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PepeTheFrog

Constitutional issues in federal contracts

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What are some Constitutional issues in federal contracting and acquisitions? Any suggestions are welcome. Some ideas:

sovereign immunity, waivers thereof: Tucker Act, Contract Disputes Act, claims

limited, actual authority of a contracting officer: no apparent authority, agency heads have signature authority by virtue of their position

fiscal limitations due to Article I spending power of congress, authorized/appropriated funds, time, purpose, amount, bona fide needs

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Issues as in issues which are controversial, or are we talking about how the Constitution affects our daily work?

As contrast, sometimes I imagine what a procurement job in North Korea might be like . . .

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Funny, I've read Article III, Section 2 several times and I don't see the phrase "sovereign immunity" anywhere. I must have picked up a bad copy of the Constitution.

I see the phrase used in the 11th Amendment, but only with respect to States and not to the Federal government.

So where did the concept -- also known as "crown immunity" come from? What does the Latin phrase "rex non potest peccare" mean?

Just an issue I think about from time to time....

 

 

 

 

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39 minutes ago, apsofacto said:

Issues as in issues which are controversial, or are we talking about how the Constitution affects our daily work?

Controversial, or of interest to the general public (non-contracting frogs).

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I think the implementation of executive orders in federal contracts would meet the test of "controversial". For example, some of the comments received in response to the rule on Fair Pay and Safe Workplaces objected to the rule on constitutional grounds. Some would argue that the president usurped the power of the legislative branch in issuing the EO. 

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The 8(a) program may be tested under the 5th amendment  before the U. S. Supreme Court (SCOTUS) probably depending on who fills Scalia's seat.  Read the dissenting opinion in Rothe. Also, look how the majority danced around the SBA's implementing regulations.  If 8(a) goes to SCOTUS and it is concluded that the 8(a) program's law and/or implementing regulations are race-based, that subjects the program to a more thorough and severe review called "strict scrutiny."  You can go to strict scrutiny and you will see my brief explanation on that review.  SBA should be studying the Rothe opinion now.

Gender-based programs are subject to intermediate scrutiny and race-based programs are subject to strict scrutiny by the courts. Strict scrutiny is theoretically more severe a review than intermediate scrutiny which held up the Women's contracting program for quite some time until all the requirements of intermediate scrutiny were satisfied.   Any federal gender and race based programs fall under the 5th amendment and are designed to remedy past discrimination.  Since they are a remedy, theoretically they are temporary programs.  If discrimination is eliminated, as the courts determine it, so must the programs end.

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5 hours ago, here_2_help said:

Funny, I've read Article III, Section 2 several times and I don't see the phrase "sovereign immunity" anywhere. I must have picked up a bad copy of the Constitution.

I see the phrase used in the 11th Amendment, but only with respect to States and not to the Federal government.

So where did the concept -- also known as "crown immunity" come from? What does the Latin phrase "rex non potest peccare" mean?

Just an issue I think about from time to time....

 

 

 

 

H2H, see, for example:  https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States

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Joel. Yes. But I think you missed my point. Let me iterate my thoughts.

We fought a war against a sovereign ruler. Good men died so that we could create a government by the people instead of by a hereditary ruler. Our founders created a new and improved operating system, including elected representatives to replace a king. And yet, despite the innovation that went into our constitution, the judicial system rebooted as English Common Law 2.0, with many of the bugs from the previous system left intact. Among the bugs was that notion that when the people consented to their new Federal government, they somehow waived some of the rights they had just won from King George. To my way of thinking the place for Sovereign Immunity is when one actually has a Sovereign, especially when the "Sovereign" is a party to a contract.

Sigh. I know. Getting off the soapbox now.

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H2H, Sorry, that wasn't how I interpreted the way you prefaced and phrased the original question.  

At any rate, I took a business law night class at a local university once. I remember our instructor explaining that sovereign immunity  is necessary to avoid the possibility endless, expensive, possibly financially crippling lawsuits against the Country by any or all persons or organizations.

As a  Republic, we would hope that there are some checks and balances to reduce the possibility of or to prevent abuses by the government. 

And Congress has often passed legislation, waiving sovereign immunity for various subjects of lawsuits, such as environmental actions and the Federal Tort Claims Act.  

It makes perfect sense to me. 

Dont allow it to ruin your sleep. 😊

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15 hours ago, Don Mansfield said:

I think the implementation of executive orders in federal contracts would meet the test of "controversial". For example, some of the comments received in response to the rule on Fair Pay and Safe Workplaces objected to the rule on constitutional grounds. Some would argue that the president usurped the power of the legislative branch in issuing the EO. 

Surprise surprise...that wouldn't be the first time that the President has usurped the power of the legislative branch in issuing an EO. 

Another EO strong arms agencies to consider REQUIRING Project Labor Agreements on federal construction contracts. it's one thing to allow them but entirely another to REQUIRE them. 

It started with Clinton; Bush II reversed it; Obama reversed Bush. 

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Similar to what Bob Antonio was saying, there is controversy about the 14th Amendment's equal protection clause and small business preference programs (particularly gender and race-based classifications in government contracts).   The key Supreme Court case is United States v. Virginia, 518 U.S. 515 (1996), also known as the VMI case. 

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