Saturday, April 8, 2017

THE JUDICIAL ROLE OF THE CONTRACTING OFFICER

It's time we reminded ourselves of the judicial role of the contracting officer in government contracts.  Contracting officers are required by law to act impartially and function in a judicial role when resolving disputes.  The history is clear but very often overlooked.

Abraham Lincoln once 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, in addressing the duties of the contracting officer, said:  "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 contracting parties."

The most resounding pronouncement, however, was made by the Court of Claims in a 1950 opinion when, after referring to the 1912 Supreme Court opinion, the Court of Claims said the contracting officer must not represent either side but must "act as an impartial, unbiased judge."  The Court of Claims went on to say the contracting officer's function was "to act impartially, weighing with an even hand the rights of the parties on the one hand and on the other."  The court recognized the obligation of the contracting officer to represent the government's interests in procurement matters, but it went on to state clearly that "in settling disputes this is not his function." 

This is pretty clear.  So why are there so many complaints about contracting officers failing to act judicially when disputes arise?

It's time to get back to basics and take heed of judicial precedent.  And just to bring all this up to date, read FAR 1.602-2(b) again.  "Contracting officers shall ensure that contractors receive impartial, fair and equitable treatment."  It's mandatory.  Impartial, fair and equitable treatment.  Sounds like something Abraham Lincoln might say. 

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