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16 hours ago, Don Mansfield said:

I suppose that's true, but I can't find any stated limits on an agency's authority to deviate from the FAR. FAR 1.402 begins with "Unless precluded by law, executive order, or regulation..." So would a statute have to expressly say that deviations are precluded?

Disclosure: I am not a lawyer. A lawyer(s) is encouraged to respond to the question. 

 
×
stat·ute
/ˈstaCHo͞ot/
noun
plural noun: statutes
  1. a written law passed by a legislative body.
    "violation of the hate crimes statute"
    synonyms: lawregulationenactmentactbilldecreeedictrulerulingresolution, promulgation, measuremotiondictumcommandorderstipulationcommandmentdirectivepronouncementratificationproclamationdictatediktatfiatcovenantdemandbylaw
    ordinance;
    ukase
    pronunciamento
    "the statute in question gave rise to an action for damages"
    • a rule of an organization or institution.

Don, Do you think that an individual statute would have to expressly say that deviations are precluded?  Is this another generalized test question without any explanation or context?

I am only guessing here. It would seem that an individual statute,  would state the requirement, rule, etc.

Thus, without specific language allowing for deviations, the law - when looked at by itself - would seem to preclude deviations from the stated requirement(s).

However, individual contracting statutes are generally incorporated into the US Code, which may have to be read in full context and which may  or may not provide for the possibility of deviations.

Then there are often implementing regulations, which might or might not provide for approved deviations.

Then there may be case law, which may interpret the law and/or regulations.

Like many questions, there usually has to be some context provided to properly or fully answer- especially if the topic is to be instructional for readers looking for guidance, advice, application to their situation, etc. 

 

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54 minutes ago, ji20874 said:

The FAR gives us authority to deviate from the FAR, right?  I don't think the FAR gives us authority to deviate from statute.

I'm also not a lawyer.

I agree with your second point, unless the US Code which contains specific statutes in context with others, provided for an implementing regulation that would allow a deviation from the individual statute.

I understand your first point,  and agree to the extent that FAR provides some authority to deviate from some but not all FAR requirements. 

By the way, if a KO doesn’t know whether a statute must expressly preclude deviations or “isn’t aware of” or “doesn’t know” if any law or regulation precludes a deviation or allows another course of action, then the KO “shall”  “[r]equest and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate...” (**FAR 1.602-2(c)).

I’d say specialists in law would be appropriate for an answer to that specific question. Perhaps specialists in the relevant field might be aware of regulations or other reasons why not to deviate, thus it may be appropriate to contact  and consider them, too. 

:)  

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21 hours ago, Don Mansfield said:

So would a statute have to expressly say that deviations are precluded?

Don, I think the question is posed in reverse.  If an agency can waive (deviate from) a statute, I think the statute has to give the agency explicit authority to do so.  In the contracting arena, we have such delegations of waiver authority in regard to certified cost or pricing data in 10 U.S.C. 2306a and in regard to the CAS in 41 U.S.C. 1502.  In the absence of authority to waive or deviate from a statutory requirement, we wind up with regulatory nullification of a statute. 

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11 hours ago, joel hoffman said:

By the way, if a KO doesn’t know whether a statute must expressly preclude deviations or “isn’t aware of” or “doesn’t know” if any law or regulation precludes a deviation or allows another course of action, then the KO “shall”  “[r]equest and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate...” (**FAR 1.602-2(c)). (emphasis added)

This may be misleading. Compare it with what the FAR Paragraph actually says without edits or omissions. 

"Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall --

(c) Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate;"

Well, what is ‘as appropriate‘? Agencies have established business and contract clearance requirements that include legal and other reviews. Contracting officers are required to follow the clearance process, but even that only offers a semblance of reasonable assurance. It would take a small army to ensure that "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met."

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1 hour ago, Jamaal Valentine said:

This may be misleading. Compare it with what the FAR Paragraph actually says without edits or omissions. 

"Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall --

(c) Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate;"

Well, what is ‘as appropriate‘? Agencies have established business and contract clearance requirements that include legal and other reviews. Contracting officers are required to follow the clearance process, but even that only offers a semblance of reasonable assurance. It would take a small army to ensure that "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met."

 

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1.602-2 Responsibilities.

Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall-

(a) Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation;

(b) Ensure that contractors receive impartial, fair, and equitable treatment;

(c) Request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate;

 

I don't think that what I wrote is misleading. I was referring to when a KO doesn’t know whether a statute must expressly preclude deviations or “isn’t aware of” or “doesn’t know” if any law or regulation precludes a deviation or allows another course of action. It would be necessary to request and consider the advice of specialists, if they are considering deviating from established laws and regulations or taking some action other than a routine change to the requirements. 

You omitted paragraph 1.602-2 (a), which refers to 1.602-1 (b). 

Said paragraph 1.602-1 (b) requires the KO to ensure that "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met."  

Whether or not it takes a small army is debatable.  I think that you and I would agree that it probably takes more than the KO acting on their own, then simply stating:  "Authority for the action is by mutual agreement of the parties - here's my Warrant No.".

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3 hours ago, joel hoffman said:

I don't think that what I wrote is misleading at all. As for "What is appropriate" with respect to requesting and considering the advice of specialists,    you omitted paragraph 1.602-2 (a), which refers to 1.602-1 (b). 

That paragraph  does require the KO to ensure that "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met." 

Whether or not it takes a small army is debatable.  Apparently you agree that it takes more than the KO acting on their own, then stating:  "Authority for the action is by mutual agreement of the parties - here's my Warrant No.".

Saying that there is an imperative (authoritative command) to request and consider the advice of specialists when (1) a KO doesn't know or (2) isn't aware if any law or regulation precludes a deviations seems misleading. The plain language says as appropriate.

What is appropriate will vary from KO to KO, Team to Team, and is driven by the deviation at-hand. I don't think it is accurate to make a blanket assertion that if a KO doesn't know or isn't aware of a preclusion that they shall request and consider advice of specialists. (at least affirmatively outside of the normal deviation and clearance approval process, for example)

Maybe I should have said your assertion was unclear or ambiguous, to me, rather than misleading. If all you meant is that whenever a KO deviates they need express authority (e.g., approvals and clearances from others), then I agree. After all, we don't always know what we don't know with regards to awareness.

As appropriate requires harmony with FAR 1.602-2(a):

"Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation;"

FAR 1.102-4(e):

"If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume that is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations ensuring that business decisions are sound."

And FAR 1.402 (when deviating from FAR).

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Jamaal, I want to emphasize that the KO should** work with “the government members of the team” and not to skip from “I don’t know of any...” or “I am not aware of any...” to “I may assume...”. That’s all. 

This thread went from a simple “can I cite two authorities on a mod?” to debates over ideas such as:  “why cite anything?”,  just “say mutual agreement of the parties” ,  “here’s my warrant number” , “the KO can pretty much do anything if they obtain consideration” , “test questions” , “its not necessary to justify my actions”,   “if you don’t agree with me it’s your responsibility to prove it” and beyond. 

I suggest a reading of one of the editions of “Formation of Government Contracts” for a good discussion of the authorities for contracting and authorities and responsibilities of government personnel, etc. 

** EDIT: To clarify that I paraphrased earlier above that FAR directs the KO to (the KO shall ) consult with specialists "as appropriate"    Thus - I think that it is appropriate under those circumstances. Hope that makes my earlier post clearer or unambiguous. 

https://nortonsafe.search.ask.com/web?q=paraphrase definition&guid=symc-empty-guid-01d9-d5ff-6c29-513f-52cf-6042-9d1d-8846&installSource=compliancePopup&chn=1000&prt=LegacyExtension&ver=1.1.6&doi=2018-12-18&o=APN11910&geo=en_US&ctype=&tpr=121

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par·a·phrase

[ par- uh-freyz]

NOUN

1. a restatement of a text or passage giving the meaning in another form, as for clearness; rewording.

2. the act or process of restating or rewording.

 

 

Edited by joel hoffman
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@joel hoffman

Most threads take several turns.

Since this thread is about modifications, the Administration of Government Contracts series is another great resource. It contains information regarding deviating from regulations and waiving statutory requirements; and offers a section on authority.

Steven Feldman's Government Contract Guidebook, 4th ed., states that unless an agreement is palpably illegal, the government is bound by the commitments of its agrnts acting within their authority,  even when they make a unilateral error of law or fact; and cites this case:

https://casetext.com/case/broad-ave-laundry-and-tailoring-v-us

Thanks for the discussion. The exercise prompted some learning. 

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1 hour ago, Jamaal Valentine said:

@joel hoffman

Most threads take several turns.

Since this thread is about modifications, the Administration of Government Contracts series is another great resource. It contains information regarding deviating from regulations and waiving statutory requirements; and offers a section on authority.

Steven Feldman's Government Contract Guidebook, 4th ed., states that unless an agreement is palpably illegal, the government is bound by the commitments of its agrnts acting within their authority,  even when they make a unilateral error of law or fact; and cites this case:

https://casetext.com/case/broad-ave-laundry-and-tailoring-v-us

Thanks for the discussion. The exercise prompted some learning. 

Yep. That's what we want to avoid.  Thank you, too.  Are you still "over there"?  

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On ‎3‎/‎15‎/‎2019 at 1:07 PM, Retreadfed said:

Lionel said, "relinquishing legal rights serves as adequate consideration."  Legal rights are a property interest vested in the government.  Do contracting officers have the authority to divest the government of its property rights without such authority being granted in a contract clause?

In Whittaker Corp., ASBCA 18422, 81-1 BCA ¶ 15,055, the contracting officer did just that. The contracting officer granted an appeal right that a mandatory contract clause precluded. The Board found that the CO's action was "well within the ambit of the contracting officer's authority to administer the contract."

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IN ANY EVENT, WE THINK THE CONTRACTING OFFICER’S AGREEMENT, AS EVIDENCED BY CONTRACT MODIFICATION NO. 16, TO GRANT AN APPEAL RIGHT UNDER THE DISPUTES CLAUSE FOR CONSIDERATION CONSTITUTED A WAIVER OF THE RIGHT CONFERRED ON THE GOVERNMENT BY THE CLAUSE IN QUESTION. ADEQUATE CONSIDERATION FOR THIS WAIVER WAS GIVEN AND THE GRANTING OF SUCH A WAIVER WAS WELL WITHIN THE AMBIT OF THE CONTRACTING OFFICER’S AUTHORITY TO ADMINISTER THE CONTRACT. WE PERCEIVE NO DISTINCTION BETWEEN THIS WAIVER AND OTHERS A CONTRACTING OFFICER MAY CONFER FOR CONSIDERATION SUCH AS DELIVERY FAILURES, TERMINATIONS FOR DEFAULT AND THE ACCEPTANCE OF LESS THAN A SPECIFIED PERFORMANCE. ACCORDINGLY, WE DO NOT CONSIDER THE GOVERNMENT’S ARGUMENT THAT THE CONTRACTING OFFICER ACTED ULTRA VIRES IN VIEW OF ASPR 1-109 AND THE CHRISTIAN DOCTRINE APPLICABLE THERETO TO BE MATERIAL TO THE QUESTION OF THE BOARD’S JURISDICTION IN THIS CASE. IT IS THE GOVERNMENT’S CONTENTION THAT SINCE THE REFERENCED ASPR SECTION WAS A PART OF THE CONTRACT PURSUANT TO THE CHRISTIAN DOCTRINE THE CONTRACTING OFFICER HAD NO AUTHORITY TO DEVIATE THEREFROM WITHOUT FOLLOWING THE PRESCRIBED PROCEDURE. THIS CONTENTION IS IMMATERIAL SINCE WE DO NOT CONSIDER THE ACT OF THE CONTRACTING OFFICER TO BE A DEVIATION FROM ASPR.

A contracting officer does not need authority from a contract clause to relinquish a legal right.

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If an agency can waive (deviate from) a statute, I think the statute has to give the agency explicit authority to do so.

I agree in general. However, from Formation of Government Contracts:

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A judicially forged exception to the requirement for specific statutory authority for a government official to waive a statute has been applied to the Assignment of Claims Act, 41 U.S.C. § 6305(b). This statute states that any prohibited assignment "shall cause the annulment of the contract." In Tuftco Corp. v. United States, 222 Ct. Cl. 277, 614 F.2d 740 (1980), the court held that a contracting officer possessed the necessary authority to waive the statute. This seemingly controverts not only conventional concepts of sources of authority, but also the specific policies inherent in the Act.

 

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If an agency can waive (deviate from) a statute, I think the statute has to give the agency explicit authority to do so.

   I [Don] agree in general. However, from Formation of Government Contracts:

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A judicially forged exception to the requirement for specific statutory authority for a government official to waive a statute has been applied to the Assignment of Claims Act, 41 U.S.C. § 6305(b). This statute states that any prohibited assignment "shall cause the annulment of the contract." In Tuftco Corp. v. United States, 222 Ct. Cl. 277, 614 F.2d 740 (1980), the court held that a contracting officer possessed the necessary authority to waive the statute. This seemingly controverts not only conventional concepts of sources of authority, but also the specific policies inherent in the Act.

 

Yes, I read that, too. Here is a link to the Case: 

 https://casetext.com/case/tuftco-corp-v-united-states

Some Highlights:

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This case, involving the assignment to plaintiff of contracts for the purchase of mobile homes by the Department of Housing and Urban Development (HUD), is before the court on cross motions for summary judgment. Plaintiff complains that the Government, though it was aware of and recognized assignment of the contracts from the original contractor to plaintiff, nevertheless wrongfully forwarded some of the payments due under the contracts to the original contractor, resulting in plaintiff's loss. The Government, relying on the Anti-Assignment Act, 41 U.S.C. § 15 (1976) (hereinafter, "Act" or "Anti-Assignment Act"), contends the contracting officer lacked authority to recognize the assignments; therefore the payments to the original contractor were proper. We find the contracting officer possessed the requisite authority to waive the Act's requirements and that the actions of defendant constituted a valid recognition of the assignments. Accordingly, we award judgment in favor of plaintiff.

 The original contractor arranged to have the plaintiff manufacture and deliver mobile homes directly to HUD and assigned the payments (contract?)to the Plaintiff.  The Government  recognized the assignment and initially made payments to the plaintiff but later wrongly made payments to the original contractor -  

On a second contract, the same contractor arranged to split the order for mobile homes with the plaintiff and assigned that part of the payments to the plaintiff.  I think that the government mishandled the payments the same way on that contract.

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It is appropriate to emphasize that before each assignment was effected both [Plaintiff] and [original contractor] contacted Scroggs, the contracting officer, to inform him of their proposed arrangements. [The KO] advised them that, despite the Anti-Assignment Act, if [Plaintiff] would assume [original contractor's] obligations HUD would make all payments directly to [Plaintiff] on the first contract and to the law firm for the second contract, instead of directly to [original contractor].   [Plaintiff's agreement to the assignment with [original contractor]  was conditioned upon its belief HUD payments would be made to it rather than [original contractor]

The original contractor sent some of the wrongful payments to the plaintiff but kept $94,827 of the wrongful payments.

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Whether through mistake, inadvertence or by intentional decision, HUD made total payments of approximately $260,000 to [original contractor] under contract H-3154 and approximately $504,800 to [original contractor] under H-3341. [Original contractor's] Vice-President, turned over a portion of the payments to [Plaintiff] but fraudulently disposed of the balance and failed to account to [Plaintiff] or to the law firm on behalf of [Plaintiff].

 

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In March 1973 [Plaintiff] filed suit against Grant and Gradsky in the United States District Court for the Eastern District of Tennessee, Southern Division, Civil Action No. 6710, seeking recovery of [Plaintiff's] share of the payments made by HUD directly to [original contractor] On December 4, 1974, the court entered judgment for Winchester in the amount of $111,895.86, including interest, against [original contractor]. Despite [Plaintiff's] diligent efforts to collect the judgment it has been unable to recover any of it. On September 18, 1978, plaintiff filed its petition in this court to recover from the Government the $111,895.86 judgment it cannot collect from [original contractor] under contract H-3154 and approximately $504,800 to [original contractor] under H-3341. 

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Though the Anti-Assignment Act would normally prohibit assignments of this nature, plaintiff contends the contracting officer acted within his authority by waiving the Act's requirements and recognizing the assignments. Defendant was therefore bound by the terms of the assignments and must be held liable for its failure to fulfill its obligations under them.

The Court went on to explain that waivers of the Anti-Assignment Acts had been held valid under certain circumstances, including circumstances similar to this case.

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Consistent with the situations in which the Anti-Assignment Act has been deemed inapplicable stands the long-recognized principle that "Despite the bar of the Anti-Assignment statute ( 41 U.S.C. § 15), the Government, if it chooses to do so, may recognize an assignment."

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In summary, the court holds that because [The Government] had knowledge of, assented to, and recognized the assignment of contracts H-3154 and H-3341 from [original contractor] to [Plaintiff] it is liable for the losses sustained by plaintiff resulting from the payments made to [original contractor] in contravention of the terms of the assignments. 
...Judgment is entered for plaintiff in the sum of $94,827.00.

***SO -  there was longstanding case law supporting the waiver of the Anti-Assignments Act by the government, under appropriate circumstances.

The KO screwed up by making some payments to the wrong party... The scew-up (not the waiver of the Statute) cost the taxpayers almost $95,000.

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Don, was Whittaker a CDA case or was it brought under the previous regulatory authority that governed disputes prior to the CDA?

As for the Tuftco decision, I learned a long time ago that statutes, regulations and contracts mean and say what the courts say they mean.  We should note that the principle sated in Tuftco and the decisions upon which it was based is now stated in FAR Subpart 12.4.

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