, I understand that in this case this was a COR, but the principles are still the same.  The FAR is nothing more than a suggestion and really doesn't need to be followed if a supervisor tells you to do something different.  Dangerous.

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Read the appellate brief between the lines. A contractor employee annoyed the COTR and the COTR told the contractor to get rid of him. Classic jerk COTR behavior. The contractor did what the COTR wanted, of course. Some contractor employees complained to the COTR's boss. The boss checked it out and told the COTR to tell the contractor to hire the employee back. The COTR refused, relying on the FAR. The boss relieved the COTR based not just on the refusal but on a pattern of conduct. The COTR claimed that he'd been retaliated against and called out the Whistleblower Protection Act. Nobody in the agency bought that. A merit system admin law judge ruled that he had no jurisdiction based on the Supreme Court's interpretation of the WPA. The MSPB affirmed the admin law judge's decision.  The CAFC affirmed the MSPB's decision. There's nothing more to this.

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Desperado,

Let's not ramp it up a notch -- it isn't necessary.  I think you are mis-reading this case.

Seeker,

If your reading between the lines is correct, then the supervisor, MSPB, and CAFC were all right and the COR was wrong.

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On 6/10/2016 at 6:28 PM, bob7947 said:

It is probably best to check the U. S. Code and note the difference in wording.  Use that prepared by Cornell and not the House of Reps.

bob7947, what is the reason for your preference for Cornell? Is Cornell more accurate?

 

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Yes, in reading State Department's Response at https://assets.documentcloud.org/documents/2748161/State-Dept-s-Response-Brief-and-Suppl-Appendix-1-1.pdf , it would appear that Seeker is on the right track. Wow, talk about what has the appearance of personal services, whether or not it was officially such an arrangement. There is a lot more to "The Rest of the Story" than was explained in the Government Executive story.  

And it would appear that the COR cherry picked which rules and regulations that he had the duty to follow!

 

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Okay, even if i concede that in this case the COR was wrong, that still doesn't change the basics of the ruling which is that the FAR is really just a regulation and therefore a supervisor can exert undue pressure on a CO to do something against the FAR and the CO has no recourse but to do it and then grieve. I still believe this is precedent-setting, and dangerous.

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Desparado,

Not exactly. If the FAR were implementing a statute, the employee would have whistleblower protection for refusing to comply with a supervisor's order that conflicted with the FAR. Since a lot of the FAR is implementing statute, I think that you're misinterpreting the decision by stating the ruling means that "the FAR is really just a regulation and therefore a supervisor can exert undue pressure on a CO to do something against the FAR and the CO has no recourse but to do it and then grieve." We're talking about a subset of rules in the FAR, not the entire FAR.

I was surprised by the decision, but I think it makes sense.

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1 hour ago, Desparado said:

I still believe this is precedent-setting, and dangerous.

I don't think the Court of Appeals decision is particularly precedent setting.  I think the idea of "obey first, grieve later" is fairly well-established.  See, e.g., Gragg v. U.S. Air Force, 13 MSPR 296, 299 (1982).  There are exceptions to the general rule, of course.  Additionally, it seems to me there are a fair number of opportunities in contracting to get help before being forced into this Hobson's choice, like going to Policy or Clearance or Legal for advice, and then "blaming" your clearance approval official (or your agency's equivalent) for preventing the Government contracting officer from following the supervisor's improper direction.  If a requiring activity is asking the contracting officer to violate the rule, hopefully most agencies are set up so that working PCOs are not under the immediate supervision of someone who has never held a warrant.

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Mr. Jacques, The CAFC decision didn't set precedent. It followed precedent set by the Supreme Court. As for "obey first, grieve later," the issue In Gragg v. USAF was related to a matter of personal hygiene--shaving. "Obey first, grieve later" applies when a grievance will be based on unfair labor practice such as violation of a union agreement. It is not applicable to orders of all kinds. If you worked for the IRS and your supervisor told you to give someone's tax return to the National Inquirer, are you going to do it and then defend yourself by saying something like "I was obeying orders"? "Hitler made me do it"? Are you going to use that defense if your boss tells you to violate the procurement integrity act? To ignore a security classification?

Mr. Desperate, The precedent is that the statutory prohibition in a particular section of Title 5 of the USC pertains only to orders to violate laws (statutes) not to orders to violate regulations. The precedent is not that supervisors are free to order COs to violate FAR.

 

 

 

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Mr. Jacques, Someone just sent this to me. It is from Garrison v. Department of Justice 72 F. 3rd 1566 (1995) by the CAFC.

"The courts have not enforced an “obey now, grieve later” rule when the employer's order is illegal. The Supreme Court has held that a police officer can not be discharged “for refusing to waive a right which the Constitution guarantees to him.” Gardner v. Broderick, 392 U.S. 273, 277, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082 (1968) (police officer improperly dismissed for failure to relinquish the protection of the privilege against self-incrimination); see Garcia v. National Labor Relations Bd., 785 F.2d 807, 812 (9th Cir.1986) (“Apparently the Board believes that an employee given an unlawful order is ... obliged to ‘obey and grieve.’ We prefer the alternative view that a citizen's first obligation is to obey the law, not the unlawful commands of an employer.”); Fleckenstein v. Department of the Army, 63 M.S.P.R. 470, 473–74 n. 3 (1994) (“To the extent Gragg [v. United States Air Force, 13 M.S.P.R. 296 (1982) ] can be interpreted as indicating that an employee can be disciplined for a refusal to obey an order that the agency is not entitled to have obeyed, we hereby overrule that decision.”)"

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Seeker, I didn't say that "obey first, grieve second," doesn't have exceptions.  It does.  The Court of Appeals decision discusses one of them (5 USC 2302(b)(9)(D)).  You have identified another.  It does not change the fact that employees can be and have been disciplined (and that discipline has withstood review) despite the fact that the employee ended up being right as to the "legality" of the order.  Ideally the Douglas factors help limit the severity of the discipline in these cases, but it is not a defense to a charge of either refusal to perform work or failure to follow instructions that the supervisor's order ended up being inconsistent with a regulation.  Fieckenstein has been largely overturned by Cooke v. USPS, 67 MSPR 401 (1995).

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Jacques:

According to Westlaw, Fleckenstein has not been overturned, not "largely" or to any other extent, not by Cooke v. USPS or any other case. It has only been distinguished, and only by one case, and that case was not Cooke. According to Westlaw, Gragg v. U.S.  Air Force, 13 MSPR 296 (1982), on which you have relied, has been overturned, and Garrison v. Department of Justice, quoted by Seeker, is still good law.

It's clear that there are some cases in which it is best to obey first, then grieve--like when your boss reassigns you, which is what happened in Cooke.  it is also clear that there are some cases in which an employee will be vindicated if punished for refusing to obey an illegal order.

In my opinion, the COR in the Rainey case was silly for refusing to comply. If he was genuinely concerned about the order, all he needed to do was tell the contractor that "the agency" wanted him to rehire the sub and that if he had any questions or objections he should take them to the CO. But not all violations of law are equal. It's one thing to tell a COR to tell a contractor to rehire a sub. It would be another thing entirely to tell a COR to give one competitor a copy of another competitor's proposal. What's a CO going to do if her boss tells her to take a classified contract document to a particular bar and hand it to a man wearing a white cowboy hat? Obey first, then grieve? I would hope that a government employee would have enough intelligence and guts to tell the supervisor to get lost and then call the FBI and a lawyer.

Desparado:

No one should think that the Rainey decisions stand for the proposition that an agency can get away with punishing an employee for refusing to obey an illegal order. The holding in Rainey dealt only with a matter of statutory interpretation. The interpretation was not that an agency can punish an employee for refusing to follow an illegal order. The interpretation was that a particular paragraph of 5 USC § 2302 prohibits an agency from retaliating against an employee for refusing to violate a statute, but does not prohibit an agency from retaliating for refusing to violate a regulation. The decision is jurisdictional. That's it.

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[W]e are constrained to hold that the protection granted by section 2302(b)(9)(D) is limited to orders that are contrary to a statute, and does not encompass orders that are contrary to a regulation. We therefore uphold the Board's interpretation of the statute, which led it to conclude that it lacks jurisdiction over this case.

That having been said, in my opinion an employee who refuses to obey an order on the basis of a difference of opinion, even though no determination has been made by competent authority, and even though no one is at risk, does so at his or her peril.

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Here is the best summary of the "obey, then grieve" rule that I could find, from Pendeleose v. Department of Defense, 110 MSPR 508, 517 (2009):

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The rationale for the rule, as noted above, is that an employee's failure to obey supervisory instructions is inherently harmful to the orderly accomplishment of work. There is no requirement in the cases that the agency must demonstrate harm from non-cooperation in a particular case. Similarly, while there is an exception for clearly unlawful orders, see Harris v. Department of the Air Force, 62 M.S.P.R. 524, 529 (1994), the appellant has cited no law or regulation that the agency's investigation on its face violated. Other exceptions to the rule are not based on the correctness of the employee's objections to the order, but apply in situations where there could be a significant adverse impact on the employee from cooperation with an order that may be improper. See Cooke v. U.S. Postal Service, 67 M.S.P.R. at 408 (the appellant was not entitled to disobey a reassignment order, despite the Board's ultimate agreement that it was not effected properly, because his conduct was not protected by a privilege or by a concern that it would cause him irreparable harm). The appellant showed nothing comparable in his situation.

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During my career, I told my subordinates to do what their bosses direct unless the subordinates believe the action to be illegal or immoral. In those cases, I directed that they prepare the document or action for the boss to sign or take.

 

There were a couple of instances when my subordinates objected to a source selection decision. I signed the decision and the contract. Fortunately, for me, none of my bosses insisted that I take an action I believed to be illegal or immoral.

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I'm not sure the example used by Representative Duffy in his press release is indicative of the problems facing Federal employees on a day-to-day basis...

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An example of the kind of rules and regulations Federal employees should follow: Consider sanctions against North Korea, which Congress directed the President to promulgate in the form of Federal rules and regulations.  Under current law, Federal employees who are told by their supervisor(s) to violate North Korean sanctions have no whistleblower protections.  The Follow the Rules Act would fix this and should be considered by Congress.

https://duffy.house.gov/media-center/news/duffy-connolly-bill-offers-additional-protections-for-whistleblowers

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Matthew:

The House went on re-election and fundraising leave at the end of last week.  The Senate will make a couple of pro-forma pit-stops this week before they officially leave at the end of the week for the same reasons as the House.

There are partisan reasons for everything in Disneyland on the Potomac.  Some worse than others.

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