We've written often about the role of the contracting officer. We also have emphasized the judicial role they must play. And yet, we continue to hear complaints that contracting officers are not even handed. They are partisan advocates for the government and grand guardians of the public purse. So.....
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 have said.
If you want to read more on this subject and see all the citations to case law, send us an email and we will send you a law journal article which covers the details.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Monday, June 10, 2019
Sunday, June 9, 2019
WHEN TO APPEAL A DEFAULT TERMINATION
The Armed Services Board of Contract Appeals (ASBCA) enforces the 90 day statutory appeal requirement of terminations for default (or cancellation). The 90 days runs from the time of the default termination or cancellation. Or does it? Look at what the ASBCA has said.
But first, look at the statute and the regulation. FAR 33.211(a)(4)(v) requires a complete notification of appeal rights. Requires. A complete notification includes the right to appeal to the ASBCA within 90 days of the notification provided by the regulation (derived from the statute).
In 2017, the Board dismissed an appeal for lack of jurisdiction in which the contractor failed to file within 90 days of the notice of termination. However, the Board did not examine whether the notification complied with FAR 33.211. See Military Aircraft Parts, ASBCA No. 60139, February 21, 2017. The only case cited by the Board to support its decision was the Board's prior decision in another Military Aircraft Parts case in which the notification complied with FAR 33.211. Scratch your head. The notification was defective in that it in no way complied with FAR 33.211. Based on the Board's own precedent, the Board should have examined whether the contractor was prejudiced by the government's failure to comply with FAR 33.211. The Board's inquiry would address what caused the failure to appeal within 90 days.
Importantly, in 2014, the Board denied the government's motion to dismiss an appeal filed after the 90 day deadline from the termination notice because the contractor was able to show it was prejudiced by a default notification which did not provide the contractor details about its rights to appeal to the ASBCA within 90 days (as required by FAR 33.211). Mansoor International Development, ASBCA No. 58423, September 4, 2014.
In Mansoor, the Board based its decision on a 1996 Federal Circuit opinion. The default notification merely said "Your company has the right to appeal under the disputes clause." The Board found this was deficient, and, under the Federal Circuit authority, the contractor proved it was prejudiced by saying "[w]e did not understand our appeal rights and obligations and MiDs was prejudiced by the failure of the Contracting Officer in March to explicitly recite them."
In 2016, the Board decided a case in which the default notification informed the contractor of its right to appeal the determination under the disputes clause cited in FAR 33.211. The Board found this notification was insufficient to start the running of the 90 days if the contractor could show it was prejudiced by the failure to be fully informed of its appeal rights. The contractor made no attempt to show prejudice and the appeal was dismissed for lack of jurisdiction. Bushra Company, ASBCA No. 59918, April 22, 2016,
The lesson is loud and clear. Contractors, insist that any final decision include the appeal notification requirements in FAR 33.211. Contracting officers, follow the requirements of FAR 33.211. Finally, contractors, when in doubt, appeal within 90 days of any default termination.
Other precedent at the Board interprets contractor's communications liberally in deciding whether notice of appeal is effective. A letter to the contracting officer may be enough if it adequately informs that the contractor intends to appeal or uses language indicating a dispute and request for relief.
Postscript: If the T for D notice is defective because it does not comply with FAR 33.211, is the T for D not also defective and therefore a nullity which would result in conversion to a T for C? Where a cure notice is required, the failure to provide one nullifies the T for D and results in conversion to a T for C. Why not the same result for failure to comply with FAR 33.211?
bill@spriggsconsultingservices.com
But first, look at the statute and the regulation. FAR 33.211(a)(4)(v) requires a complete notification of appeal rights. Requires. A complete notification includes the right to appeal to the ASBCA within 90 days of the notification provided by the regulation (derived from the statute).
In 2017, the Board dismissed an appeal for lack of jurisdiction in which the contractor failed to file within 90 days of the notice of termination. However, the Board did not examine whether the notification complied with FAR 33.211. See Military Aircraft Parts, ASBCA No. 60139, February 21, 2017. The only case cited by the Board to support its decision was the Board's prior decision in another Military Aircraft Parts case in which the notification complied with FAR 33.211. Scratch your head. The notification was defective in that it in no way complied with FAR 33.211. Based on the Board's own precedent, the Board should have examined whether the contractor was prejudiced by the government's failure to comply with FAR 33.211. The Board's inquiry would address what caused the failure to appeal within 90 days.
Importantly, in 2014, the Board denied the government's motion to dismiss an appeal filed after the 90 day deadline from the termination notice because the contractor was able to show it was prejudiced by a default notification which did not provide the contractor details about its rights to appeal to the ASBCA within 90 days (as required by FAR 33.211). Mansoor International Development, ASBCA No. 58423, September 4, 2014.
In Mansoor, the Board based its decision on a 1996 Federal Circuit opinion. The default notification merely said "Your company has the right to appeal under the disputes clause." The Board found this was deficient, and, under the Federal Circuit authority, the contractor proved it was prejudiced by saying "[w]e did not understand our appeal rights and obligations and MiDs was prejudiced by the failure of the Contracting Officer in March to explicitly recite them."
In 2016, the Board decided a case in which the default notification informed the contractor of its right to appeal the determination under the disputes clause cited in FAR 33.211. The Board found this notification was insufficient to start the running of the 90 days if the contractor could show it was prejudiced by the failure to be fully informed of its appeal rights. The contractor made no attempt to show prejudice and the appeal was dismissed for lack of jurisdiction. Bushra Company, ASBCA No. 59918, April 22, 2016,
The lesson is loud and clear. Contractors, insist that any final decision include the appeal notification requirements in FAR 33.211. Contracting officers, follow the requirements of FAR 33.211. Finally, contractors, when in doubt, appeal within 90 days of any default termination.
Other precedent at the Board interprets contractor's communications liberally in deciding whether notice of appeal is effective. A letter to the contracting officer may be enough if it adequately informs that the contractor intends to appeal or uses language indicating a dispute and request for relief.
Postscript: If the T for D notice is defective because it does not comply with FAR 33.211, is the T for D not also defective and therefore a nullity which would result in conversion to a T for C? Where a cure notice is required, the failure to provide one nullifies the T for D and results in conversion to a T for C. Why not the same result for failure to comply with FAR 33.211?
bill@spriggsconsultingservices.com
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