Tuesday, May 15, 2012


On March 11, 2012, I posted a piece on “Our Adversarial Acquisition System” which followed a similar piece I wrote on October 28, 2011.  We as taxpayers demand a system of elaborate and complicated rules along with contracts of adhesion where we dictate the terms and conditions of contracts with those who sell to our government.  At the same time, we provide contractors certain legal rights which we actually expect them to exercise.  So, I’ve stated, let’s not be naïve.  We’ve set up a system purposely designed to create an adversarial relationship between the buyers and the sellers of goods and services in federal government contracting.
But that’s okay.  Our judicial system is adversarial.  And in government contracting, as in our judicial system, adversarial does not have to end in a partial, biased result.
In his message to Congress in 1862, Abraham Lincoln said:
                It is as much the duty of the Government to render prompt justice against itself, in favor of
                Citizens, as it is to administer the same between private individuals.
In 1912, the United States Supreme Court  said about the contracting officer in government procurement:  “But the very extent of the power and the conclusive character of his decision raised a corresponding duty that the agent’s judgment should be exercised not capriciously or fraudulently, but reasonably, and with due regard to the rights of both the contracting parties.”
The predecessor court to the Court of Appeals for the Federal Circuit said in 1950:
Some contracting officers regard themselves as representatives of the defendant, charged with the duty of protecting its interests and of exacting of the contractor everything that may be in the interest of the Government, even though no reasonable basis therefor can be found in the contract documents; but the Supreme Court has said that in settling disputes this is not his function; his function, on the other hand, is to act impartially, weighing with an even hand the rights of the parties on the one hand and on the other.
Penner Installation Corp. v. United States, 89 F. Supp. 545, 564 (Ct. Cl. 1950).  After referring to the 1912 Supreme Court opinion, the court in Penner said the contracting officer must not represent either side but must act "as an impartial, unbiased judge."
In settling disputes (and to facilitate avoiding them), it is not the proper function of the contracting officer to see what he can extract from the contractor.   This is not the contracting officer’s function say the highest federal courts.  The contracting officer is to act impartially.
The system of rules and regulations may create an adversarial system but in the end, the contracting officer is charged with the responsibility to take an impartial view of the competing interests and “weigh with an even hand the rights of the parties on the one hand and on the other.”

Postscript:  As our readers have pointed out, FAR 1.602-2(b) requires contracting officers to "Ensure that contractors receive impartial, fair, and equitable treatment . . . ."  


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