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jwomack

Court Order and the FAR

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A federal judge issues a Court Order.  The Court Order requires an Executive Branch government agency to perform an action in which a 3rd party commercial vendor must be involved.  The agency is expected to identify and establish whatever relationships are necessary with vendor(s) to satisfy the Court Order.  This includes paying the vendor with the agency's funds for any services rendered.  The Executive Branch agency is subject to FAR.

An example of this would be if the Court ordered DOD/DOJ to perform a psych exam on a defendant.  This would, in turn, require DOD/DOJ to enter into a relationship with a commercial entity such as a hospital or doctor.

Who incurred the obligation on the Government?  The Court?  The Executive agency?

Would the agreement between the agency and the vendor be considered an acquisition subject to FAR?

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If a court orders a psych exam, wouldn't the agency have some discretion about how to carry it out?  For example, if DOJ was the target of the order, could it use one of it employees to do the exam?  or use a VA employee?

But if the agency elects to use a contractor, it would be very easy -- a simple purchase order, sole-source or competitive as needed, using the agency's normal procurement authority/processes and appropriated funds.  

It might get more problematic if a court orders an agency to do something that goes beyond the agency's authorization and appropriations acts, but that isn't the case here.

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(Posted after ji but have a little different spin on something I put together so posted anyways.....)

The agency incurs the obligation, unless it wants to ignore the court order.

Not sure what you mean by agreement but I envision this….

  1. Court Order issued

  2. Agency then finds needed commercial entity or goes to the specific entity the Court Order stipulates

  3. Agency then uses the commercial credit card or PO to pay for the services.   Single source determination or sole source justification to support as appropriate.

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Yes, unless the Court Order explicitly states otherwise, the agency has discretion on how to satisfy the Order.  Issuing a PO or using a GPC or other procurement authority is current practice when external help is needed.

I’m trying to determine if, when doing so, the agency must follow FAR.  For example, if a government employee commits what would ordinarily be considered a UC in trying to satisfy a Court Order, would that action be subject to FAR 1.602-3 ratification procedures?

The answer is probably yes but I’m looking for a loophole.  Like, “Though not directly with the vendor, the Court established the obligation on the Government by way of issuing the Court Order.  Therefore, satisfying the Court Order is considered a mandated legal process and a FAR procurement vehicle is not required.”
 

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Quote

 

1.104 -- Applicability. The FAR applies to all acquisitions as defined in Part 2 of the FAR, except where expressly excluded.

2.101 -- Definitions

“...Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract

 

It would seem to me that, if an acquisition is necessary to fulfill the requirements of the Court Order, then the FAR is applicable.  This assumes that the agency's acquisitions are otherwise subject to FAR.

 

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2 hours ago, jwomack said:

Who incurred the obligation on the Government?  The Court?  The Executive agency?

I think you meant imposed.

You got a court order. Don't you have a lawyer?

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Vern,

Imposed.  Agree.  I'm a government KO trying to determine the boundaries I have to work within.

Joel,

Agree but am hoping someone can help me find a loophole if there is one that's reasonable.

Sometimes in the legal community things happen relatively quickly and it can be highly inconvenient to the Attorneys if forced to follow normal acquisition protocols.

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3 hours ago, jwomack said:

ike, “Though not directly with the vendor, the Court established the obligation on the Government by way of issuing the Court Order.  Therefore, satisfying the Court Order is considered a mandated legal process and a FAR procurement vehicle is not required.”

There is no basis in law for that theory. Even if the court had ordered the Government to award a contract for the service, it would not order the agency to do so in violation of statute and regulation. There is no loophole. Besides, a psychiatric evaluation shouldn't cost more than the micro purchase threshold unless the person being evaluated must be hospitalized. How long can it take to make an award for that?

Please.

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10 minutes ago, Vern Edwards said:

How long can it take

Longer than many folks want to invest.

Agree with all the input and thank you.

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You are over-thinking this.

I was a Judicial Branch (AOUSC) CO, with responsibility for the ankle monitor contract.  The fact that the end user  was a convicted felon and the requiring activity was a Federal judge was irrelevant.  It was a contract for supplies and associated services that was paid for out of AOUSC's appropriated funds, just like any other vehicle.

(But the Judicial branch isn't subject to the FAR, just to muddy things a bit)

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19 hours ago, jwomack said:

A federal judge issues a Court Order.  The Court Order requires an Executive Branch government agency to perform an action in which a 3rd party commercial vendor must be involved.  The agency is expected to identify and establish whatever relationships are necessary with vendor(s) to satisfy the Court Order.  This includes paying the vendor with the agency's funds for any services rendered.  The Executive Branch agency is subject to FAR.

An example of this would be if the Court ordered DOD/DOJ to perform a psych exam on a defendant.  This would, in turn, require DOD/DOJ to enter into a relationship with a commercial entity such as a hospital or doctor.

Who incurred the obligation on the Government?  The Court?  The Executive agency?

Would the agreement between the agency and the vendor be considered an acquisition subject to FAR?

I'm not sure if the psych exam example you provided is the issue that you are facing. But if it is, I just wanted to point out that DOJ receives a special appropriation for the Fees and Expenses of Expert Witnesses.  Further, "Funding allocated to this activity is also used to pay the fees of physicians and psychiatrists who examine defendants upon order of the court to determine their fitness to stand trial."  (https://www.justice.gov/file/969041/download)  I know that doesn't directly address the question you raised.  But, if you are working with DOJ there should be an established process in that office.

There is no exception that would remove this acquisition from the FAR.  As others have noted, a micro-purchase using a GPC would be pretty darn quick.  However, if the cost exceeds the micro-purchase threshold (or even SAT) the procurement can still be conducted quickly. A sole source contract for expert services can be awarded pursuant to the authority of FAR 6.302-3(a)(2)(iii) (“to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute.”)  If it is a recurring requirement, and you want to speed up the process, consider issuing a class J&A while maintaining a running list of qualified experts.  For an example, see the SEC Division of Enforcement here: https://www.fbo.gov/index?s=opportunity&mode=form&id=f293c58f774e1e7b57e85d171881a1bb&tab=core&_cview=1

 

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Bottom line: a court will not knowingly order or expect an agency to violate statute or regulation, unless it rules that the law or regulation itself is a violation of the law. That is not going to happen with regard to an ordinary acquisition rule.

Interesting articles about Government compliance with court orders;

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2907797

https://www.bafirm.com/publication/federal-contempt-of-court/

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Good articles.  A reminder that the three Branches of Government are separate but must strive to speak in unison.

 

On ‎7‎/‎21‎/‎2017 at 4:38 AM, Lionel Hutz said:

there should be an established process in that office

Sometimes established processes need to be questioned.

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