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"Why do you want to put that clause in our contract?"

"Because the President says that I must."

"But I don't want to agree to that."

"Well, then, we will not place any more orders and will not renew your contract"

"But you're a big part of my business. If you stop ordering from me I will take a big hit. I might not survive."

"I feel for you, but there is no option. Take it or leave it."

And you're only doing this because the President told you to."

"Yep."

"Okay. I guess I have no choice."

"Correct. Sign here."

The word I'm thinking about is duress. But I have no idea how it would turn out in court. I have already accepted the clause in my contracts.

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The scenarios are unlimited at this point.....

"I did market research for my labor intensive service."

"It meets the definition of commercial item - service based on the market research."

"Market research confirms H2B workers are not required to have vaccine when entering US."

"The major labor intensive service industry that I canvassed for the particular NAICS code does not require COVID vaccine for employees."

"Pursuant FAR 12.302 the clause is not  implementing listed statutory requirements, is an E.O. and not a statutory requirement, and is inconsistent with customary commercial practice."

"I intend to not put the clause in the solicitation and contract."

 

 

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15 hours ago, Don Mansfield said:

It should matter to the Government, because a court or board may not enforce the clause.

Isn't the President the chief executive of the Government?  In a situation where there is some litigation risk, isn't it the responsibility of the executive (rather than the employee) to make the decision to proceed or to adjust?  I am not seeing that contracting officers, as employees, need to be deciding the legality of the E.O. as a prerequisite to following instructions to implement the E.O.  That's part of why I am wondering why it matters.  If the boards or courts won't enforce the clause, well, the government will need to cross that bridge when it gets there.

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25 minutes ago, ji20874 said:

I am not seeing that contracting officers, as employees, need to be deciding the legality of the E.O. as a prerequisite to following instructions to implement the E.O.  

Interesting. As a CO, I doubt that I would have questioned the legality of an executive order in my official capacity. But maybe I would have been wrong not  to so so.

See: Chalef, "No, You Probably Shouldn’t Follow Every Order From Your Boss: Obedience is in the DNA of hierarchical organizations, but sometimes intelligent disobedience is the greatest act of loyalty," Government Executive, August 25, 2016, https://www.govexec.com/management/2016/08/no-you-probably-shouldnt-follow-every-order-your-boss/131050/.

Quote

To protect the reputation of your agency and its leaders you need to know when and how to disobey. You read that correctly. There is a high level competency called intelligent disobedience. It is rarely taught in leadership development programs. It should be. Here’s why....

* * *

We think of dogs as paragons of loyalty. We can think of guide dogs as the best of man’s best friends: they serve, support and protect. Both their obedience and disobedience are acts of loyalty. When needed, intelligent disobedience in public service is also an act of loyalty to the leadership of our agencies and to the citizens we serve.

See also FAR 1.602-1(b).

Even soldiers are expected to obey only lawful orders. See the Uniform Code of Military Justice, Article 91, Insubordination, para. (2), 10 USC § 891. That seems to presume that soldiers must ask themselves whether an order is lawful. Think My Lai. Think the Nuremberg trials.

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The gaping holes the EO left open on how to implement is what would have for me as a CO , raised questions and today do, question.  The legality is a side-bar on what might be faced in the future should it be found not legal.   Not sure it is a a question of does it matter, but more of the reality that isn't the whole thing just another edict on the perennial pile of "it depends!" 

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1 hour ago, ji20874 said:

Yeah, but let's not go to the Nazi example of following orders -- that comparison seems inapt by several orders of magnitude and by every perspective.

I disagree. It's perfect apt. What the Nazis did required compliance with seemingly trivial orders by myriad low level bureaucrats. While they are an extreme case—the level and effect of possible illegality is not the same—they are a case.

The underlying question is the same: Should government officials obey unlawful orders? Does the answer depend on the nature, degree, or possible consequences of the illegality?

(Full disclosure—my maternal great grandparents were murdered by the Nazis in France in June 1940.)

Quite a few of our citizens think it deeply wrong of the government to force them to either submit to measures that they fear or despise or give up their jobs.

You raised the issue. I'll address it as I see fit. You don't have to agree with my approach to doing so, but my approach is my choice.

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51 minutes ago, Vern Edwards said:

I disagree. It's perfect apt.

We disagree, Vern.  I certainly do not see bilaterally modifying a contract to include a vaccine mandate to be comparable to shooting or gassing Jewish civilians by the thousands in a day and so forth.  I do not see a contracting officer as comparable to a SS camp commandant or other Nazi war criminals. 

I'm not advocating for the vaccine mandate.  But I am unpersuaded that it is illegal -- I have to rely on the courts for that judgment (unlike the Nazi war criminals, who knew that they were doing wrong).  Unlike the OSHA mandate, the contractor mandate has not been enjoined by the courts.  This article might be of interest:  news.bloomberglaw.com/daily-labor-report/why-contractor-vaccine-mandate-is-tough-to-challenge-in-court.  

But there are two big differences beside the comparison of a contract modification with cold-blooded and systematic murder -- the contracting officer who feels the order is illegal can ask to be excused from that task without any harm to him- or herself or his or her civil rights, and the contractor certainly still has redress to our still-functioning and still-independent courts if it thinks the clause is unfair.

Not only do I think the comparison is inapt, I think it approaches repugnant.  My feeling is my choice -- I own it.

 

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4 hours ago, ji20874 said:

I certainly do not see bilaterally modifying a contract to include a vaccine mandate to be comparable to shooting or gassing Jewish civilians by the thousands in a day and so forth.  I do not see a contracting officer as comparable to a SS camp commandant or other Nazi war criminals. 

Let's be clear. We don't know that the mandate is illegal or otherwise wrong. We're not saying that anyone who processes the mods is killing anyone. This is just an exercise of thinking through a principle. We are thinking about the moral and ethical responsibilities of COs when told to follow directions.

Do you think that the people who did the shooting, gassing and commanding of concentration camps were the only government personnel involved? The killers relied on low to mid-level bureaucrats to comply with orders that made no mention of such things, including procurement orders for certain, shall we say, materials. At some point during the war the people of Germany knew what was going on, more or less, and yet continued to process the seemingly harmless paperwork, like procurement orders for the pesticide named Zyklon B and orders for railroad cattle cars.

But what if you or I were a purchasing agent in Nazi Germany and told to process an order for Zyklon B, the pesticide, in 1941, and suspected what is was to be used for? Would processing the order be moral? Would the person merely processing the order be innocent?

What if we were told just to process a mod to change the delivery point to Oświęcim, in Poland?

What would you do? I know who you are and think you're a good man, so I think I know the answer.

Quote

Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing. He is not a good man who, without a protest, allows wrong to be committed in his name, and with the means which he helps to supply, because he will not trouble himself to use his mind on the subject.

John Stuart Mill, 1867

Some of our fellow citizens think it is very wrong, even immoral, to force them either to (a) let someone inject something into them that they think is dangerous and might make them ill or even kill them or (b) lose their jobs.

https://www.reuters.com/world/us/eleven-states-sue-us-government-over-vaccine-mandate-federal-contractors-2021-10-30/

https://www.usnews.com/news/best-states/kentucky/articles/2021-11-04/states-sue-to-block-vaccine-mandate-for-federal-contractors

https://www.npr.org/2021/11/05/1052633843/republican-states-sue-over-biden-vaccine-mandate

Remember, this is just a thought exercise. It is a rhetorical test of a general principle.

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If the policy will be implemented by bilateral modification to existing contracts, then it is voluntary. The contractor should have the option to reject it- without any coercion, backlash, retribution or other negative consequences.

By the way, I was taught that German citizens or soldiers often didn’t have the option to openly disagree…

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3 hours ago, joel hoffman said:

If the policy will be implemented by bilateral modification to existing contracts, then it is voluntary.

Have you done much reading in the law of duress? I just did some checking and found more than 10,000 articles on the law of "economic duress". You might want to give that some thought.

From Williston on Contracts, § 71.7, Types of duress—Economic or business duress

An excerpt:

Quote

The ever-increasing extent of economic interdependence has resulted in certain types of interference causing grave injury to individual parties and to their business and property interests. This change has been felt in the law of duress and has led to an overall liberalization of its rules and the expanded doctrine of economic duress or business compulsion, as it is often described. Many significant precedents have contributed to the development and evolution of the expanded concept of economic or business duress that is probably the most significant development affecting the doctrine of duress during the last century...

I don't know much about this. I've only read a few things, enough to keep me from making firm pronouncements.

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44 minutes ago, Vern Edwards said:

Have you done much reading in the law of duress? I just did some checking, and found more than 10,000 articles on the law of "economic duress". You might want to give that some thought.

From Williston on Contracts, § 71.7, Types of duress—Economic or business duress

An excerpt:

I don't know much about this. I've only read a few things, enough to keep me from making firm pronouncements.

I’m just saying how a bilateral action is supposed to be. If the government retaliates or takes other adverse action against a firm for not agreeing to a bilateral mod that could severely impact its business operations and employees, then it needs to seek legal counsel. 

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9 hours ago, Vern Edwards said:

Let's be clear. We don't know that the mandate is illegal or otherwise wrong.

Right.  Thus, any comparison of a contracting officer negotiating a bilateral modification of the sort we're talking about with Nazis who justified no-doubt war crimes because they were following orders is inapt.

I hope every contracting officer will faithfully perform his or her responsibility and negotiate the clause into contracts as instructed.  I also hope contractors will consider any additional risks they might face and include them in the negotiations as their individual and/or market sector leverage allows.  If there are indications that there may be future difficulties in obtaining competition or performance in certain market sectors, I hope those concerns are raised through agency channels so that any needed policy adjustments can be made.

I have been trying to discern if there will be impacts in certain market sectors, and I have not heard a single whisper about contractors being unable or unwilling to sign the bilateral modifications, or even asking for a contract price or other adjustment to cover risks (other practitioners may be hearing differently -- if s, I hope they will share).  If all of an agency's contractors voluntarily sign the mods, and do so without any reservation of rights, then there should be no problems later for that agency.  If a contractor does feel duress, it might consider seeking legal counsel and perhaps relief under the Disputes clause.  That's how the process works, and our boards and courts are still functioning fairly, from what I can tell.

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4 hours ago, ji20874 said:

Thus, any comparison of a contracting officer negotiating a bilateral modification of the sort we're talking about with Nazis who justified no-doubt war crimes because they were following orders is inapt.

Oh, b.s.

The question is at what point if ever should a government official, a contracting officer, refuse to comply with a directive from a superior. It's a good question. Is it okay to comply with a minor illegality but not a major illegality, or is any degree of illegality sufficient to prompt refusal? What is the duty of the government official, and to whom does the official owe it? There have been many points in 20th and 21st century history at which bureaucrats have faced choices in that regard. Think about the last five years. Referring to the Nazis simply casts the issue in stark relief.

I'm sorry that I rattled you by mentioning Nazis. But you can find such considerations and comparisons in any number of books and articles on bureaucracy, morals, and ethics, not to mention in the news and opinion media over the course of the last five years.

I thought you might find discussions of such things much more satisfying than giving short shrift answers ("I dunno--what do you think?") to beginners' questions. My mistake.

4 hours ago, ji20874 said:

I have been trying to discern if there will be impacts in certain market sectors, and I have not heard a single whisper about contractors being unable or unwilling to sign the bilateral modifications, or even asking for a contract price or other adjustment to cover risks (other practitioners may be hearing differently -- if s, I hope they will share).

Another thing you haven't heard of?

https://www.rollcall.com/2021/11/05/federal-contractors-see-risks-in-unclear-vaccine-mandate/

https://federalsoup.com/articles/2021/11/02/report-some-feds-contractors-resist-vaccine-orders.aspx

https://www.ehstoday.com/covid19/article/21179990/reasons-for-federal-contractor-vaccine-delays-laid-out

https://www.bassberrygovcontrade.com/covid19-vaccine-mandate-government-contractors/

https://thehill.com/opinion/national-security/582047-vaccine-mandate-already-causing-problems-for-defense-contractors

https://www.defensenews.com/congress/2021/10/28/defense-firms-face-worker-losses-as-companies-impose-federal-vaccine-mandate/

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4 hours ago, joel hoffman said:

I’m just saying how a bilateral action is supposed to be. If the government retaliates or takes other adverse action against a firm for not agreeing to a bilateral mod that could severely impact its business operations and employees, then it needs to seek legal counsel. 

See Harley, "Economic Duress and Unconscionability: How Fair Must the Government Be?" Public Contract Law Journal, October 1988, 86-87:

Quote

The heart of economic duress is that the terms of the other party must have been involuntarily accepted by the party asserting the defense. Thus, in Paccon duress was found because ‘the contractor was pressured and coerced against its will into signing the three modifications' in question. Or, put another way, in Beatty et al. v. United States the Court of Claims stated a wrongful threat would amount to duress ‘only if it is sufficient to overpower the will of the other party and prevent the free exercise of his will.’ But such statements merely beg the question, what is involuntary?

The ASBCA, is Ace Van & Storage, Inc. and Mission Van & Storage, Inc., has elaborated on this point. It gave the example of the man who must pay a ransom for the return of his wife or child. The decision to pay the ransom is without a doubt voluntary in the metaphysical sense of the word. But the ASBCA was not prepared to call such a choice voluntary. Thus, being forced to choose between undesirable alternatives, that is accepting the terms offered or facing irreparable damage, is not voluntary and will not bar recovery under a theory of duress.

Footnotes omitted.

My research has persuaded me to believe that a claim of duress in this matter would not succeed.

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I'm not a lawyer, but I also feel a contractor's claim of duress in this matter would not succeed.

And I think a contracting officer's claim of illegality would not succeed as a defense against discipline for refusing to negotiate the clause into contracts as instructed.

I hope I have never broken the law in my job.  I have closed one eye a few times, and I have pushed for an outcome or resolution a few times -- these were not clear-cut matters of legality but were more matters of discretion (at least in my mind).  I've been directed to do things I didn't want to do, and I've done some of them, but these also were not clear-cut matters of legality.

Some have said I am too hard on contractors when I enforce contract clauses as written, and some have said I'm too easy on contractors when I enforce contract clauses as written.

Whenever a contracting officer faces a legal or ethical question regarding his or her job duties, I think a consultation with an agency attorney or ethics counselor is a good idea.

In matters of contract formation and administration, what one person sees as illegal may not, in fact, be illegal.  An agency attorney once told me that leaving a particular offeror out of a competitive range would be illegal. I disagreed, saying it might be unsupportable, or foolish, or undefendable in case of a protest, but in my mind that is different than illegal -- I felt it was entirely legal. I cannot meaningfully engage in a theoretical debate about whether an order is illegal and should be disobeyed unless I know what the order is.

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10 hours ago, ji20874 said:

If all of an agency's contractors voluntarily sign the mods, and do so without any reservation of rights, then there should be no problems later for that agency.

It does not end with the signing.  It is the actual administration and enforcement of the clause and the confusion that will follow.  Remember one post somewhere in Forum has already lamented about the inconsistency of application of the clause.  Passing the requirement on to a COR, possibly an inspector, or whom ever the CO depends on for assistance in administration and enforcement of the clause will undoubtedly raise as many questions as the requirement for the clause has.  This reality relates to a segment of your comment that 

18 minutes ago, ji20874 said:

....what one person sees....

 My experience with reality is that administration and enforcement of a contract clause goes way beyond the CO and in some cases the designated contractor representative.  

My experience was just a small piece of the giant procurement machine of the Federal government but yet impact was seen as giant in some geographical areas of the US!

https://newhouse.house.gov/sites/newhouse.house.gov/files/firefighter_vaccine_letter_final.pdf

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Ethics in contracting is an important matter, but it is one in which most acquisition personnel receive only superficial education and training, and that training is mainly practical, not philosophical. Few of us have studied ethics, and most of us have not read any formal treatises on ethics.

(The 64-page, recently revised, entry on "Business Ethics" at the Stanford Encyclopedia of Philosophy  https://plato.stanford.edu/entries/ethics-business/ is an interesting read.)

I know that I made some ethical compromises when I was a contracting officer "in order to get the job done," which is why I wonder if there is a scale of ethical compliance and compromise on which some such compromises would be considered permissible. I know that according to the "textbook" there are no such permissible compromises. But, as a practical matter... ? Are tradeoffs permitted?

As for "legal" and "illegal" I have been warned against saying that something or other is "illegal," warnings that I have not always heeded. I think lawyers like to hedge their bets in that regard. I don't think legal is the best term in the context of this thread. A better term would be lawful. Here are the Black's Law Dictionary 11th ed. definitions:

legal adj. (15c) 1. Of, relating to, or involving law generally; falling within the province of law <pro bono legal services>. 2. Established, required, or permitted by law; LAWFUL <it is legal to carry a concealed handgun in some states>. 3. Of, relating to, or involving law as opposed to equity.

illegal adj. (17c) Forbidden by law; unlawful <illegal dumping> <an illegal drug>.

lawful adj. (13c) Not contrary to law; permitted or recognized by law; rightful <the police officer conducted a lawful search of the premises>. See LEGAL. — lawfulness, n.

unlawful adj. (14c) 1. Not authorized by law; illegal <in some cities, jaywalking is unlawful>. 2. Criminally punishable <unlawful entry>. 3. Involving moral turpitude <the preacher spoke to the congregation about the unlawful activities of gambling and drinking>. — unlawfully, adv.

See Bryan Garner's entries on legal and illegal in Garner's Dictionary of Legal Usage 3d ed.

Would the bilateral mods discussed in this thread be unlawful and void if a court of competent jurisdiction were to declare the President's executive order unlawful? Would the fact that contractors agreed to them make them lawful and enforceable despite the unlawfulness of the E.O.?

If the E.O. were to be found lawful, could the way in which a particular contractor was "persuaded" to sign the mod make it unlawful and void; for instance, if the CO threatened to give the contractor a poor past performance rating if it didn't sign?

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1 hour ago, Vern Edwards said:

Would the bilateral mods discussed in this thread be unlawful and void if a court of competent jurisdiction were to declare the President's executive order unlawful?

One of the basics - A contract must have legal purpose and object to be enforceable.  Conclusion not enforceable if the EO is unlawful?

 

1 hour ago, Vern Edwards said:

If the E.O. were to be found lawful, could the way in which a particular contractor was "persuaded" to sign the mod make it unlawful and void; for instance, if the CO threatened to give the contractor a poor past performance rating if it didn't sign?

A very pertinent question with regard to a modification exercising an option that includes the clause.

 

1 hour ago, ji20874 said:

But we're talking about the legality of the modification.

Yes I know but as it goes the adjudication does not stop with with a competent court declaration regarding the EO the questions posed in the most recent post create their own need for declarations by competent courts or other forums.  Actions throughout the whole contracting process have their own questions of unlawfulness.

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If boards or courts make the clause improper or unenforceable, they will likely say the President or the Executive Branch or the agency overstepped.  They likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

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25 minutes ago, ji20874 said:

If boards or courts make the clause improper or unenforceable, they will likely say the President or the Executive Branch or the agency overstepped.  They likely will not categorize the action as unlawful, where unlawful means the contracting officer was morally or legally wrong in implementing the instructions and should have disobeyed the E.O.

Emphasis added.

"Likely" was an interesting word choice. On what is that prediction based? In how many cases has a board or court found a challenged contract action to be lawful and binding that was grounded on an unlawful rule? Have you seen such a decision?

If the authority for a mod was unlawful ex ante, what authority did the contracting officer have to sign the mod requiring the contractor to require its employees to be vaccinated or wear masks and be tested? Do COs have the inherent authority to impose such a requirement on their own initiative?

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